PER/PELJ- Pioneer in peer-reviewed, open access online law publications

Author Susan A Coetzee

Affiliation University of South Africa

Email Coetzsa1@unisa.ac.za

Date Submitted 19 September 2023

Date Revised 24 April 2024

Date Accepted 24 April 2024

Date Published 31 May 2024

Editor Prof C Rautenbach

Journal EditorProf W Erlank

How to cite this contribution

Coetzee SA "A Legal Perspective on Sexual Grooming Behaviours as Professional Boundary Violations" PER / PELJ 2024(27) - DOI http://dx.doi.org/10.17159/1727-3781/2024/v27i0a16890

DOI http://dx.doi.org/10.17159/1727-3781/2024/v27i0a16890

A literature review revealed that sexual grooming can be counteracted

in public schools by focussing on educators' professional boundary

Abstract

	A literature review revealed that sexual grooming can be counteracted

Keywords

Educator-on-learner sexual grooming; legal perspective; professional boundary violations; South African Council for Educators.

……………………………………………………….

1 Introduction

Professional boundaries are set where there is a need to protect those whose safety and wellbeing were entrusted to a professional and who are in unequal relationships with the professional. 1

 Susan A Coetzee. BA Ed BEd MEd DEd (UNISA) Certificate Programme in Law LLB Advanced Short Course in Outcomes-based Assessment in Higher Education and Distance Learning and Learning Program: Foster and Maintain Customer Relations. Professor, Department of Educational Leadership and Management, University of South Africa. E-mail: coetzsa1@unisa.ac.za. ORCiD: https://orcid.org/0000-0002-4503-1367.

1 ATRA Managing Professional Boundaries 3.

For example, learners who are placed in the care of educators are protected by professional boundaries set for educators. Professional boundaries are determined by a professional's defined tasks and roles and the prescribed ethical standards that must be adhered to while executing such. 2

2 Wojciechowska "Managing Personal and Professional Boundaries" 151.

Professional boundaries shape professional relationships. 3

3 Morgan 2016 https://www.headteacher-update.com/best-practice-article/ safeguarding-maintaining-professional-boundaries/147893/.

Educators have a duty to vigilantly protect these boundaries and their professional relationships with learners. 4

4 Morgan 2016 https://www.headteacher-update.com/best-practice-article/ safeguarding-maintaining-professional-boundaries/147893/; Sheldon-Lakey v S (CA 42/2014) [2016] ZANWHC 33 (14 July 2016) (hereafter Sheldon-Lakey case) para 18.

Failing to do so would constitute a professional boundary violation, 5

5 Coetzee 2015 PELJ 2127.

which could be dealt with as a transgression of the profession's ethical code and or misconduct. 6

6 See section 2.

Coetzee 7

7 Coetzee 2015 PELJ 2127.

contends that "[a]ll forms of educator sexual misconduct presuppose a boundary transgression". That this is true about sexual grooming is evident from the fact that groomers intentionally aim to create "boundary diffusion" and "role confusion". 8

8 Spiegel 2003 cited in Bennett and O'Donohue 2014 JCSA 961.

Educators who groom commonly form dual relationships in order to blur the lines and make the roles less defined during the grooming process, and to enable them to re-establish the diffused boundary or revert to the educator's role when it is necessary to conceal the inappropriate behaviour or relationship or defend an allegation. 9

9 ATRA Managing Professional Boundaries 10; Queensland College of Teachers Professional Boundaries 4.

It is the discernible relationship between grooming behaviours and educator boundary violations which makes addressing inappropriate boundary violations the best way to battle educator-on-learner sexual grooming. 10

10 Christopher "Specific Concerns for Teachers, School Counselors, and Administrators" 29; Patterson and Austin 2008 ASBJ 19.

That sexual grooming is regarded as an offence that goes hand in hand with professional boundary invasion was mentioned in Ncakeni and Gauteng Department of Education. 11

11 Ncakeni and Gauteng Department of Education PSES58-13/14GP (23 April 2014) (hereafter Ncakeni arbitration) paras 118, 122.

The arbitrator alluded to the fact that educators must keep a professional distance between themselves, learners and parents, and not make either learners or parents emotionally, or otherwise one can add, dependent on them. Of course, that is exactly what sexual groomers aim for and why they look for a vulnerability to exploit or a need to fulfil. 12

12 Badenhorst Grooming Process in Child Pornography 21; Bennett and O'Donohue 2014 JCSA 964; Lanning and Dietz 2014 JIV 2825; Strydom v S (A463/2014) [2015] ZAGPPHC 272 (5 February 2015) (hereafter Strydom case) para 9.

While performing the desk study for the article "Sexual Grooming of Children in Teaching as a Trust Profession in South Africa", the author discovered that there are clear links between sexual grooming behaviours and professional boundary violations, which prompted her to look into this further. She discovered that there are no guidelines in South Africa for educators regarding professional boundary violations. Educators' professional boundary violations are dealt with in terms of the South African Council for Educators (SACE) Code of Professional Ethics (as a breach of set professional standards) and/or in terms of the Employment of Educators Act 76 of 1998 (as misconduct). This article has developed from the belief that dealing early with boundary violations, either as breaches of professional standards or misconduct, can prevent sexual grooming.

The article is divided into five sections. Following on the introduction, the author offers a legal perspective on South African educators' professional boundary violations before looking at different processes and guidelines suggested to determine the difference between boundary violations that are benign and those that constitute sexual grooming behaviour. Thereafter the author discusses grooming behaviours that are tantamount to the violation of professional relationship boundaries which protect learners from: abuse of power and trust, inappropriate communication, educators exceeding their tasks and roles, educators physically abusing learners and educators invading learners' personal space and privacy. In the last part of the article conclusions are drawn and recommendations made on how sexual grooming can be counteracted in schools by focussing on professional boundary violations. Suggestions are further made on how section 17(1)(f) of the Employment of Educators Act 76 of 1998 can be amended to also cover sexual grooming as a form of serious misconduct.

2 A legal perspective on South African educators' professional boundary violations

Teaching as a profession in South Africa is regulated by SACE, 13

13 Section 2 of the South African Council for Educators Act 31 of 2000 (hereafter SACE Act).

which controls entry into the profession and requires educators to be registered, to undergo professional development, and to adhere to the ethical and professional standards as set out in the SACE Code of Professional Ethics. Professional boundary violations would constitute a breach of this code and may draw sanctions ranging from a caution, a reprimand, a fine, immediate suspension, or temporary or permanent deregistration. 14

14 SACE date unknown https://www.sace.org.za/assets/documents/uploads/ sace_31646-2023-01-17-0000_SACE_Booklet_Yellow_BOOK_OF_ETHICS__

proof_5.1.pdf paras 8.2.1 to 8.2.4, 8.3.

An educator that is deregistered may not teach in any school in South Africa. 15

15 Section 2(2) of the SACE Act.

Permanent deregistration ends the educator's teaching career, but a dismissed educator will still be able to find another teaching post at another school.

An educator who sexually grooms a learner breaches several professional standards in relation to teaching as a profession as set out in the SACE Code of Professional Ethics. 16

16 SACE date unknown https://www.sace.org.za/assets/documents/uploads/ sace_31646-2023-01-17-0000_SACE_Booklet_Yellow_BOOK_OF_ETHICS__ proof_5.1.pdf (hereafter SACE Code of Professional Ethics) paras 2.1, 3.5, 3.6, 3.8-3.16.

In general an educator who sexually grooms learners breaches the professional standard of upholding and promoting learners' human rights, which gives expression to the constitutional and statutory imperative in this regard. 17

17 SACE Code of Professional Ethics para 2.3. See the discussion of these imperatives in Coetzee 2018 CARSA 32-35.

Abusing their power and the trust put in them, or exceeding their professional tasks and roles means the educators fail to act in a manner that upholds teaching as a noble calling 18

18 SACE Code of Professional Ethics para 2.1.

and promotes the dignity and status of the teaching profession. 19

19 SACE Code of Professional Ethics para 7.2. Also see ATRA Managing Professional Boundaries 3; Newman 2007, cited in Wurtele 2012 Children and Youth Services Review 2450.

