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18 December 2017 09:03 (South Africa)
South Africa

Sexual assault ruling scrapping 20-year charges limit ‘enormous’

  • Greg Nicolson
    greg nicolson BW
    Greg Nicolson

    Nicolson left his hometown of Melbourne to move to Johannesburg, beset by fears Australia was going to the dogs. With a camera and a Mac in his bag, he ventures out to cover power and politics, the lives of those included and those excluded. He can be found at the tavern, searching for a good story or drowning a bad one.

  • South Africa
Photo: Sidney Frankel

Monday’s court ruling allowing sexual assault victims to pursue criminal charges at any time, rather than within 20 years of the offence, was celebrated. It’s one of many steps needed to ensure sexual offences victims can access justice. By GREG NICOLSON.

It’s a pity Sidney Frankel died, said attorney Ian Levitt on Monday. “It’s a really, really important case. There would have been a weight off their shoulders had they been able to stare directly into Frankel’s eyes.”

The South Gauteng High Court on Monday said the law limiting sexual offence cases to a statute of limitation of 20 years must be scrapped and both children and adults must be allowed to lay charges at any time after offences occur. The case was brought by eight alleged victims who wanted to prosecute billionaire stockbroker Sidney Frankel for sexual offences committed over 20 years ago. Levitt, attorney for the eight, said the victims wanted to see their alleged abuser in the dock.

It’s enormous. This judgment today is enormous,” said Miranda Jordan-Friedmann, director of Women and Men Against Child Abuse, which joined the case. “I see this as a huge victory for children’s rights.” Shaheda Omar, clinical director for the Teddy Bear Foundation, also part of the case, said, “We salute these applicants for their bravery and courage in coming forward because the message they’re giving to other victims is there is merit in coming forward, there are consequences.”

The eight applicants – Nicole Levenstein, Paul Diamond, George Rosenberg, Katherine Rosenberg, Daniela McNally, Lisa Wegner, Shane Rothquel and Marinda Smith – accused Frankel of sexually abusing them when they were children. Frankel was a prominent philanthropist with ties to the most influential South Africans and the eight claimed he touched, fondled and molested them. The NPA said they couldn’t prosecute the cases because they were over 20 years old. Frankel still has staunch supporters to defend him. He died in April and the eight are still pursuing civil claims for damages.

The judgment is an acknowledgment that sexual offences can have the same effect on victims as rape cases. The applicants challenged Section 18 of the Criminal Procedures Act, which imposes a 20-year statute of limitations on non-penetrative or digitally-penetrative offences. Criminal charges for rape can be pursued at any time. The applicants argued there was no evidence showing the consequences of rape were more severe than sexual offences and Sheena Swemmer, an attorney from the Centre for Applied Legal Studies, said the court ruling was “aligning the criminal law with the way psychology works”.

The long-term impact, the long-term betrayal and consequences are huge,” said Jordan-Friedmann. As sexual offences are often committed by perpetrators known to the victim, there are long-term effects of speaking out that discourage reporting the crime. She noted children being scared of breaking up families, students worried of the disruption to their futures, and young adults starting a new life or family afraid to disclose what happened. “What we’re seeing is a lot of people in their 40s having made peace in that they’re prepared now to tell people what happened.”

We’re very pleased because this judgment acknowledges the fact that it has devastating effects on victims on sexual assault equally as it does on victims of sexual violence,” said Omar. “They don’t suffer less.” The court was provided evidence that sexual assault victims don’t suffer any less consequences than rape victims. Acting Judge Claire Hartford agreed the 20-year cut off on sexual assault cases denied victims their rights to justice, dignity and equality and was unconstitutional.

Victims of sexual assault offences dating back more than 20 years might now feel encouraged to report their cases. The judgment must first go through the Constitutional Court for approval – the court could make minor changes – and then the National Assembly has 18 months to change the Criminal Procedures Act. “Once this amendment takes effect I think many people will be able to speak out about it and will be able to do so,” said Marike Keller from Sonke Gender Justice.

Swemmer said the law had never been challenged before because there was never an attempt in the past. While laws around private prosecution and civil law have been challenged and changed, this was the case was the first on the issue, she said, with so many matters of historical sexual abuse coming forward. There’d been a lack of anyone coming forward and challenging the law. “Which is how abuse and speaking about abuse manifests.”

The landmark ruling could also send a message to sexual abusers. “If you have kept quiet and you know that children have been molested and children’s lives have been forever changed and you think the truth will never come out, well it will,” said Jordan-Friedmann. She said sexual offenders have abused children thinking they would get away with it, but now they can be held accountable.

The ruling means both children and adults have no time limitations of when they must lay criminal charges for sexual abuse cases and is one step to improving access to justice, but the journey remains long. “There’s still a long way to go for survivors to access to justice,” said Keller. Swemmer said the system is struggling to prosecute cases from a year ago, let alone over 20 years ago.

The criminal justice system has widely been accused of failing both sexual offence and rape survivors, with challenges in reporting crimes, police investigations, survivor support, and prosecutorial and judiciary sensitivity. Keller said while Monday’s judgment renewed her faith in the courts; there are problems every step of the way in accessing justice. Swemmer said it could be more traumatic for victims to come forward after the ruling only to be failed by the system. She called for further training for prosecutors and judges on confronting gender and sexual abuse stereotypes.

Omar said government must now work over the next 18 months to ensure it is ready for an increase in reported crimes. She noted the 58 sexual offences courts across the country and asked whether they will have the capacity to deal with more cases. “We’re excited but now the work has to be done in the next 18 months.”

Police Minister Fakile Mbalula is expected soon to outline a policy to reduce the barriers to reporting sexual offences, attempting to ensure police take all reported cases seriously and sensitively and victims are placed at the centre of such cases.

The system still doesn’t work for many victims, but the eight on Monday changed the law and achieved one more step towards assisting many. DM

Read more:

  • Sidney Frankel: The true legacy of an alleged paedophile philanthropist, in Daily Maverick

Photo: Sidney Frankel

  • Greg Nicolson
    greg nicolson BW
    Greg Nicolson

    Nicolson left his hometown of Melbourne to move to Johannesburg, beset by fears Australia was going to the dogs. With a camera and a Mac in his bag, he ventures out to cover power and politics, the lives of those included and those excluded. He can be found at the tavern, searching for a good story or drowning a bad one.

  • South Africa

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