A sports teacher at Bishops Diocesan School in Cape Town has resigned following allegations of sexual misconduct with members of the sports team she coached. Mrs Fiona Viotti, 30, is alleged to have had sexual intercourse with at least five pupils who were part of the school’s water polo team between 2013 and 2019. In addition Mrs Viotti shared explicit photos and videos with her pupils, some of which were circulated both in the school and on PornHub. Mrs Viotti resigned from her position in October 2019 once the allegations were made public. An internal investigation carried out by the school’s lawyers concluded that the Bishops Code of Professional Conduct for Teaching Staff and South Africa’s Council of Educators’ Code of Professional Ethics had been breached, but were satisfied the school had the necessary policies and procedures in place to address such misconduct and had taken appropriate steps. As Ms Viotti had already left her position by the time the investigation was concluded, no disciplinary actions were taken against her, but it is unlikely she will teach again. It is understood that the pupils are considering civil actions against Mrs Viotti and the school.
It is understood that no criminal charges are anticipated as all pupils were aged 18 at the relevant time.
Comparison of the law in respect of Sexual Offences in the UK and South Africa:
A Child for the purposes of Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 is defined a person under the age of 18 years, despite the age of consent being 16 years of age in South Africa. Section 16(1) of the above Act provides that “a person (‘A’) who commits an act of sexual violence with a child (‘B’) is, despite the consent of B to the commission of such an act, guilty of the offence of having committed an act of consensual sexual violation with a child”. As such any consensual sexual act between an adult (over the age of 18 years) and a child aged 16 – 17 years will be deemed statutory sexual assault / statutory rape.
By comparison, in the UK the Sexual Offences Act 2007 defines a child an individual under the age of 16. The Sexual Offences Act 2007 however includes provisions in respect of individuals in a position of trust who engage with sexual activity with an individual aged below 18 years of age. Pursuant to section 16 of the Sexual Offences Act 2007 “A person aged 18 or over (‘A’) commits and offence if:-
- He intentionally touches another person (B),
- The touching is sexual,
- A is in a position of trust in relation to B,
- A knows or could reasonably expected to know of the circumstances by virtue of which is in a position of trust in relation to B and
- (i) B is under 18 and A does not reasonably believe B is 18 or over”.
In addition section 15 of the Sexual Offences Act makes provisions in respect of sexual communication with a child. Pursuant to this section a “person aged 18 or over (‘A’) commits an offence if:-
- For the purpose of obtaining sexual gratification, A intentionally communicates with another person (B);
- The communication is sexual or is intended to encourage B to make (whether to A or to another) a communication that is sexual;
- B is under 16 and A does not reasonably believe that B is 16 or over.”
There are no similar provisions within the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 in respect of sexual communication with a child.
As addressed above, it appears that Mrs Viotti deliberately approached pupils aged 18 and no criminal offences were committed.
Written by Louise Roden, BLM