As is discussed below, sexual grooming behaviours often include the use of inappropriate and or sexualised language, which constitutes a violation of the communication boundaries. Educators are expected to use appropriate language, to use language that will elicit respect from learners, to refrain from sexting with learners and from exposing learners to or sending pornographic material to learners. 20

20 SACE Code of Professional Ethics paras 3.11-3.14.

Should the sexual grooming behaviours include physical contact, the educator could be held accountable for breaching physical boundary prohibitions such as not humiliating or physically or psychologically abusing or sexually harassing a learner; 21

21 SACE Code of Professional Ethics paras 3.5, 3.9.

not having improper physical contact with learners; 22

22 SACE Code of Professional Ethics para 3.6.

not courting learners; 23

23 SACE Code of Professional Ethics para 3.8.

or not having any form of sexual relationship with learners. 24

24 SACE Code of Professional Ethics para 3.10.

Certain sexual grooming behaviours such as giving children alcohol, drugs or cigarettes 25

25 See s 10(1) of the Liquor Act 59 of 2003 and s 4(1) of the Tobacco Products Control Act 83 of 1993.

and exposing and/or displaying pornography to learners 26

26 Section 19 of the South African Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (hereafter the Sexual Offences Act).

are illegal, and as such constitute a transgression of the professional standards that an educator may not contravene South African law 27

27 SACE Code of Professional Ethics para 7.6.

and engage in illegal activities. 28

28 SACE Code of Professional Ethics para 7.9.

Educators violating the professional boundaries by invading learners' personal space and privacy transgress the standard requiring them to respect learners' right to privacy and confidentiality. 29

29 SACE Code of Professional Ethics para 3.1.

The author investigated whether current forms of serious misconduct as provided for in section 17 of the Employment of Educators Act 76 of 1998 can cover boundary violations occurring as part of sexual grooming. Section 17(1)(c), "having a sexual relationship with a learner of the school where he or she is employed", has been used in Gauteng Department of Education and Rasekhula 30

30 Gauteng Department of Education and Rasekhula ELRC990-21/22GP (25 April 2022) (hereafter Rasekhula arbitration) paras 15, 16, 19.

to deal with sexual grooming. The author argues that this form of serious misconduct covers only physical boundary transgressions and not non-contact or initial grooming behaviour that precedes the sexual relationship.

In the SADTU obo July and Northern Cape Department of Education 31

31 SADTU obo July and Northern Cape Department of Education PSES610-18/19NC (14 May 2019) (hereafter SADTU obo July arbitration) paras 7, 28, 38.

the educator was charged (as an alternative count) for transgressing section 17(1)(f) in that he had made sexual utterances on Facebook messenger. Section 17(1)(f) reads "(f) causing a learner or a student to perform any of the acts contemplated in paragraphs (a) to (e)". Literally interpreted this means an educator causes a learner to commit forms of serious educator misconduct such as theft, bribery, corruption regarding examinations or progression, sexual assault on a learner, having a sexual relationship with

a learner, assault, or the possession of illegal substances. The arbitrator thus interpreted the section to mean that the misconduct on the part of the educator was that he caused the learners to perform a sexual act. Because the section is ambiguous, this interpretation can be questioned. It does not make sense to make causing a learner to commit a form of educator misconduct a specific further form of serious educator misconduct. One could argue that "causing a learner to perform a sexual act" is not covered by this section. 32

32 Unfortunately, the Memorandum on the Objects of the Education Laws Amendment Bill, 2000 does not include an explanation on the reason it was necessary to insert this sub-section – see the Education Laws Amendment Bill [B48-2000].

Ultimately, none of the forms of serious misconduct that draw mandatory dismissal satisfactorily covers either the boundary violations inherent in sexual grooming or sexual grooming as such.

Sexual grooming is also addressed as section 18-misconduct. The arbitrator in Diholo and Gauteng Department of Education 33

33 Diholo and Gauteng Department of Education PSES933-18/19GP (9 May 2019) (hereafter Diholo arbitration) para 36.

dealt with sexual grooming as a transgression of section 18(1)(g), that is, the abuse of the educator’s position to advance or hamper the interests of any person, and in Sogoni and Western Cape Education Department 34

34 Sogoni and Western Cape Education Department PSES407-19/20WC (17 February 2020) para 9, 93, 121.

as a transgression of section 18(1)(q), that is, conducting him- or herself in a manner unbefitting to the teaching profession. In the Ncakeni arbitration 35

35 Ncakeni arbitration paras 63, 113, 123.

the educator was found guilty of violating section 18(1)(q) after it was determined that asking the learner for her cell phone number, setting up meetings after school, making sexually suggestive remarks, making love proposals and stroking the learner's thigh were all examples of grooming.

Although section 18 misconduct does not draw compulsory dismissal, Coetzee argues that sexual grooming in trust professions should be regarded as a dismissible offence. 36

36 Coetzee 2023 PELJ 23.

In the Davids and Western Cape Department of Education 37

37 Davids and Western Cape Department of Education ELRC767-21/22WC (6 May 2022) (hereafter Davids arbitration) paras 25-26.

the arbitrator explained that even though the educator had not been charged with a section 17 offence for which dismissal was mandatory, the seriousness of the offence (which included grooming the learner) warranted a dismissal because the educator had destroyed the trust relationship and proved to pose a risk to the school. The arbitrator dealt with sexual grooming as a section 18(1)(dd) transgression, arguing that the educator had committed the criminal offence of the sexual grooming of a child as set out in section 18 of the Criminal Law (Sexual Offences and

Related Matters) Amendment Act 32 of 2007. In the Ncakeni arbitration it was also held that sexual grooming is a dismissal offence. 38

38 Ncakeni arbitration para 113.

An investigation into the links between the professional boundary violations which form part of sexual grooming and the forms of educator misconduct brought the following to the fore: 39

39 Sections 17(1)(b) and (c), 18(1)(g), (q) and (dd) of the Employment of Educators Act 76 of 1998.

Section 18(1)(g): "misuses his or her position in the Department of Basic Education or a school or adult learning centre to promote or to prejudice the interests of any person." This will most probably be the best choice to address professional relationship boundaries in relation to the abuse of power and trust, and the overstepping of the boundaries implicit in the performance of tasks and roles. Regarding the transgression of physical boundaries, the argument could be made that, depending on the facts of the case, the educator transgressed section 18(1)(g) because the educator acted contrary to the child's best interests and the realisation of the right to education as a result of the physical abuse.

Section 18(1)(q) - "while on duty, conducts himself or herself in an improper, disgraceful or unacceptable manner." This would be suitable to deal with violations of professional boundaries in relation to communication and to tasks and roles, and could also be used for physical boundary violations.

Section 17(1)(b) - "committing an act of sexual assault on a learner …" This could be used for transgressions of physical boundaries when the transgression constitutes sexual assault that is perpetrated as part of the grooming process.

Section 17(1)(c) - "having a sexual relationship with a learner of the school where he or she is employed." This could be used if penetrative sexual acts were part of the grooming.

Section 18(1)(dd) - "commits a common law or statutory offence." This could be alleged where an educator gives children alcohol, drugs or cigarettes, and exposes them to pornography or X-rated films, or where the elements of sexual grooming, rape, statutory rape or any other sexual offence could be proved. 40

40 See s 10(1) of the Liquor Act 59 of 2003; s 4(1) of the Tobacco Products Control Act 83 of 1993; s 19 of the Sexual Offences Act.

Although it may seem illogical to charge an educator only with misconduct and not serious misconduct in these instances, it should be kept in mind that dismissal is available, albeit not as mandatory sanction. 41

41 Coetzee 2011 CARSA 53-55.

To be able to allege successfully that an educator has committed a professional boundary violation it is essential to distinguish between boundary violations which are accepted as normal and boundary violations that are part of grooming tactics.

3 Distinguishing between normal and grooming behaviour

It is difficult to tell apart normal behaviour between an educator and learner that may constitute legitimate boundary violations and behaviours that is part of grooming behaviour. 42

42 Acceptable boundary transgressions could include instances such as where a pre-school educator assists a learner who had an accident to put on clean clothes or an educator puts an arm across the shoulders of a learner who has just learned her parents have been in an accident. Such conduct will constitute an inappropriate boundary transgression when it is performed to satisfy the needs of the educator rather than those of the learner (see ATRA Managing Professional Boundaries 3, 5).

This contention is supported by the finding of Winters and Jeglic 43

43 Winters and Jeglic 2017 Deviant Behavior 727, 731.

in a study conducted amongst 363 undergraduate students during which participants were unable to distinguish between grooming behaviours and seemingly normal social interactions. In a later study Gushwa, Bernier and Robinson 44

44 Gushwa, Bernier and Robinson 2019 JCSA 145.

identified a need to teach K-12 student teachers in the United States of America how to distinguish between acceptable behaviour and behaviour that could constitute boundary violations.

The main reason why it is difficult to distinguish between grooming behaviour and acceptable behaviour is that sexual groomers commonly intentionally choose behaviour that closely resembles innocent social behaviour. 45

45 Bennett and O'Donohue 2014 JCSA 963; O'Leary, Koh and Dare Grooming and Child Sexual Abuse 2; Winters and Jeglic 2017 Deviant Behavior 724-725.

Furthermore, sexual groomers create positive relationships with colleagues and parents so that when an allegation is brought, colleagues and parents will tend to give the accused the benefit of the doubt. 46

46 O'Leary, Koh and Dare Grooming and Child Sexual Abuse 8; Strydom case para 3; Tanner and Brake 2013 http://kbsolutions.com/Grooming.pdf 5.

The groomer creates a specific view that will counter any other view of inappropriateness. Munro and Fish 47

47 Munroe and Fish Hear no Evil, See no Evil 10, 19.

refer to this as confirmation bias, which is based on the premise that once you've formed an opinion, it's difficult to change it and evidence supporting a contrasting view will be overlooked or most probably be interpreted to support the existing view.

