Abstract
The law recognises that non-contact sexual offences can cause harm and several offences were created to regulate non-contact sexual child abuse offences. Several of these offences deal with the exposure or causing exposure of children to child pornography or pornography. Sexual grooming of children and the “Exposure or display of or causing exposure or display of child pornography or pornography to children” are criminalised in sections 18(2) and 19 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. And offences in relation to exposing children to disturbing, harmful and age-inappropriate materials are criminalised in sections 24A(2) and (4) of the Films and Publications Act 65 of 1996. In this article the author considered the content of the offences of “Exposure or display of or causing exposure or display of child pornography or pornography to children” in relation to the other offences dealing with exposure of children to child pornography or pornography. Benchmarked against these criminal offences the author then conceptualised exposing learners, or causing the exposure of learners to child pornography or pornography as forms of educator misconduct. The seriousness that should be attached to these forms of misconduct was considered in light of the various criminal offences. The review of the criminal offences and the forms of educator misconduct brought the ineffectiveness of current forms of serious educator misconduct to the fore. There is no form of serious misconduct that covers the transgression of educators who expose learners to child pornography or pornography that can be classified as “XX”. In conclusion a suggestion is made with regard to how a new form of serious misconduct could be worded so as to cover this gap, eg An educator must be dismissed if he or she is found guilty of – (g) exposing a learner to or causing exposure of a learner to material classified as “Refused” or “XX” in terms of the Films and Publications Act 65 of 1996.
Highlights
Pornography is in the news because of StarSat's attempt to legalise the broadcasting of hard-core pornography on television in South Africa,1 and because of educators who have exposed their learners to pornography
The guiding principles used by the Film and Publication Board may be most valuable to presiding officers deciding cases where educators have exposed or caused learners to be exposed to child pornography or pornography
All the offences related to the exposure or causing the exposure of children to child pornography or pornography are non-contact sexual offences primarily aimed at protecting children from being exposed to material that may be disturbing, harmful to or age-inappropriate for them
Summary
Pornography is in the news because of StarSat's attempt to legalise the broadcasting of hard-core pornography on television in South Africa, and because of educators who have exposed their learners to pornography. For example, an educator sent a photograph of himself sitting naked in the bathtub to a. Enable, instruct or persuade B to perform a sexual act is not required for the offences of “Exposure or display of or causing exposure or display of child pornography or pornography to children”. The definition of “sexual abuse” in section 1 of the Children's Act 38 of 2005 includes (c) using a child in or deliberately exposing a child to sexual activities or pornography “Deliberately” indicates that intent is required for this offence. In terms of sections 24A(2) or (4) of the Films and Publications Act 65 of 1996, a person commits an offence if he or she knowingly broadcasts, distributes or exhibits to a child material classified as “Refused” (eg child pornography), “XX”, “X18”, or material which contains depictions, descriptions or scenes of explicit sexual conduct.. Chetty and Basson contend that the offence of failing to take reasonable steps to prevent access to child pornography provided for in section 27(3) of the Films and Publications Act 65 of 1996 may “in appropriate circumstances be extended to include those who have control over the child's access to the Internet”
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