Reversing the 'syndrome of secrecy': Peremptory reporting obligations in cases of child abuse and neglect

Reversing the ‘syndrome of secrecy’: Peremptory reporting obligations in cases of child abuse and neglect Mildred Bekink1 DOI: https://doi.org/10.17159/2413-3108/2021/vn70a774 Abstract Mandatory reporting laws are a controversial mechanism that require members of particular occupations to report cases of serious child maltreatment that they encounter in the course of their work to welfare or law enforcement agencies. In April 2019 a video went viral in which a woman filmed her colleague beating toddlers at a crèche in Gauteng. The crèche was closed, and arrests were made, including of the videographer. Given extent of violence and abuse against South African children, this paper investigates whether South African law adequately provides for the liability of those compelled to report child abuse but who fail to do so, why mandated reporters fail to report abuse, and how South Africa’s mandatory reporting rules should be amended to better serve their purpose. Introduction Child maltreatment negatively impacts the physical and psychological wellbeing of children.2 It is estimated that, globally, up to one billion children endured physical, sexual or emotional violence or neglect in the past year.3 Many South African children suffer severe abuse and neglect.4 A 2016 national prevalence study showed that one in every three children had experienced some form of physical or sexual abuse at some point in their lives, while one in eight had been neglected. 5 Another study indicated that almost 10 percent of boys and 15 percent of girls between the ages of 15 and 17 years have experienced lifetime sexual victimisation, which was also strongly associated with physical abuse, emotional abuse, neglect, family violence and other forms of victimisation.6 Many countries have enacted so-called mandatory reporting laws that require designated persons to report known or suspected cases of abuse or neglect to welfare or law enforcement agencies in an effort to detect these cases and allow for early intervention and treatment. 7 1 These laws are address the fact that child maltreatment tends to take place in private settings, 8 enshrouded in what has been called a ‘syndrome of secrecy’. 9 Abuse and neglect are most frequently inflicted on infants, who are pre-verbal, or other young children who are not able to resist, resolve the situation, disclose the experience or free themselves from the abusive environment. 10 Research has shown that children rarely report their own victimisation, while those inflicting the suffering are similarly unlikely to disclose it. 11 Through mandatory reporting laws, governments place a duty on members of particular occupations who typically deal with children in the course of their work and who may encounter cases of serious child maltreatment to report these incidents.12 This complies with the provisions of the United Nations Convention on the Rights of the Child (the CRC), 13 which stipulates that both protective and preventative measures should be implemented, including reporting, referral, investigation, treatment and follow-up of instances of child abuse, maltreatment and/or neglect. 14 In line with the CRC, the South African Constitution affords children protection against abuse and maltreatment.15 Section 28(1)(d) of the Constitution guarantees every child the right ‘to be protected from maltreatment, neglect, abuse or degradation’. Section 110 of the Children’s Act, 16 as amended, provides for the mandatory reporting of child maltreatment in that it compels certain designated persons to report any suspected child abuse or deliberate neglect to the relevant authorities. 17 Such reporting, when made in good faith, will endow the reporter with immunity against any claims of liability.18 In addition, section 54 of the South African Criminal Law (Sexual Offences and Related Matters) Amendment Act 19 (SORMA) compels a person who knows that a sexual offence has been committed against a child to report it to a police official.20 Failure to report such abuse could lead to criminal liability, and if found guilty, the offender could be fined, imprisoned, or both.21 The importance of the duty to protect children and to report incidents of abuse was highlighted in April 2019, when a video went viral on social media in which a caregiver at a crèche in Gauteng was seen repeatedly beating three toddlers in three separate incidents. 22 The crèche was closed and it was widely reported that the videographer who filmed her colleague abusing the children was among those who were arrested and would appear in court.23 She was accused of failing to protect the children from the assaults, instead choosing to film them. The abuse may never have been exposed had the videographer not been dismissed for another matter after which she allegedly tried to use the video to bribe the owner of the crèche.24 This is the first case in South Africa of a fellow caregiver being arrested and charged after filming an incident of abuse, as well as the first incident of an owner of a care facility being arrested on the basis of section 110 of the Children’s Act for failing to report the abuse against the children at the facility. 25 The case raises important considerations about the duty to protect 2 children and to report incidents of abuse and why mandated reporters fail to report abuse. It also raises questions about whether South African law adequately provides for the liability of those compelled to report child abuse but who fail to do so and how South Africa’s mandatory reporting rules can be amended to better serve their purpose. Mandatory versus voluntary reporting laws Whereas many countries have enacted mandatory reporting laws, others, for example England and New Zealand, have chosen not to do so. There has been controversial debate about the advantages and disadvantages of such laws. 26 The arguments against them include the perceived danger of over-reporting of innocent cases, which is seen as adversely affecting the interests of children and families. Mandatory reporting may also divert scarce resources from already known deserving cases, overload the child protection system, and result in children in need of protection losing out. 27 The three early adopters of mandatory reporting, namely the USA, Canada and Australia, have given detailed attention to the development of mandatory laws over several decades. 28 Other nations, including Brazil, Denmark, Finland, France, Israel and Norway, have created general legislated reporting duties. 29 Those supporting mandatory reporting highlight that apart from the immediate protection of children in danger, such laws acknowledge the seriousness of child abuse; prevent the revictimisation of children as well as the victimisation of other children, such as siblings; reinforce the moral and social awareness and responsibility of community members and increase the number of identified child abuse cases, enabling the criminal justice (...truncated)