ATRA 48

48 ATRA Managing Professional Boundaries 6. ATRA stands for Australasian Teacher Regulatory Authorities and consists of the collective regulating the teaching

maintains that detecting grooming behaviours is even more difficult where educators live and work in rural or small, close-knit communities,

profession in Australasia, which refers to Australia, New Zealand, and the neighbouring islands (see ATRA date unknown https://www.atra.edu.au/).

have a "dual" relationship with learners such as being a coach or extra-curricular instructor for activities outside of school, and use social media as part of their professional practice. To these Graham, Bahr, Truscott and Powell 49

49 Graham et al Teachers' Professional Boundary Transgressions 5, 34.

add educators who frequently work alone with learners and educators acting as house parents in hostels. Over and above these, the Queensland College for Educators 50

50 Queensland College for Educators Professional Boundaries 4.

lists young, inexperienced educators, who will because they are only a few years older than some learners and have a lot in common with them tend to see these learners as their peers.

Bennett and O'Donohue 51

51 Bennett and O'Donohue 2014 JCSA 971.

propose a two-step process that can be used to assess whether behaviour constitutes sexual grooming behaviour. The first step is to determine whether the behaviour in and of itself is inappropriate. If it is, the second step is to determine whether it is reasonable to argue that this inappropriate behaviour increases the likelihood of future child sexual abuse. It may be difficult to assess "a likelihood" of future sexual abuse. The guidelines of the New South Wales Ombudsman for the Protection of Children 52

52 New South Wales Ombudsman for the Protection of Children 2013 https://www.childabuseroyalcommission.gov.au/sites/default/files/OMB.0015.001.0140.pdf.

may offer a solution. It suggests that for violations of professional boundaries to constitute grooming behaviour there must be

evidence of a pattern of conduct that is consistent with grooming the alleged victim for sexual activity, and that there is no other reasonable explanation for it.

A four-step test that combines the suggested process of Bennett and O'Donohue 53

53 Bennett and O'Donohue 2014 JCSA 971.

and the guidelines of the New South Wales Ombudsman for the Protection of Children 54

54 New South Wales Ombudsman for the Protection of Children 2013 https://www.childabuseroyalcommission.gov.au/sites/default/files/OMB.0015.001.0140.pdf.

is proposed to determine whether behaviour constitutes a boundary violation and sexual grooming behaviour. Step 1: Is there evidence of inappropriate behaviour – that is, inappropriate in terms of the professional code and or law regulating educators' employment? Step 2: If there is evidence of inappropriate behaviour, is there a reasonable explanation that would render the behaviour appropriate? Step 3: If there isn't a reasonable explanation that would render the behaviour appropriate, a boundary violation is established, and the next question is whether there is evidence of a pattern of this behaviour? Step 4: If there is evidence of a pattern, does this pattern signify sexual grooming behaviour, that is, behaviour intended to encourage or persuade a child to perform a sexual

act and or behaviour intended to diminish or reduce any resistance or unwillingness on the part of the child to engage in a sexual act? It is obvious that the pattern of behaviour would reveal evidence of the educator's intention. 55

55 Victoria Family and Community Development Committee 2013 https://apo.org.au/node/36348 466.

4 Sexual grooming behaviour as professional boundary violations

To determine whether the pattern signifies the intention to sexually groom, the pattern could be analysed in connection to the violation of professional relationship boundaries, which protect learners from: abuse of power and trust, inappropriate communication, educators exceeding their tasks and roles, educators invading learners' personal space and privacy, and educators physically abusing learners. It should be noted that, while distinguishing between different forms of boundary violations can help in identifying a pattern, grooming behaviour will almost certainly include the violation of several different forms of boundaries.

4.1 Professional power and trust boundaries

All boundary violations, irrespective of the profession, can be equated with an abuse of power and exploitation. 56

56 Hook and Devereux 2018 BJPsych Advances 374; Peterson 1992, cited in Wurtele 2012 Children and Youth Services Review 2450.

According to Hook and Devereux, 57

57 Hook and Devereux 2018 BJPsych Advances 374.

sexual boundary violations are characterised by the misuse of power to exploit some aspect of a person's sexuality for personal gain. The description of a breach of educators' professional boundaries by the Australasian Teacher Regulatory Authorities 58

58 ATRA Managing Professional Boundaries 3.

as the exploitation of the power imbalance inherent to an educator-learner relationship also emphasises the abuse of power and exploitation as characteristics of professional boundary violations. The fact that sexual grooming is already exploitative 59

59 Shakeshaft 2013 Kappan 10, 12.

reinforces the argument that grooming behaviour will constitute a violation of the professional power boundaries.

In Mugridge v S 60

60 Mugridge v S (657/12) [2013] ZASCA 43 (28 March 2013) paras 43, 45.

Shongwe JJA and Erasmus AJA, while emphasising the important role that the power imbalance plays in the sexual grooming of children, mentioned that adults abuse the child's propensity to trust adults and to do as adults told them to do. Govindjee AJ also emphasised the fact that the educator has leveraged his power and the esteem of his position as

educator to groom the learner in Le Roux v State. 61

61 Le Roux v State (A & R 25/2018) [2021] ZAECGHC 57 (13 May 2021) (hereafter Le Roux case) para 33.

This position of authority and the power imbalance between educators and learners are ever-present and based on several factors such as their position as educators (which relates to their unique position of trust, care, authority and influence over their learners), their age, their experience, financial power and physical power. 62

62 ATRA Managing Professional Boundaries 3; Davids arbitration paras 48, 63; Rasekhula arbitration para 15.

A professional boundary violation presupposes the creation of an abusive relationship because the educator, by overstepping boundaries, shifts the focus from the learners' welfare to his or her own needs and that is done at the expense of the learners. 63

63 ATRA Managing Professional Boundaries 3; Newman 2007, cited in Wurtele 2012 Children and Youth Services Review 2450.

Conduct that constitutes boundary violations thus do not have legitimate educational purposes. This is confirmed by the Canadian Centre for Child Protection's 64

64 Canadian Centre for Child Protection Child Sexual Abuse by K-12 School Personnel 29.

description of boundary violations as entailing educators breaching the intent of the relationship and exploiting their legitimate access to learners to meet their personal needs, rather than those of the learners. Mudau AJ indeed emphasised in Strydom v S that the educator had abused his position of authority and trust for his own ulterior motives and selfish interests. 65

65 Strydom case para 8.

Examples of power-related grooming behaviour constituting professional boundary transgressions include the abuse of power by threatening the learner with poor or failing grades or denying him or her a position in a team or by making promises such as ensuring a learner will pass an examination or progress to the next grade. 66

66 Queensland College of Teachers Professional Boundaries 5; Limpopo Department of Education and Mathekga ELRC200-21/22LP (12 November 2021) (hereafter Mathekga arbitration) paras 4, 8, 21.

When caught, educators who groom tend to minimise the power imbalance in the relationship by arguing that the learner had either consented to the behaviour or was a willing participant in it. In the Rasekhula arbitration 67

67 Rasekhula arbitration paras 13,16.

the arbitrator rejected the educator's argument that the learner was not an innocent party but a willing participant, implying that they were equals and that the learner had consented. The arbitrator made specific mention of the learner's comment that "she feared that if she did not give the employee her contact number, the employee would drop her marks or fail her" and stated that the learner's part in the relationship did not absolve the educator from his own wrongdoing. Consent is vitiated if the learner believes the educator

has the power to cause her or him harm on refusal to cooperate. 68

68 Minnie The Grooming Process and the Defence of Consent 23; Snyman Criminal Law 365.

Compliance does not equate to consent. 69

69 Le Roux case para 9; Snyman Criminal Law 126, 365.

Not even putative consent can be claimed in exoneration because the manipulative and exploitative nature of sexual grooming will negate any claim of a bona fide belief on the part of the appellant that the victim had consented to the sexual relationship. 70

70 Minnie The Grooming Process and the Defence of Consent 9, 79; Snyman Criminal Law 126-127.

The definition of consent in the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 71

71 Section 1(2) of the Sexual Offences Act.

as "voluntary and uncoerced agreement" supports the above argument. Furthermore, sex crimes against children inherently constitute a boni mores breach, which voids the consent defence. 72

72 Minnie The Grooming Process and the Defence of Consent 9, 79.

This is especially true when it occurs inside the trust relationship between educator and learner and where the learner is younger than sixteen. 73

73 Minnie The Grooming Process and the Defence of Consent 10; Snyman Criminal Law 98, 126-127.

It remains the educators' professional obligation to ensure that the relationship remains professional. 74

74 Christopher "Specific Concerns for Teachers, School Counselors, and Administrators" 29.

Another defence mechanism educators who groomed and are caught use is to link the reasons for having overstepped the professional boundary to their professional roles. For example, in the Ncakeni arbitration 75

75 Ncakeni arbitration para 76.

the educator claimed that he visited the learner after hours to chat with her parents about extra lessons to help her with her learning problem. The arbitrator argued that the educator’s singling out the specific learner as requiring individual attention on the grounds that she frequently complained during class, that she had not grasped the work and had not submitted her assignment was a ploy intended to justify his seeing her individually. In reality, just one learner had submitted the assignment, and the educator had not reviewed the learner's results or consulted with her class teachers first to establish whether she had a learning problem.

