INSIGHTS

Professional Indemnity Law

To report or not to report? The Duty to report sexual offences against children within the scope of the Children's Act & the Criminal Law (Sexual offences and related matters) Act.

Posted 18 June 2020

Thabiso Mthiyane under supervision of Karin Zybrands.

To report or not to report?

The Duty to report sexual offences against children within the scope of the Children’s Act & the Criminal Law (Sexual offences and related matters) Act.

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As society, understanding the implications of sexual abuse against children is very important, not only from a legal perspective but also from that of the developmental psychology of the child post the abuse.

Apart from being the morally and ethically right thing to do, as members of society, we all have a legal duty to report sexual or other abuse committed against children. However, for some, the Children's Act places a specific duty on them by virtue of their profession.

Take this common occurrence for example:

‘A child is taken by a parent to a hospital or clinic for a regular check-up, and upon examining the child, the attending doctor or nurse notices that even though the child’s presenting complaints are for some other unrelated ailment, they exhibit signs of sexual or some other form of abuse. Granted, there is a lack of concrete evidence to support and justify their suspicions, but the question still stands as to whether or not they are under a legal duty to report their suspicions to the relevant authorities. Furthermore, in the instance that they do want to make a report, who do they report to? And what is the accepted procedure of making such a report?’

As illustrated below, from a legal perspective, the answers to the above conundrum are not as straightforward as they may initially appear.

The rationale behind a professional’s obligation to report the sexual abuse of a child:

Due to their young age and being in a powerless position in society, children are more vulnerable and have less opportunity to protect themselves. Adults, therefore, have an increased responsibility to act on a child’s behalf, hence the Constitution in terms of section 28(2) making the best interests of the child of paramount importance in every matter concerning the child.

The main reason why adults occupying professional capacities in society carry a higher duty of care, is due to the professional ethical responsibilities by which they are bound and the heightened positions of authority that they occupy.

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More often than not, people are unsure as to how exactly they can go about reporting a case of sexual abuse against a child, more especially since the duty to report is set out in two different pieces of legislation, that being the Children's Act 35 of 2005 and the Criminal Law (Sexual Offenses and Related Matters) Amendment Act 32 of 2007.

Despite the fact that these two pieces of legislation both make provision for and are firmly positioned to do away with the affliction that is sexual abuse against children, there are subtle differences between them. It is important to note that these differences highlight the varying notions on the concept of reporting that the Acts prescribe.

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The Differences between the two Acts.

The Children's Act 35 of 2005 The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007

Applicable Section: Section 110 of the Act

  • In terms of section 110(1), any correctional official, dentist, homeopath, 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 who on reasonable grounds concludes that a child has been abused in a manner causing physical injury, sexually abused or deliberately neglected, must report that conclusion in the prescribed form to a designated child protection organisation, the provincial department of social development or a police official.
  • In terms of section 110(3)(a) & (b), the person who makes the report must substantiate their conclusion or belief to the person or body they are making the report. If such report is made in good faith, they will not be liable to civil action on the basis of making the report.

Applicable Section: Section 54 of the Act

  • In terms of section 54(1)(a) & (b), a person who has knowledge that a sexual offence has been committed against a child must report such knowledge immediately to a police official. Any person who fails to make the necessary report under this section will be considered to have committed a criminal offence, punishable with a fine or imprisonment of 5 years or both.
  • In terms of section 54(2)(c), any person who in good faith reports such reasonable belief or suspicion shall not be liable to any civil or criminal proceedings by reason of making such report.

When will the duty to report arise:

  • If the person making the report can conclude on reasonable grounds that a child has been:
    • Abused in a manner causing physical injury; or
    • Sexually abused; or
    • Deliberately neglected.

    Therefore, it is important to note that such a conclusion will be based on a balance of probabilities and influenced by an observation of signs and indicators.

When will the duty to report arise:

  • If the person making the report has:
    • Knowledge; or
    • A reasonable belief; or
    • Suspicion
    that a sexual offence has been committed against a child.

Who should the report be made to?

  • The report should be made to the following persons/bodies:
    • A designated child protection organisation; or
    • Their provincial department of social development; or
    • A police official.

Who should the report be made to?

  • The report should be made to the following persons/bodies:
    • A police official.


       

Applicable protocol to adhere to when making a report:

  • Regulation 33 of the Children’s Act Regulations, which specifically pertains to the reporting of abuse and/or the deliberate neglect of a child, makes provision for how a report which is made in terms of section 110 should be effected.
  • In terms of Regulation 33(1), such report must be on a form, which is identical to that of Form 22; and must be inclusive of any relevant particulars known or in possession of the person making the report. The person completing the report must do so to the best of their ability. It is also important to note that, where more than one child is exposed to the abuse, when making a report, a separate form must be completed for each child.
  • In terms of Regulation 33(2), the provincial department of social development, designated child protection organisation or police official to whom a report has been made, must submit the particulars of the abuse in a form identical to that of Form 23 to the Director-General for inclusion in Part A of the National Child Protection Register. Again, a separate form must be used for each child in the instance that the abuse affects more than one child.
  • The abovementioned forms can be accessed on the Department of Justice Website. Similar versions can be sourced from various websites online.

Applicable protocol to adhere to when making a report:

  • No particular protocol is expected to be adhered to by members of the public when reporting the sexual abuse of a child. However, it is important to stipulate that such a report can be made in one of two ways, which are:
    • By telephone/cell phone, or
    • In person
  • When making the report in person, the reporting party can do so at any police station in the country, irrespective of the fact that that police station is outside of the jurisdiction of either the victim's home or where the alleged sexual abuse occurred.

Consequences for a failure to report:

  • In terms of section 305(6) of the Children’s Act, a convicted person is liable to a fine or imprisonment for a period not exceeding ten years, or to both a fine and such imprisonment.
  • In terms of section 305(7) of the Children’s Act, a person convicted of such an offence more than once is liable to a fine or imprisonment for a period not exceeding twenty years, or to both a fine and such imprisonment.

Consequences for a failure to report:

  • A fine or imprisonment not exceeding five years or both. 

 

Conclusion

Regardless of the subtle differences between the Acts that have been highlighted above, the most imperative aspect that we must be cognisant of when it comes to the issue of reporting sexual abuse against children, is the fact that one cannot choose which Act to follow and simply ignore the other. Therefore, in cases of sexual abuse of children, it is required to report the abuse to a police official in order to ensure compliance with both Acts. The only time when an individual may report to a designated child protection organisation or the provincial department of social development and not to a police official, is when they are reporting abuse, which is not of a sexual nature, or the deliberate neglect of a child in terms of the Children’s Act.

Compiled by Thabiso Mthiyane under the supervision of Karin Zybrands.

 

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