Law Ignored Is Law Broken

By Lisa Vetten

Is a law that is disregarded better than no law at all? This is the question raised by the terrible incident at Jules High School, the law under scrutiny being the 2007 Sexual Offences Act.

It is in power of parents to change this situation To begin with, Section 54 of the act obliges any person who has knowledge that a sexual offence has been committed against a child to report this offence to the police immediately. The school did not do so. Instead, it would seem that the school’s receptionist showed the cellphone video clip to the victim’s sister and advised her to report the matter to the police.

At least two of three possible sexual offences against a child took place that the school ought to have reported. The first and obvious offence was rape. Alternatively, even if the sex was consensual, it is unlawful for children under the age of 16 to engage in sex.

This is termed “consensual sexual penetration” (or statutory rape) and must also be reported.

This is termed “consensual sexual penetration” (or statutory rape) and must also be reported.

This incident was also filmed with a cellphone and then viewed by numerous others, including teachers at the school. This is the second, reportable sexual offence in this matter. Section 19 of the Act makes it a crime to display – or expose others to – child pornography.

More recently, other children were still offering the video for sale. Yet at the time of writing, not one single person had been charged with this offence, suggesting that the SAPS and the National Prosecuting Authority – and children – are as unfamiliar with some of the Act’s clauses as the school’s staff.

Why the SAPS and NPA have not pursued these charges is unknown, but they are making a serious mistake in not doing so. Making and distributing these clips is not unique to Jules High School. Similar behaviour was reported at Mondeor High School by The Star newspaper and another incident in the Western Cape was reported by SABC3’s Special Assignment.

What these cellphone videos have in common is that they were filmed in secret and often while the girls concerned were in highly vulnerable positions because they were being raped and/or were drunk or drugged.

These girls did not (and may not) consent to being filmed. The violation constituted by the filming is then further compounded by the circulation of such clips. Where these videos typically earn boys the admiration – and perhaps even envy – of their peers, they shame and disgrace girls and are intended to do so.

This practice is nothing less than a sexualised form of bullying where boys (and perhaps even some girls) use these images to deliberately persecute or degrade girls.

Those in possession of this video, including those offering it for sale, must be charged as an essential first step in curbing what may be a growing trend.

In addition to not being well understood, the 2007 Sexual Offences Act is also silent on the role of the Department of Education in addressing sexual offences. Where the Act obliged the SAPS, the NPA and the departments of justice and health to develop policy and training around sexual offences for their staff, no similar obligations were placed on the Department of Education.

The education department was not included in government’s mandatory inter-sectoral committee on sexual offences. Given how much time children spend at school, this is a crucial oversight on the part of legislators.

In the final analysis, it is as bad to have no law as it is to have a law that is ignored. But where a non-existent law ensures that nothing can be done, unused laws represent the choice to do nothing. That such choices are made is deeply troubling.

Not implementing the law makes a hypocrite of the criminal justice system, which claims to promote gender equality and uphold the rights of children – yet fails to do so when the opportunity presents itself.

Failure to apply particular legal provisions also undermines the rule of law, illustrating to wrongdoers that the 2007 Sexual Offences Act is an irrelevant piece of paper from which no consequences flow when it is breached. This is the route to lawlessness and impunity. It is within the power of parents to change this situation. They should demand to know what training teachers, school management and school governing bodies have received around the 2007 Sexual Offences Act.

They should also insist on being shown the Department of Education’s protocols and guidelines around managing sexual offences and again, ask what training has accompanied the distribution of these documents.

Jules High is not the first school where sexual offences legislation and policy has been misapplied and it certainly won’t be the last.

Vetten is the director of the Tshwaranang Legal Advocacy Centre to End Violence Against Women

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