4.2 Professional communication boundaries

Communication, which takes place in the form of "voice, sound, data, text, video, animation, visual images, moving images and pictures, signals or a combination thereof", plays an enormous role in sexual grooming. 76

76 Section 1 of the Electronic Communications Act 36 of 2005.

The violation of communication boundaries can be linked to the obtaining and giving of inappropriate information and/or to the actual grooming.

Information is valuable for groomers, 77

77 USA Department of Education Educator Sexual Misconduct 32.

since they need that to develop a bond with the victim and to win trust, establish exclusivity, ensure secrecy, lower defences and resistance, and prevent detection. 78

78 Black et al 2015 Child Abuse Neglect 141; Courtois and Alpert "MIND F*CK" 242.

The educator may wish to solicit any information that indicates a need or vulnerability the learner may have, that establishes where the child lives, whether there is adult supervision when the child is at home, whether the child has the means to communicate privately and whether the child is alone. The obtaining and sharing of inappropriate information to ensure secrecy and establish exclusivity are discussed under section 4.5.

Inappropriate language and communication are used as a grooming tactic to normalise the inappropriate relationship and to desensitise the child to sexual activity. Some indicators of professional communication boundary violations are communication that is personalised, sexual in nature, role-inappropriate, geared at isolating the learner, or unpleasant and sarcastic in nature. These indicators of inappropriateness may exist separately or concurrently.

Role-inappropriate communication includes terms of endearment, pet names, confessions of love or romantic feelings, and compliments or comments on the learner's beauty. Examples include calling a learner "buddy", "mate", "pal" or "friend", "baby", "honey", "angel", "babe", "princess", "girlfriend", "sexy", "cute", "pretty", "sooo hot" or "gorgeous", or derogatory sexual terms such as "chick", "bitch", "pussy" (used to belittle boys) "boobies" or "slut". 79

79 ATRA Managing Professional Boundaries 5; Egan, Hoskinson and Shewan "Perverted Justice" 6; Kinzel Groomers 49, 145-146; Lorenzo-Dus and Kinzel 2019 Journal of Corpora and Discourse Studies 29; Morgan 2016 https://www.headteacher-update.com/best-practice-article/safeguarding-maintaining-professional-boundaries/147893/; Ncakeni arbitration paras 17, 63, 104; Satani and Western Cape Department of Education PSES232-13.14WC (7 June 2017) (hereafter Satani arbitration) para 36; Shakeshaft and Cohan In Loco Parentis 6, 9-10; Tanner and Brake 2013 http://kbsolutions.com/Grooming.pdf 13; Victorian Institute of Teaching and Dore Case 060 (15 April 2008) paras 4-5.

In SADTU obo Jacobs and Western Cape Education Department 80

80 SADTU obo Jacobs and Western Cape Department of Education PSES651-15/16WC (29 July 2016) paras 13, 18, 24.

the educator used pet names such as "girlfriend" and "sweetie pie" when communicating with the learner, and in Gauteng Department of Education and S Rasekhula 81

81 Rasekhula arbitration para 6.

"my size" and "Motho waka" (my girlfriend). The educator in Limpopo Department of Education and Mathekga 82

82 Mathekga arbitration paras 7-8.

saved his phone number on the learner's phone under "bae" meaning "girlfriend" and used terms of endearment such as "babe" when addressing the learner. The WhatsApp communication in the SADTU obo

July arbitration 83

83 SADTU obo July arbitration para 37.

included I Love You and kissing emoticons and comments such as "Mhhh….can I join plz?" (In response to the learner's reply that she was “Lib” – lying in bed), "Mwaaaa", "Nakanjani…and can't wait to hold u in mu arms looking at yr eyes and kissing you", illustrates how the educator violated the communication boundary.

As Tanner and Brake 84

84 Tanner and Brake 2013 http://kbsolutions.com/Grooming.pdf 2.

argue, groomers tend to start with seemingly innocent behaviour. Sexualised language, for example, can start with innocent references to a colour and move on to the potential victim's clothes, 85

85 Bennett and O'Donohue 2014 JCSA 967.

before becoming sexualised. The groomer may ask what the child's favourite colour is and then use that colour in conversations on a regular basis and increasingly link it to the adult world and sex. For instance, if a girl likes pink the groomer will link it to being feminine, suggesting the girl is a woman. Tanner and Blake 86

86 Tanner and Brake 2013 http://kbsolutions.com/Grooming.pdf 11.

identify engaging the child as if he or she were an adult as a recognised grooming technique. The groomer will then gradually use the colour in a more personalised manner, such as asking if the child has any pink pyjamas, bras or panties, whether she has her pink clothing on, and indicating he wants to take the pyjamas off or see her in her pink bra or panty, which is followed by a request for a selfie in the said clothing. 87

87 Kinzel Groomers 162, 271.

Gradual grooming through communication is evident in the Davids arbitration case, where the educator persuaded the learner to send him photos and Tik-Tok videos demonstrating the progression from complete refusal to the learner wearing a two-piece swimming suit, to her exposing her underbelly, and finally to her exposing her breasts. 88

88 Davids arbitration paras 31, 37, 38, 39, 43.

Elliot 89

89 Elliott 2017 TVA 85.

pinpoints exposing the child to pornography, sending or requesting sexual images and encouraging the child to engage in fantasy re-enactment as common grooming tactics. According to Badenhorst, 90

90 Badenhorst Grooming Process in Child Pornography 18.

groomers will utilise child pornography to persuade children that posing for nude images is appropriate, explaining that such photos exist in books and that anything undesirable would not be published. They also use peer pressure to desensitise children by presenting images of other children and insinuating that those children are more beautiful, courageous and popular, and that by following in their footsteps the child can become like those children. 91

91 Ost 2004 JSWFL 154.

Sexualised communication is sometimes made part of a "game", such as

mutual masturbation or the flashing of breasts or sexual organs, 92

92 Webster et al 2012 https://www.academia.edu/23987615/European_Online_ Grooming_Project_Final_Report 56; K v S [2003] JOL 10720 (SCA).

thus misrepresenting accepted moral values and creating the illusion that what is requested is socially acceptable. 93

93 Gámez-Guadix et al 2018 Journal of Adolescence 12; Sigro 1982, cited in Bennett and O'Donohue 2014 JCSA 960.

Phrases such as "everyone does it" and "others enjoy it" are commonly used to normalise sex to the child. 94

94 Tanner and Brake 2013 http://kbsolutions.com/Grooming.pdf 2.

One of the survivors of the Horace Mann Bronx School ordeal, explains how the educator went about normalising sex for him by telling him that "There's a tradition of the disciples of Plato sleeping with him. I think we should sleep together." 95

95 Cotliar People Magazine 67.

Kinzel, 96

96 Kinzel Groomers 170, 175, 190, 198, 273, 285.

who conducted a study on the language used by online child sexual groomers, indicates that groomers use language to desensitise by using child-like descriptions of sex organs in the beginning but then progress to more vulgar sexualised words. In Chetty v S 97

97 Chetty v S (AR 377/2014) [2015] ZAKZPHC 41 (21 August 2015) (hereafter Chetty case) paras 2, 19.

and S v RC 98

98 S v RC 2016 1 SACR 34 (KZP) paras 17-19.

the educators used grooming discourse with sexual content (talking about internet pornography, oral sex, describing sexual acts) to groom the child, and in both instances the court held that it was indicative of the intent to diminish the child's resistance to sexual activity.

A common grooming tactic is making sexually suggestive or obscene jokes, gestures, remarks and innuendos. 99

99 Bennett and O'Donohue 2014 JCSA 969; Morgan 2016 https://www.headteacher-update.com/best-practice-article/safeguarding-maintaining-professional-boundaries/147893/; Shakeshaft and Cohan In Loco Parentis 9-10; Van den Heever and Northern Cape Department of Education ELRC716-19/20NC (31 July 2022) (hereafter Van den Heever arbitration) para 23; Webster et al 2012 https://www.academia.edu/23987615/European_Online_Grooming_Project_Final_Report 56.

One of the tactics educator groomers use is to either ask questions about the competency of or make jokes about the victim’s current sexual partner’s performance. Shakeshaft and Cohan 100

100 Shakeshaft and Cohan In Loco Parentis 19.

refer to questions such as "What's the matter? Isn't your boyfriend giving you enough? Can't he get it up?"

