Not entirely omniscient
20 July 2017 20:39 (South Africa)
Opinionista Nikki Stein

Teachers who rape: Innocent even when they’ve been found guilty

  • Nikki Stein
    nikki stein
    Nikki Stein

    Nikki Stein, an attorney at SECTION27, is currently working on the right to basic education and the obligations of the government arising from that right. She obtained a BA (Law and Psychology) and an LLB from Wits University. She then went on to clerk for Justice Nkabinde at the Constitutional Court and completed her articles at Bowman Gilfillan Attorneys. In 2008/09 she obtained an LLM in International Human Rights Law from the University of Virginia in the United States. She returned to Bowman Gilfillan in June 2009 and joined SECTION27 in September 2011.

If we are to address the problems of sexual violence, how can it be that teachers found guilty of sexually abusing their pupils are allowed to return to their classrooms to continue teaching? One of the biggest obstacles to finding solutions for the problem is that many sexual violence cases are not reported. But if perpetrators go unpunished and can continue to abuse pupils with impunity, why would anyone risk speaking out? While we must protect the fair trial rights of accused rapists, we must also not lose sight of the rights of present and future victims of their conduct.

Recently, the KwaZulu-Natal department of education dismissed a teacher following a criminal conviction of sexual assault of a pupil. The teacher was convicted five years ago, two years after he was charged. Because he was given a suspended sentence, he was allowed to return to school to continue teaching. He was only called to a disciplinary hearing by the KwaZulu-Natal Department of Education and dismissed after the Public Protector intervened. He was therefore allowed to continue teaching for seven years after he sexually assaulted a pupil. Had Thuli Madonsela not intervened, he would still be in the classroom.

This is an intolerable case, but unfortunately not an isolated one. Together with Lawyers Against Abuse, Section27 is working on a case in which a school principal was convicted of rape through the criminal justice system in 2011, three years after he raped our client, a pupil at his school, on the school premises. The provincial department of education called the rapist to a disciplinary hearing on charges of gross misconduct. He was acquitted, despite his criminal conviction. He returned to the same school in the same position pending an appeal against his criminal conviction.

And he remained there until recently, when, after extensive correspondence, we persuaded the relevant department of education that it is appropriate to at least suspend a principal convicted of raping a pupil pending the outcome of his appeal. We are still trying to persuade the department of education that a teacher criminally convicted of raping a pupil should be removed from the school system entirely.

When we challenged the finding of not guilty at the principal’s disciplinary hearing, the department of education explained that the internal disciplinary process is separate from and runs parallel to the criminal process. A finding of guilt beyond reasonable doubt in our courts therefore has absolutely no bearing on the internal disciplinary process, even though they both arise from the same set of facts.

As a lawyer, I am familiar with the conceptually separate processes of a criminal trial for rape and an internal disciplinary hearing for gross misconduct:

 

  • To prove gross misconduct in a disciplinary hearing, one must show that on a balance of probabilities it is more likely than not that an employee materially breached his or her terms and conditions of employment.  One of these conditions of employment is the prohibition of any type of physical, emotional or sexual abuse of a learner. A disciplinary hearing is a relatively informal process; there is no legal representation and thus few technical legal steps.

 

  • A criminal conviction for rape requires proof beyond a reasonable doubt that the accused forced a person to have sex with him without her consent. The criminal process is rigorous, understandably, and involves evidence from witnesses and legal representation on both sides. Proof “beyond a reasonable doubt” is a high standard and favours false negatives over false positives; it derives from a belief that it is better to let some guilty people go free than convict innocent ones. In sum, it is a far more onerous standard of proof than that applied in an internal disciplinary hearing.

 

What follows from this is a simple, irrefutable logical syllogism: if there is proof of rape beyond a reasonable doubt, it is more probable than not that the rape occurred. Therefore, the outcome of a disciplinary hearing in the context of the accused having already been convicted of the same crime in a criminal court must be that the teacher is guilty of gross misconduct.

Why then, in the light of a criminal conviction of rape, are teachers allowed to continue to teach indefinitely? If I am convicted of a criminal offence in my job as an attorney, that would give my employer reason to dismiss me. If a teacher is convicted of raping a pupil on school grounds, on the other hand, this does not necessarily mean that he will be removed from the school environment. And, given the experience of these cases, it certainly does not mean he will be removed from the school environment with any sense of urgency.

What does a delay of five years mean for pupils at the school in KwaZulu-Natal? It means irreparable, preventable harm. It means that a rapist who has been shown beyond reasonable doubt to sexually abuse pupils in the school environment is allowed to return to that exact environment and given the opportunity to commit exactly the same crime against exactly the same vulnerable group.

On a broader level, and for pupils whose reality includes sexual abuse by the very people who are supposed to protect them from harm, it means that the risks associated with reporting a case of sexual abuse are not outweighed by the benefits. Would you report a case of sexual assault, risking humiliation and victimisation, knowing that the rapist is likely to return to your classroom?

The fact that many sexual violence cases are not reported is an enormous obstacle to finding a sustainable solution to the problem. In the school setting, this means that perpetrators go unpunished and can continue to abuse pupils with impunity. It means that, while we know that the problem of sexual violence in schools is “widespread”, we do not know how widespread it is. We do not know where it is. And most importantly, we do not know exactly who needs legal, medical, psychological or academic support and what support they need.

If we are serious about addressing problems of sexual violence, we need to stop discouraging people from reporting it. We need to know and understand the monster we are facing. We need to work together, as civil society and government, as well as between the different responsible government departments, to ensure that appropriate action is taken. While we must protect the fair trial rights of accused rapists, we must also not lose sight of the rights of present and future victims of their conduct.

Teachers who rape their pupils are innocent until proven guilty. But if and when they are proven guilty, they cannot continue to be treated as though they are innocent. DM

  • Nikki Stein
    nikki stein
    Nikki Stein

    Nikki Stein, an attorney at SECTION27, is currently working on the right to basic education and the obligations of the government arising from that right. She obtained a BA (Law and Psychology) and an LLB from Wits University. She then went on to clerk for Justice Nkabinde at the Constitutional Court and completed her articles at Bowman Gilfillan Attorneys. In 2008/09 she obtained an LLM in International Human Rights Law from the University of Virginia in the United States. She returned to Bowman Gilfillan in June 2009 and joined SECTION27 in September 2011.

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