Children as young as 10 could be held criminally liable for bullying if it is found beyond reasonable doubt that they were aware of their actions and consequences.

This is according to legal expert, founder and CEO of SafeSchool, Megan Harrington-Johnson of HJW Attorneys.

Harrington-Johnson explained that the Child Justice Act states that a child who was under the age of 10 at the time of the commission of an offence cannot be prosecuted.

However, this changes if they are 10 years and older, but under the age of 14. In that case, according to the law, they are presumed to be incapable of being able to form the intent to commit a crime. It is up to the State to prove otherwise.

“This assumption is rebuttable and if it were found beyond reasonable doubt that the child had the necessary criminal capacity, he or she could be held criminally liable for his or her offence,” she explained.

She added that, while “bullying” was not yet classified as a crime, there were several acts or behaviours that constituted bullying which could be classified as crimes in terms of the Criminal Procedure Act. These included crimen injuria, assault, extortion and attempted murder.

From the age of 14, a child is presumed to be fully aware and able to differentiate between right and wrong and can therefore be held criminally liable.

Harrington-Johnson added that these ramifications were however, restorative rather than punitive, meaning that the State sought to help children found guilty of crimes instead of punishing them.

“The Protection from Harassment Act also may grant relief to victims of bullying inter alia, by providing for protection orders, and therefore adds to the legislative framework available to victims,” she said.

Her comments come after reports of an increase of incidents of bullying in schools, the most recent being an incident involving a 13-year-old Doornpoort Primary School pupil in Pretoria, who committed suicide.

The teen sent her friend an image of herself, which was distributed among pupils on various WhatsApp groups. The pupils mocked and shamed her.

Johnson said bullying was far more widespread today and more “adult”.

She said the exposure to explicit content was brought about by the children’s often unsupervised access to smartphones and social media platforms.

“Bullying now happens on a 24-hour basis as it can happen remotely over smartphone device and often anonymously on platforms where children hide their identity,” she said.

Open communication

Harrington-Johnson added that the sending of nude pictures (sexting) was also growing and that such pictures were distributed further.

“As regards to ‘sexting’, we are seeing this with children as young as 6. The average age for sexting in SA is 10. We are also seeing children daring each other into doing dangerous and/or explicit things on social media (most especially on WhatApp),” Harrington Johnson added.

According to a 2018 Ipsos Global Advisor study, South Africa had the highest incidents of cyberbullying.

In the study, 20 793 people were interviewed from 28 countries.

To avoid more incidents of cyberbullying, parents have been urged to openly communicate with their children, teachers and schools, especially when allegations are levelled against their children or by them.

“Never allow children unsupervised access on a smart device – you wouldn’t let them visit a stranger’s house without supervision, why would you let them play around on the internet (which is essentially just another, very dangerous and unknown world with lots of strangers) on their own?” Harrington-Johnson added.

(Source: News24)