Mandatory reporting of sexual abuse under the Sexual Offences Act and the ‘best interests of the child’

Abstract

It may not be necessary for doctors to report cases of consensual sexual penetration in terms of the Criminal Law (Sexual Offences Act and Related Matters) Amendment Act, where the children involved are under16 years old and their age difference is not more than 2 years, if such a requirement is unconstitutional. The mandatory reporting provision regarding such conduct may be unconstitutional if it violates the constitutional ‘best interests of the child’ principle and unreasonably and unjustifiably limits the constitutional rights of children to bodily and psychological integrity and privacy. It may also undermine the provisions of the Choice on Termination of Pregnancy Act regarding terminations of pregnancy by girl children, the confidentiality provisions of the Children’s Act regarding the distribution of condoms and contraceptives to sexually active children and their testing for HIV, and the efficacy of the Child Justice Act which aims to divert children away from the criminal justice system. It will also be unnecessary to report such conduct in terms of the Children’s Act if the doctor concerned does not believe on reasonable grounds that child abuse has occurred and the doctor is acting in the ‘best interests of the child’ as required by the Constitution and the Children’s Act.