As part of his grooming tactics, the educator in Limpopo Department of Education and Mathekga 101

101 Mathekga arbitration para 26.

exploited the learner's need to get her report, to solicit sex from her. Demonstrating the sex act, he told her, "If you and me can do like this, then I will give you your report." The Deputy Chief Education

Specialist, Ms Labuschagne, commented during the arbitration hearing SADTU obo Ramphal V and Gauteng Department of Education 102

102 SADTU obo Ramphal and the Gauteng Department of Education PSES442–17/18GP (2 July 2019) paras 4, 2, 4.8, 4.11.

that her investigation brought to the fore that the educator had groomed the learners inter alia by using sexual innuendo to test boundaries. In this case, the learner described how when she was eating a lollipop, the educator asked the boy next to her whether she was sucking it nicely and then commented that he wished it was his dick. The learner reported that the educator regularly referred to his big dick. Also, in Ncakeni arbitration 103

103 Ncakeni arbitration para 20.

the educator tested the boundaries with sexual innuendo when he told the learner "Seeing that you are cleaning, I am on my way so you can clean me up too." Another educator was dismissed for sexualised communication such as telling the learner "that he desired her lips because they looked like her vagina." 104

104 Mokotjo and Free State Department of Education ELRC18-21/22FS (22 September 2021) (hereafter Mokotjo arbitration) para 18.

The educator in Gauteng Department of Education and Rasekhula 105

105 Rasekhula arbitration para 8.

sent the learner text messages with a photo of his private parts, other explicit sexual photos and the sex positions he indicated they should try.

What is interesting is the use of "want", "wanna" or expressed wishes in groomers' communication. 106

106 Kinzel Groomers 170, 175, 190, 198, 285; Lorenzo-Dus and Kinzel 2019 Journal of Corpora and Discourse Studies 29.

For example, in the Davids arbitration 107

107 Davids arbitration paras 40 and 41. Also see Waterson and Gauteng Department of Education PSES345-12/13 (19 November 2013) (hereafter Waterson arbitration) para 3.3.2.

the educator responded every time after requesting and receiving a TikTok video with "I wanna see more than that" and "But I wanna see more of what youre [sic] hiding." Also in the SADTU obo July arbitration 108

108 SADTU obo July arbitration para 37.

the educator expressed his intentions by stating, "I wanted to kiss you then yaz". The educator in Limpopo Department of Education and Mathekga 109

109 Mathekga arbitration paras 14, 79.

coaxed the learner to wash as he wished her to do, stating "Please take a bath and bath it". He also informed the learner "I want three rounds from you", "I want a woman on top tomorrow". Lornzo-Dus and Kinzel identify a similar coaching instruction in their analysis of chat logs where after telling the girl to go and shower and wash her private parts the groomer stated "Daddy wants it nice and smooth".

Like all other manipulators, groomers can also use sarcastic, negative, belittling or vulgar remarks about a learner's appearance, sexual orientation or gender to break down the victim so that he or she can swoop in as a

saviour. 110

110 Morgan 2016 https://www.headteacher-update.com/best-practice-article/safeguarding-maintaining-professional-boundaries/147893/; Shakeshaft and Cohan In Loco Parentis 9-10.

Christopher 111

111 Christopher "Specific Concerns for Teachers, School Counselors, and Administrators" 30.

mentions that educators who want to groom use sarcastic comments to equalise the relationship and create an unprofessional environment. This grooming tactic relies on emotional coercion. 112

112 Bennett and O'Donohue 2014 JCSA 966.

4.3 Professional task and role boundaries

Sexual grooming has a prominent relationship dimension and as already indicated professional boundaries created by professionals' defined tasks and roles shape professional relationships. 113

113 McElvaney 2019 JCSA 608-609, 621-623.

Australia ACT Ombudsman Practice Guide No 2 and the Procedure: Protection of Children (Victorian Legislative Requirements) 114

114 Australia ACT Ombudsman 2018 https://www.ombudsman.act.gov.au/__data/ assets/pdf_file/0009/81000/No.-2-Identifying-Reportable-Conduct.pdf 8-9.

identifies as constituting boundary violations, extending a relationship with a child beyond what would be expected or normal for the caregiving role, being overly personal or intimate, and singling out or privileging a specific child(ren). ATRA 115

115 ATRA Managing Professional Boundaries 3.

mentions that sometimes it is not a case of extending a relationship but of creating a dual relationship where the educator-learner roles are blurred and fluent. The educator takes on the role of caregiver, counsellor, friend, peer, confidant, substitute parent and boy- or girlfriend, and uses this role to make the learner emotionally dependent on him or her. 116

116 ATRA Managing Professional Boundaries 4; McElvaney 2019 JCSA 609.

It is not only the groomer that takes on a different role, but the groomer also creates a dual role for the victim. Terms of endearment, pet names and references to the learner as his or her boy- or girlfriend (see section 4.2 above) are examples of the groomer’s allocating a dual role to the learner. Educator sexual predators are in a unique position where they can exploit the professional, authoritative relationship they have with their learners, who are vulnerable in these relationships. 117

117 Erooga, Allnock and Telford Towards Safer Organisations II 23.

Robins 118

118 Robins 2000 https://wayback.archive-it.org/16312/20210402200200/http:// www.attorneygeneral.jus.gov.on.ca/english/about/pubs/robins/ch3.php.

warned

A child's desire to comply with the requests of an adult he or she trusts and by whom he or she wishes to be accepted is another inhibitor of disclosure. The genuine affection a child may have for the teacher, especially one who promotes the ‘special relationship’ and who has spent a great deal of time in the grooming phase, should not be underestimated.

The relationship is experienced as "unique, secretive, special, exclusive" to such an extent that the child victim would not like to lose it. 119

119 Gámez-Guadix et al 2018 Journal of Adolescence 12.

Because groomers adopt different roles usually linked to some or other need that the learner has, McElvaney 120

120 McElvaney 2019 JCSA 615.

refers to the bonding between the groomer and the child as traumatic bonding. Even if the learner does not want the abuse-part of the relationship, he or she will not want to lose the part that makes his or her life easier.

Most groomers, including educators who groom, intentionally blur the lines between the grooming behaviour and their professional tasks and roles. For example, in Chetty v S 121

121 Chetty case para 19.

the educator alleged that the learner enquired about sex terms and that is why he, as her educator, explained various sex terms to her in detail. The court rejected his contention indicating that it was not the duty of a male educator to explain life issues to a 13-year-old girl and he could neither claim to have been tasked nor to be qualified to do so. In Limpopo Department of Education and Mathekga 122

122 Mathekga arbitration para 7, 73.

the educator saved his number on the learner's phone under the guise that she would need his number so that she could send him a previous report card, which he indicated he needed in order to be able to help her. During his arbitration hearing the educator in Waterson and Gauteng Department of Education 123

123 Waterson arbitration para 3.

argued that his request for the learner's phone number was related to his plan to arrange to take her (and other learners) for a lunch to motivate them.

A favourite ploy of educators who groom is to misconstrue their role and tasks in relation to their in loco parentis status. 124

124 In loco parentis is a Common Law principle which literally translates to "in the place of the parent". See Coetzee 2015 PELJ 2125-2127.

Arbitrator Hawyes commented that the educator's insistence in Gauteng Department of Higher Education and Mlangeni 125

125 Gauteng Department of Higher Education and Mlangeni ELRC52-23/24GP (9 July 2023) paras 48-49.

on being called "Daddy" was probably a grooming tactic with the goal of misconstruing educator authority under in loco parentis as being like parental authority. The misrepresentation of the in loco parentis role is also evident from the explanation of the educator in the Diholo arbitration 126

126 Diholo arbitration para 26.

that his actions were "fatherly". He defended his actions by arguing that he treated the learner in the same manner that he would his own daughter.

The misuse of educators' in loco parentis position is also evident from a case heard by the Victorian Institute of Teaching where the educator faced

several allegations relating to failure to uphold professional standards. He had inter alia made suggestive remarks, inappropriately touched learners, hugged learners, had inappropriate personal conversations with them, arranged "sleep overs" for female learners on school grounds where he was the sole chaperone, and had provided them with alcohol. The educator argued that his in loco parentis status obliged him to adopt the role of a parent and gave him an automatic right to engage with learners in a "fatherly" way, including seeing and socialising with learners outside of normal school hours to support them. 127

127 Victorian Institute of Teaching and Davidson Case 005 (27 October 2004) para 14.

This case was taken on review and the Victorian Civil and Administrative Tribunal's 128

128 Davidson v Victorian Institute of Teaching (Occupational and Business Regulation) [2007] VCAT 920 (30 May 2007) para 149.

conclusions provide an eloquent summary of educators' in loco parentis status:

However, this does not mean that a teacher must literally act as a parent of a student. Indeed, he or she must not do so. The teacher must maintain a professional detachment from a student. His role cannot be that of a parent. Further, he cannot be the "best friend" of adolescent girls (or boys, for that matter).

Equating educator-learner relationships with parent-child relationships to explain why educators may kiss and hug learners and tell them they love them negates educators' professionalism.

Another tactic regularly used by groomers is to act as the "cool educator" or friend that gives learners alcohol, cigarettes and drugs and shows them pornography and X-rated films. 129

129 CEOP Out of Mind, Out of Sight 58; Elliott 2017 TVA 91; Wolf, Linn and Pruitt 2018 Journal of Sexual Aggression 222.

As is discussed later, these actions are not only intended to break down learners' resistance but also to obtain leverage to be used to prevent disclosure.

4.4 Professional boundaries protecting learners against physical abuse

The ultimate violation of the role boundary is engaging in sexual relationships with learners. 130

130 ATRA Managing Professional Boundaries 5; Canadian Centre for Child Protection Child Sexual Abuse by K-12 School Personnel 29.

