n Stellenbosch Law Review = Stellenbosch Regstydskrif - Law and policy regulating educator-on-learner sexual misconduct

Volume 23, Issue 1
  • ISSN : 1016-4359
  • E-ISSN: 1996-2193



For quite some time now, the Department of Education has been attempting to rid schools of educators who commit sexual misconduct against learners. The question is why, with law and policy in place for regulating educator sexual misconduct, does the problem persist? In an attempt to answer this question, the author identifies and critically evaluates current law and policy regulating educator-on-learner sexual misconduct. Various problems with current law and policy are pinpointed and investigated.

The first problem identified is the conceptual confusion resulting from the use of various umbrella concepts in law and policy for identifying the problem of educator-on-learner sexual misconduct. The choice of sexual harassment as an umbrella concept in particular is found to be awkward. The choice of sexual harassment as an umbrella concept is related to the second problem, namely that labour law and policy are merely adapted to the sphere of education and applied to non-employment relationships such as the educator-learner relationship. The third dilemma identified is that educator-on-learner sexual misconduct is not clearly and sufficiently addressed in current education law and policy. The fourth problem identified is that sanctions for educator-on-learner sexual misconduct are not in line with the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, the Children's Act 38 of 2005 and the Children's Amendment Act 41 of 2007, resulting in educators found guilty of less serious forms of sexual misconduct facing more serious consequences than educators found guilty of more serious forms of sexual misconduct.

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