ConCourt ruling offers sexual abuse survivors opportunity of ‘getting justice’

The group and lawyers from the University of the Witwatersrand's Centre for Applied Legal Studies argued that the 20-year time limit on sexual abuse prosecutions is unconstitutional. (Oupa Nkosi/M&G)

The group and lawyers from the University of the Witwatersrand's Centre for Applied Legal Studies argued that the 20-year time limit on sexual abuse prosecutions is unconstitutional. (Oupa Nkosi/M&G)

A ruling by the Constitutional Court on Thursday has lifted the 20-year time limit survivors of sexual assault had to report it.

Section 18 of the Criminal Procedure Act (CPA) differentiates between rape and other forms of sexual assault and holds that, while rape may be prosecuted at any time, sexual abuse crimes are limited to 20 years. This meant that victims had to lay charges against their abusers within this period.

In its ruling, the court found this section of the Act to be “Constitutionally invalid”.

The ruling follows a Johannesburg High Court case brought by eight men and women last year. Known as the “Frankel Eight”, Nicole Levenstein, Paul Diamond, George Rosenberg, Katherine Rosenberg, Daniela McNally, Lisa Wegner, Shane Rothquel and Marinda Smith filed civil lawsuits in 2013 against billionaire businessperson and socialite Sidney Frankel. The group accused Frankel of sexually abusing them when they were children.

The group and lawyers from the University of the Witwatersrand’s Centre for Applied Legal Studies (Cals) argued that the 20-year time limit on sexual abuse prosecutions is unconstitutional. Court papers filed by Cals argue there is no difference in the harm experienced by survivors of rape and sexual abuse victims.

A 2015 study published in the journal Child Abuse Review found that delays in disclosing child sexual abuse are common, some for even up to 49 years. The study also revealed there was no consistent evidence of a relationship between the severity of abuse and the moment a victim discloses.

“Significant numbers of children do not disclose experiences of sexual abuse and ... significant proportions of adults never disclosed such abuse.”

Frankel died in April last year. Cals and the Frankel Eight had chosen to pursue the case because it could assist other survivors of sexual abuse who have not seen justice.

In delivering its judgment, the Court stated: “Although rape is the most reprehensible form of sexual assault, other forms of sexual abuse also constitute a humiliating, degrading and brutal invasion of the dignity and the person of the survivor. Sexual abuse in all forms, not only rape, infringes the survivor’s right to bodily and psychological integrity.”

Welcoming the court’s ruling, Rees Mann, founder of South African Male Survivors of Sexual Abuse, said: “We are extremely happy with this ruling. This empowers male and female survivors with the opportunity of getting justice. But this is not only about getting the justice they deserve but also about putting the power in their hands to make the choice to lay charges or not. Prior to this, the choice was removed from them. This is a big relief. ”

Carl Collison

Carl Collison

Carl Collison is the Other Foundation’s Rainbow Fellow at the Mail & Guardian. He has contributed to a range of local and international publications, covering social justice issues as well as art and is committed to defending and advancing the human rights of the LGBTI community in Southern Africa. Read more from Carl Collison

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