According to Weber 131

131 Weber date unknown https://diospringfield.org/wp-content/uploads/YPParent-Resoucre-1.pdf 3.

the initiation of physical contact will start with non-sexual touching and then progress to "accidental" sexual touching and culminate in intentional sexual touching. Conte, Wolf and Smith 132

132 Conte, Wolf and Smith 1989 Child Abuse and Neglect 300.

make the observation that the progression from non-sexual touching to intentional sexual touching is not only aimed at desensitising the child to sexual touching but also at creating a sense of complicity.

Various violations of physical boundaries came to the fore in Shakeshaft and Cohan's 133

133 Shakeshaft and Cohan In Loco Parentis 20, 28.

study, where they interviewed 225 superintendents and analysed 10 case studies, though their study did not focus on sexual grooming as such. These violations included "pinching, fondling, laying hands on students, tickling, placing hands on genital area, holding children upside down, touching breasts, caressing, feeling, and drawing circles on a girl's chest." Other physical boundary violations included kissing, having learners sit on the educator's lap, fellatio, touching breasts, buttocks or groins, hugging, massaging, wrestling, giving piggyback rides, masturbating and oral sex. 134

134 K v S [2003] JOL 10720 (SCA) para 8; Minnie The Grooming Process and the Defence of Consent 52; Winters, Jeglic and Kaylor 2020 JCSA 862; Wurtele 2012 Children and Youth Services Review 2450.

The educator in Le Roux v State 135

135 Le Roux case para 32.

violated the physical boundaries by putting his tongue in the learner's ear, hugging her, placing his head on her breast, kissing her in the neck and touching her inner thighs.

Transgressing physical boundaries inevitably includes the violation of the boundaries protecting learners' personal space and privacy.

4.5 Boundaries protecting learnersʹ personal space and privacy

An educator who arranges to communicate with a learner without a legitimate educational purpose by asking for a learner's number, giving a learner airtime or a cell phone, or befriending a learner on social media 136

136 See for example, Davids arbitration para 23; Mathekga arbitration para 7; Satani arbitration para 12; Mokotjo arbitration para 18; Ncakeni arbitration para 20; Rasekhula arbitration para 7; SADTU obo July arbitration para 17; Waterson arbitration para 3.4.

commits a boundary violation. Actual inappropriate communication need thus not take place for personal-professional boundaries to be violated. An educator oversteps professional boundaries when he or she creates a personal, emotional bond with one specific learner, which is indeed a grooming tactic used to make the intended victim feel special. 137

137 O'Leary, Koh and Dare Grooming and Child Sexual Abuse 8, 10; Palmer Role of Organisational Culture in Child Sexual Abuse 25.

It is a process similar to that when an adult woos or courts another adult 138

138 Howitt 1995, cited in Bennett and O'Donohue 2014 JCSA 960-961.

and includes showing favouritism, engaging with the child (in particular) by listening to him or her and being there for the child, giving the child gifts and taking the child to places outside the school milieu. 139

139 ATRA Managing Professional Boundaries 4; Tanner and Brake 2013 http://kbsolutions.com/Grooming.pdf 11.

In Queensland College of Teachers v JNS the Queensland Civil and Administrative Tribunal found that the educator had formed a personal rather than a professional relationship with the learner, as was evidenced by the educator’s showing

favouritism to the learner, socialising and exchanging gifts and personal emails with the learner, and creating intimacy with the learner by sitting alone together with the learner. 140

140 Queensland College of Teachers v JNS [2018] QCAT 228 paras 19, 29, 30, 33.

Favourite gifts to give include cheap jewellery, clothes and cell phones, topping up cell phones, webcams, cigarettes, alcohol, music CDs, cookies, food, money and even accommodation and bursaries. 141

141 CEOP Out of Mind, Out of Sight 17, 58-59; Gauteng Department of Education and Modiba PSES720-19/20GP (24 February 2020) paras 15, 19, 21; Strydom case para 8; Webster et al 2012 https://www.academia.edu/23987615/European_Online_ Grooming_Project_Final_Report 10.

Groomers like to give cell phones as gifts because by so doing they create an open line of communication between themselves and the child and enable the child to stay away from home or school (or wherever else they are supposed to be) for longer periods of time. 142

142 CEOP Out of Mind, Out of Sight 15, 27.

Educators who groom learners will further violate the personal-professional boundary when they fail to separate home- and work-life, share overly personal information or enquire about the personal life of the learner. A good example of oversharing can be found in Chetty v S, 143

143 Chetty case para 17.

where the educator shared information about his relationship with another teacher, commented on them not having had sex, but stated that he had seen her naked and had fingered her. Another typical grooming tactic is to comment on his or her unhappiness with his or her current relationship and or marriage. 144

144 Ncakeni arbitration para 21.

An inappropriate enquiry about a learner's personal life includes an enquiry on whether the learner goes out at night, has boyfriends and/or is sexually active or a virgin. 145

145 Diholo arbitration paras 8, 41; Mathekga arbitration paras 4, 23; Mokotjo arbitration para 5; Satani arbitration paras 12, 36; Van den Heever arbitration para 18.

Educators who invite learners to visit them at home violate the personal-professional boundary. 146

146 ATRA Managing Professional Boundaries 6.

The sports coach in the case of Strydom v S, 147

147 Strydom case para 3.

for example, invited the boys to his home to watch movies or for a braai. The educator in Free State Department of Education and Mofokeng 148

148 Free State Department of Education and Mofokeng ELRC276-20/21FS (27 October 2021) (hereafter Mofokeng arbitration) paras 13, 40.

took the learner to houses he owed and guesthouses.

Educators that groom violate the personal-professional boundary when creating a "collusive" secrecy. 149

149 Minnie The Grooming Process and the Defence of Consent 49; USA Department of Education Educator Sexual Misconduct 32.

According to Tanner and Blake 150

150 Tanner and Brake 2013 http://kbsolutions.com/Grooming.pdf 11.

drawing the child into the secret is a major avenue for creating a bond and a special relationship. It should be a warning sign if an educator asks a learner to keep a secret, irrespective of the type of secret. 151

151 New South Wales Ombudsman for the Protection of Children 2013 https://www.childabuseroyalcommission.gov.au/sites/default/files/OMB.0015.001.0140.pdf.

Grooming techniques used to ensure secrecy include creating a belief of complicity, obtaining leverage, using threats, using the child's longing to belong and abusing the power relationship by convincing the child that no one will believe him or her rather than the educator. 152

152 CEOP Out of Mind, Out of Sight 26, 36, 51, 60; Pollack and MacIver 2015 ABA Child Law Practice 1; USA Department of Education Educator Sexual Misconduct 33; Wolf, Linn and Pruitt 2018 Journal of Sexual Aggression 220.

Many groomers repeatedly tell the child to keep whatever happened a secret, 153

153 Mokotjo arbitration para 18; Wolf, Linn and Pruitt 2018 Journal of Sexual Aggression 219.

in which case a pattern may be discernible, as was evident in the insistent reminders in the SADTU obo July arbitration: "Delete plz after viewing", "Ok ke dear….jst hope you keep Roxy in the dark nhe", " Who's phone is this? Ok pls dnt forget to delete bbs nhe". 154

154 SADTU obo July arbitration para 37.

Some groomers use what Weber 155

155 Weber date unknown https://diospringfield.org/wp-content/uploads/YPParent-Resoucre-1.pdf 1.

refers to as "emotional seduction" by constantly reminding the learner that if the learner talks, the educator will get into trouble and lose his or her job – thus making the child responsible for his or her fate. 156

156 Mofokeng arbitration para 16; Sheldon-Lakey case para 14.

Smallbone and Wortley 157

157 Smallbone and Wortley 2001, cited in Minnie The Grooming Process and the Defence of Consent 55.

identify this as the preferred method amongst groomers of avoiding disclosure. In a study conducted by Egan, Hoskinson and Shewan 158

158 Egan, Hoskinson and Shewan "Perverted Justice" 10.

where adults pretended to be children communicating with groomers in chat rooms, phrases commonly used by the groomers included "yea but you tell anyone or something gets out i go to jail", "shut down yahoo to erase all this", "just between me and u right", "so u can keep it a secret right?"

Creating complicity plays an important role in how groomers orchestrate matters so that victims participate in their own abuse, while the groomers obtain leverage. 159

159 Courtois and Alpert "MIND F*CK" 241.

Where the secrecy is initially used to create a bond, it is later used to argue complicity. For example, complicity is created by luring

the learner into becoming sexually active, taking and sharing nude selfies, drinking alcohol, using drugs, smoking, and lying to his or her parents. The knowledge of these activities is then used as leverage and the groomer will impress it on the learner that should he or she disclose, his or her own criminal behaviour will land him or her in serious trouble. 160

160 CEOP Out of Mind, Out of Sight 24, 26.

An educator in one of the case studies described in the Shakeshaft and Cohan study 161

161 NAMBLA Bulletin 1993 cited in Shakeshaft and Cohan In Loco Parentis 28.

explained that he used oral sex to gain leverage over boy learners. As he commented

I have yet to meet a boy who disliked being blown. By giving him pleasure, you increase the chance he will keep your secret to himself in our homophobic and pedophobic culture.

