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Legal obligation to report child abuse: expert

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A child rights expert has emphasised that failing to report sexual abuse against children is a criminal offence. It comes on the heels of a widely circulated video alleging sexual abuse perpetrated by two well-respected brothers in the Bo-Kaap community, which family members were reportedly made aware of. Now in her 20’s, the alleged survivor said she was groomed from a young age and detailed how the abuse escalated.
Child rights consultant and member of the International Society for the Protection of Children, Joan van Niekerk, explained that police have to be notified and an investigation must take place.

“The law is very clear that when it comes to sexual abuse, trafficking and exposure of children to child pornography, that one has an obligation to report, failure (of) which is a crime.”

“That applies to every single citizen in South Africa- whether you’re a parent, religious leader, member of the community, a neighbour- where you know or have a reason for suspicion that a child is being abused, you must report.”

Section 110 of the Children’s Amendment Act[ 13] mandates ‘Any correctional official, dentist, homoeopath, immigration official, labour inspector, legal practitioner, medical practitioner, midwife, minister of religion, nurse, occupational therapist, physiotherapist, psychologist, religious leader, social service professional, social worker, speech therapist, teacher, traditional health practitioner, traditional leader or member of staff or volunteer worker at a partial care facility, drop-in centre or child and youth care centre’ to report when they suspect that a child has been abused ‘in a manner causing physical injury, sexually abused or deliberately neglected’.

Ordinary citizens are given the discretion to report abuse but are not compelled to do so in terms of section 110. The Sexual Offences Act,[14] however, compels all citizens who are aware of the sexual exploitation of children to report the offence to the police.

Van Niekerk pointed to a law passed in the US in 2010, where failure to report can result in a civil damage claim against parents or a community which knew about the abuse and failed to act. There is a bill currently before Parliament that seeks to extend the ‘failure to report’ crime to be inclusive of adults as well. The current legislation related to sexual violence perpetrated against children is inclusive of both physical and mental disabled people where children, such as those who are mute, are particularly vulnerable to sexual exploitation.

“I find this incredibly sad, that someone can abuse a disabled child or even an adult. But unfortunately, this does happen,” said Van Niekerk.

She surmised that this does, however, put parents in a difficult position because it is a “sensitive matter” and many people are reluctant to report abuse within the family.

“One of the important things to recognize is that people fear reporting. In some communities, there is retribution for reporting. Often families are very tight in terms of not allowing certain things which happen in the family to be reported outside of the family. However, that does not excuse your failure to report.”

Van Niekerk stated that there are mechanisms in law to protect both ‘reporters’ and children throughout the process. Apart from reporting, she strongly recommended involving trained professionals.

“We need a lot more education about what the law says about child abuse and about obligations to report. It’s important to know that we have, as a collective society, the responsibility to protect children.”

“It’s important to approach a social worker or psychologist with experience in child protection for further advice and also to assist the child.”
She explained that children often feel “less safe” after speaking out “because they fear the consequences once they disclose the abuse.”

“Sometimes parents themselves, once the abuse is reported, can feel very vulnerable and need the support of a professional person so that, as they go through the process, they are supported (and ensuring that) what happens is appropriate and according to how the investigation should unfold.”

Van Niekerk said that once abusers are not caught, they move on from one child they often develop a pattern of behaviour.

“This behaviour doesn’t stop when you reach your later years. I used to run a treatment programme for sexual offenders who didn’t go to prison when I was still living in Kwa Zulu Natal. Our oldest offender in that program was 84 and still actively offending against children.”

“You need to consider very carefully that when you don’t report, you’re not just failing to protect your own child but other children to whom the offender might move on,” said van Niekerk.

She expressed admiration for the officers who “conduct themselves in a way that is protective of children” but also noted that there are instances where officers question the validity of a child’s testimony, or points to the abuse having “happened a long time ago”.

Van Niekerk highlighted the difficulty of late reporting but stressed that a case can be made at any point during a survivor’s lifetime.

“You can be 70 and report the abuse you went through as a child.”

It is crucial to document the details of the official to whom the case was reported and to ensure the involvement of trained experts. She elaborated on the process, stating that police are required to refer the case to the Family Violence, Child Protection and Sexual Offences Unit.

“At the police station, they are not supposed to immediately interview child. They may not turn anyone away. Anyone who has been turned away must phone Childline and get Childline to help them start the process.”

“Not everybody can interview a child. It’s quite a specialized investigation process. From there on, the law takes its course,” said van Niekerk. VOC

According to van Niekerk, in order for a child to be removed, the Children’s Court would have to rule that the environment is unsafe or poses harm. In an emergency, a child can be moved by a social worker. This, she explained, will have to be justifiable in court.

“I would never recommend that you remove the child ever because you are actually abducting the child. You will be asked many questions about why you thought it was necessary.”

“Sometimes, you find that community members do intervene and with an investigation, charges are not taken forward in terms of (not) having permission to remove the child. The law can be very reasonable.”

“But where perhaps there are no other possibilities open to you, my belief is that the law will deal with that sensibly.”

VOC

 


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