The fear of the public exposure of compromising photos or videos keeps victims from exposing the abuse and ensures their continued participation. 162

162 Minnie The Grooming Process and the Defence of Consent 49.

Leverage is of course also obtained when a quid pro quo was used as part of the grooming; something that happens regularly when educators are the groomers. 163

163 Mathekga arbitration para 81; Shakeshaft and Cohan In Loco Parentis 9.

This may relate to the fact the educators that groom are specific in choosing troubled and needy children such as those that have difficult relationships with their parents, those who lack confidence, and those who are already involved in risky behaviour. Learners who have their needs fulfilled will be less likely to disclose, and the "bad" girl or boy is less believable as a witness. 164

164 Shakeshaft and Cohan In Loco Parentis 27, 29.

5 Concluding comments

Sexual grooming behaviour and professional relationship boundary violations are inextricably linked. Professional boundaries violated by grooming behaviour are in particular the boundaries that provide protection to learners against an abuse of power and trust, inappropriate communication, educators exceeding their tasks and roles, educators physically abusing learners, and educators invading learners' personal space and privacy. It is also clear that one grooming behaviour might constitute the violation of multiple boundaries at the same time because these boundaries are separate yet co-dependent.

Following a combination of Bennett and O'Donohue's suggested process, the guidelines of the New South Wales Ombudsman for the Protection of Children, and the Victoria Family and Community Development Committee, the author proposes a four-step test to first distinguish between boundary violations that can be accepted as normal and those for which there is no reasonable explanation, and second between the aforementioned and

grooming behaviour. To constitute sexual grooming behaviour there must be a pattern of intentional inappropriate behaviour aimed at urging or persuading a learner to commit a sexual act and/or decreasing or reducing any resistance or refusal on the part of the child to engage in a sexual act.

The author claims that by acting when there is evidence of a professional boundary violation, further development towards sexual grooming can be prevented. She suggests that a sanction such as compulsory training on professional behaviour and boundary violations be created for such transgressions.

Since none of the forms of serious misconduct cover sexual grooming sufficiently, the author suggests that section 17(1)(f) that seems to be intended to address the problem of educators' professional boundary violations and sexual grooming be rephrased by either specifically describing the acts that an educator may not cause a learner to do, or that the section be replaced in its totality. Thus either:

17. Serious misconduct.—(1) An educator must be dismissed if he or she is found guilty of—

(f) causing a learner to

(i) enter into a sexual relationship with him or her

(ii) possess or use an intoxicating, illegal or stupefying substance

(iii) commit theft, bribery, fraud or an act of corruption

Or section 17(1)(f) should be rephrased as

17. Serious misconduct.—(1) An educator must be dismissed if he or she is found guilty of—

(f) committing a professional boundary violation with the intention to sexually groom a learner.

Even if the above suggestions are not adopted, perhaps because it is thought that section 18(1)(dd) can be used to adequately deal with sexual grooming, the author is still of the opinion that section 17(1)(f) requires rephrasing so as to clearly illustrate the purpose for which it was inserted into the main Act. As already said, the need for this sub-section is not clear as it is not explained in the Memorandum on the Objects of the Education Laws Amendment Bill, 2000. The wording is ambiguous and makes no sense.

It is further suggested that SACE should develop Professional Boundary Guidelines for Educators similar to the Queensland College of Educators' Guidelines and that SACE should include a specific workshop on sexual grooming and professional boundaries in its training portfolio, including a topic on the difference between educators' professional relationships with

learners and parent-child relationships. Educators should understand what it means to act in loco parentis and that this status does not override their status as professionals. It should further be emphasised that professional boundary violations occur not only in instances where physical contact boundaries are transgressed.

Parents and learners need to be made aware of the possibility that educators who transgress professional boundaries may be in the process of sexually grooming learners. They must be warned to be on the lookout for patterns of unacceptable conduct and requested to report such to the principals of their children’s schools.

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Coetzee SA "Sexual Grooming of Children in Teaching as a Trust Profession in South Africa" 2023 PELJ http://dx.doi.org/10.17159/1727-3781/2023/v26i0a14192

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Conte JR, Wolf S and Smith T "What Sexual Offenders Tell Us about Prevention Strategies" 1989 Child Abuse and Neglect 293-301

Cotliar People Magazine

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Courtois and Alpert "MIND F*CK"

Courtois and Alpert "MIND F*CK The Grooming Process in 'Professional Incest'" in Schwilk C, Stevenson R and Bateman D (eds) Sexual Misconduct in the Education and Human Services Sector (IGI Global Hershey 2017) 239-261

Elliott 2017 TVA

Elliott IA "A Self-Regulation Model of Sexual Grooming" 2017 TVA 83-97

Egan, Hoskinson and Shewan "Perverted Justice"

Egan V, Hoskinson J and Shewan D "Perverted Justice: A Content Analyses of the Language Used by Offenders Detected Attempting to Solicit Children for Sex" in Clarke RM (ed) Antisocial Behavior: Causes, Correlations and Treatments (Nova Science Publishers New York 2011) 1-15

Erooga, Allnock and Telford Towards Safer Organisations II

Erooga M, Allnock D and Telford P Towards Safer Organisations II: Using the Perspectives of Convicted Sex Offenders to Inform Organisational Safeguarding of Children (NSPCC London 2012)

Gámez-Guadix et al 2018 Journal of Adolescence

Gámez-Guadix M et al "Persuasion Strategies and Sexual Solicitations and Interactions in Online Sexual Grooming of Adolescents: Modeling Direct and Indirect Pathways" 2018 Journal of Adolescence 11-18

Graham et al Teachers' Professional Boundary Transgressions

Graham A et al Teachers' Professional Boundary Transgressions: A Literature Summary (Centre for Children and Young People, Southern Cross University Lismore 2018)

Gushwa, Bernier and Robinson 2019 JCSA

Gushwa M, Bernier J and Robinson D "Advancing Child Sexual Abuse Prevention in Schools: An Exploration of the Effectiveness of the Enough! Online Training Program for K-12 Teachers" 2019 JCSA 144-159

Hook and Devereux 2018 BJPsych Advances

Hook and Devereux "Sexual Boundary Violations: Victims, Perpetrators and Risk Reduction" 2018 BJPsych Advances 374-383

Kinzel Groomers

Kinzel A Groomers: A Corpus Assisted Discourse Study of Intentions, Requests and Grooming Duration (PhD-thesis in Applied Linguistics Swansea University 2021)

Lanning and Dietz 2014 JIV

Lanning KV and Dietz P "Acquaintance Molestation and Youth-Serving Organizations" 2014 JIV 2815-2838

Lorenzo-Dus and Kinzel 2019 Journal of Corpora and Discourse Studies

Lorenzo-Dus N and Kinzel A "ʹSo is your Mom as Cute as You?ʹ: Examining Patterns of Language Use by Online Sexual Groomers" 2019 Journal of Corpora and Discourse Studies 1-30

McElvaney 2019 JCSA

McElvaney R "Grooming: A Case Study" 2019 JCSA 608-627

Minnie The Grooming Process and the Defence of Consent

Minnie D The Grooming Process and the Defence of Consent in Child Sexual Abuse Case (LLM-dissertation Nelson Mandela Metropolitan University 2008)

Munroe and Fish Hear no Evil, See no Evil

Munroe and Fish Hear no Evil, See no Evil: Understanding Failure to Identify and Report Child Sexual Abuse in Institutional Contexts (Royal Commission into Institutional Responses to Child Sexual Abuse Commonwealth of Australia Sydney 2015)

O'Leary, Koh and Dare Grooming and Child Sexual Abuse

O'Leary P, Koh E and Dare A Grooming and Child Sexual Abuse in Institutional Contexts (Royal Commission into Institutional Responses to Child Sexual Abuse Commonwealth of Australia Sydney 2017)

Ost 2004 JSWFL

Ost S "Getting to Grips with Sexual Grooming? The New Offence under the Sexual Offences Act 2003" 2004 JSWFL 147-159

Palmer Role of Organisational Culture in Child Sexual Abuse

Palmer D The Role of Organisational Culture in Child Sexual Abuse in Institutional Contexts (Royal Commission into Institutional Responses to Child Sexual Abuse Commonwealth of Australia Sydney 2016)

Patterson and Austin 2008 ASBJ

Patterson MA and Austin DF "Stop the Grooming: How can you Help Protect Children from Sexual Misconduct by School Employees?" 2008 December ASBJ 18-20

Pollack and MacIver 2015 ABA Child Law Practice

Pollack D and MacIver A "Understanding Sexual Grooming in Child Abuse Cases" 2015 ABA Child Law Practice 166-168

Queensland College of Teachers Professional Boundaries

Queensland College for Educators Professional Boundaries: A Guideline for Queensland Teachers (Queensland College of Teachers Brisbane 2019)

Shakeshaft 2013 Kappan

Shakeshaft C "Know the Warning Signs of Educator Sexual Misconduct" 2013 February Kappan 8-13

Shakeshaft and Cohan In Loco Parentis

Shakeshaft C and Cohan A In Loco Parentis: Sexual Abuse of Students in Schools. What Administrators should Know (Hofstra University Long Island 1994)

Snyman Criminal Law

Snyman C Criminal Law 6th ed (LexisNexis Durban 2014)

USA Department of Education Educator Sexual Misconduct

United States of America Department of Education Educator Sexual Misconduct: A Synthesis of Existing Literature (USA Department of Education, Office of the Under Secretary Washington DC 2004)

Winters and Jeglic 2017 Deviant Behavior

Winters GM and Jeglic EL "Stages of Sexual Grooming: Recognizing Potentially Predatory Behaviors of Child Molesters" 2017 Deviant Behavior 724-733

Winters, Jeglic and Kaylor 2020 JCSA

Winters GM, Jeglic EL and Kaylor LE "Validation of the Sexual Grooming Model of Child Sexual Abusers" 2020 JCSA 855-875

Wojciechowska "Managing Personal and Professional Boundaries"

Wojciechowska E "Managing Personal and Professional Boundaries" in Hartley P and Kennard D (ed) Staff Support Groups in the Helping Professions: Principles, Practice and Pitfalls (Routledge London 2009) 147-160

Wolf, Linn and Pruitt 2018 Journal of Sexual Aggression

Wolf MR, Linn BK and Pruitt DK "Grooming Child Victims into Sexual Abuse: A Psychometric Analysis of Survivors' Experiences" 2018 Journal of Sexual Aggression 215-224

Wurtele 2012 Children and Youth Services Review

Wurtele SK "Preventing the Sexual Exploitation of Minors in Youth-Serving Organizations" 2012 Children and Youth Services Review 2442-2453

Case law

Chetty v S (AR 377/2014) [2015] ZAKZPHC 41 (21 August 2015)

Davids and Western Cape Department of Education ELRC767-21/22WC (6 May 2022)

Davidson v Victorian Institute of Teaching (Occupational and Business Regulation) [2007] VCAT 920 (30 May 2007)

Diholo and Gauteng Department of Education PSES933-18/19GP (9 May 2019)

Free State Department of Education and Mofokeng ELRC276-20/21FS (27 October 2021)

Gauteng Department of Education and Rasekhula ELRC990-21/22GP (25 April 2022)

Gauteng Department of Education and Modiba PSES720-19/20GP (24 February 2020)

Gauteng Department of Higher Education and Mlangeni ELRC52-23/24GP (9 July 2023)

K v S [2003] JOL 10720 (SCA)

Le Roux v State (A & R 25/2018) [2021] ZAECGHC 57 (13 May 2021)

Limpopo Department of Education and Mathekga ELRC200-21/22LP (12 November 2021)

Mokotjo and Free State Department of Education ELRC18-21/22FS (22 September 2021)

Mugridge v S (657/12) [2013] ZASCA 43 (28 March 2013)

Ncakeni and Gauteng Department of Education PSES58-13/14GP (23 April 2014)

Queensland College of Teachers v JNS [2018] QCAT 228

Satani and Western Cape Department of Education PSES232-13/14WC (7 June 2017)

SADTU obo Jacobs and Western Cape Department of Education PSES651-15/16WC (29 July 2016)

SADTU obo July and Northern Cape Department of Education PSES610-18/19NC (14 May 2019)

SADTU obo Ramphal and the Gauteng Department of Education PSES442–17/18GP (2 July 2019)

Sheldon-Lakey v S (CA 42/2014) [2016] ZANWHC 33 (14 July 2016)

Sogoni and Western Cape Education Department PSES407-19/20WC (17 February 2020)

S v RC 2016 1 SACR 34 (KZP)

Strydom v S (A463/2014) [2015] ZAGPPHC 272 (5 February 2015)

Van den Heever and Northern Cape Department of Education ELRC716-19/20NC (31 July 2022)

Victorian Institute of Teaching and Davidson Case 005 (27 October 2004)

Victorian Institute of Teaching and Dore Case 060 (15 April 2008)

Waterson and Gauteng Department of Education PSES345-12/13 (19 November 2013)

Legislation

Electronic Communications Act 36 of 2005

Employment of Educators Act 76 of 1998

Liquor Act 59 of 2003

South African Council for Educators Act 31 of 2000

South African Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007

Tobacco Products Control Act 83 of 1993

Government publications

Education Laws Amendment Bill [B48-2000]

Internet sources

ATRA date unknown https://www.atra.edu.au/

Australasian Teacher Regulatory Authorities date unknown Who We Are https://www.atra.edu.au/ accessed 21 April 2024

Australia ACT Ombudsman 2018 https://www.ombudsman.act.gov.au/__ data/assets/pdf_file/0009/81000/No.-2-Identifying-Reportable-Conduct.pdf

Australia ACT Ombudsman 2018 ACT Ombudsman Practice Guide No 2 https://www.ombudsman.act.gov.au/__data/assets/pdf_file/0009/81000/No.-2-Identifying-Reportable-Conduct.pdf accessed 26 August 2023

Morgan 2016 https://www.headteacher-update.com/best-practice-article/safeguarding-maintaining-professional-boundaries/147893/

Morgan S 2016 Safeguarding: Maintaining Professional Boundaries Headteacher Update 11 November 2016 https://www.headteacher-update.com/best-practice-article/safeguarding-maintaining-professional-boundaries/147893/ accessed 26 August 2023

New South Wales Ombudsman for the Protection of Children 2013 https://www.childabuseroyalcommission.gov.au/sites/default/files/OMB.0015.001.0140.pdf

New South Wales Ombudsman for the Protection of Children 2013 Defining Reportable Conduct https://www.childabuseroyalcommission.gov.au/sites/ default/files/OMB.0015.001.0140.pdf accessed 26 August 2023

Robins 2000 https://wayback.archive-it.org/16312/20210402200200/http:// www.attorneygeneral.jus.gov.on.ca/english/about/pubs/robins/ch3.php

Robins SL 2000 Protecting our Students: A Review to Identify and Prevent Sexual Misconduct in Ontario Schools (Ontario Ministry of the Attorney General) https://wayback.archive-it.org/16312/20210402200200/http://

www.attorneygeneral.jus.gov.on.ca/english/about/pubs/robins/ch3.php accessed 22 April 2024

SACE date unknown https://www.sace.org.za/assets/documents/ uploads/sace_31646-2023-01-17-0000_SACE_Booklet_Yellow_BOOK_OF_ETHICS__proof_5.1.pdf

South African Council for Educators date unknown Code of Professional Ethics (as updated) https://www.sace.org.za/assets/documents/ uploads/sace_31646-2023-01-17-0000_SACE_Booklet_Yellow_ BOOK_OF_ETHICS__proof_5.1.pdf accessed 28 August 2023

SACE date unknown https://www.sace.org.za/assets/documents/ uploads/sace_31646-2023-01-17-0000_SACE_Booklet_Yellow_BOOK_OF_ETHICS__proof_5.1.pdf

South African Council for Educators date unknown Disciplinary Procedures https://www.sace.org.za/assets/documents/uploads/sace_31646-2023-01-17-0000_SACE_Booklet_Yellow_BOOK_OF_ETHICS__proof_5.1.pdf accessed 26 August 2023

Tanner and Brake 2013 http://kbsolutions.com/Grooming.pdf

Tanner J and Brake S 2013 Exploring Sex Offender Grooming http://www.kbsolutions.com/Grooming.pdf accessed 26 August 2023

Victoria Family and Community Development Committee 2013 https://apo.org.au/node/36348

Victoria Family and Community Development Committee 2013 Betrayal of Trust: Inquiry into the Handling of Child Abuse by Religious and Other Non-Government Organisations https://apo.org.au/node/36348 accessed 25 August 2023

Weber date unknown https://diospringfield.org/wp-content/uploads/ YPParent-Resoucre-1.pdf

Weber GM date unknown Boundary Violations, "Grooming" and Child Sexual Abuse (Springfield Diocese Office of Counseling, Prevention and Victim Services) https://diospringfield.org/wp-content/uploads/YPParent-Resoucre-1.pdf accessed 26 August 2023

Webster et al 2012 https://www.academia.edu/23987615/European_ Online_Grooming_Project_Final_Report

Webster S et al (eds) 2012 European Online Grooming Project Final Report https://www.academia.edu/23987615/European_Online_Grooming_Project_Final_Report accessed 21 April 2024

List of Abbreviations

ATRA	Australasian Teacher Regulatory
ASBJ	American School Board Journal
CARSA	Child Abuse Research South Africa
CEOP	Child Exploitation and Online Protection Centre
ELRC	Education Labour Relations Council
JCSA	Journal of Child Sexual Abuse
JIV	Journal of Interpersonal Violence
JSWFL	Journal of Social Welfare and Family Law
PELJ	Potchefstroom Electronic Law Journal
SACE	South African Council for Educators
SADTU	South African Democratic Teachers Union
TVA	Trauma, Violence & Abuse
USA	United States of America