Women24 spoke with Sanja Bornman, head of the Gender Equality Programme at Lawyers for Human Rights (LHR), about what this ruling means and why it is important.
Until Monday this week there was a legal time limit on when you could report, and the National Prosecuting Authority (NPA) could institute a prosecution of, a sexual offence other than rape.
That time limit was 20 years. But, that has all changed. A ruling in the Johannesburg High Court has declared Section 18 of the Criminal Procedure Act unconstitutional, and invalid.
The case that changed all of this was started by eight men and women who filed a civil lawsuit in 2013 against businessperson and socialite Sidney Frankel. The group accused Frankel of sexually abusing them as children. Frankel died in April 2017.
There were three friends of the Court (Lawyers for Human Rights, Women’s Legal Centre and the Teddy Bear Clinic) in this case and the applicants were represented by private attorneys.
Sanja Bornman, head of the Gender Equality Programme at Lawyers for Human Rights (LHR) explains.
Why did LHR feel this was an important case to get involved with?
“LHR decided to intervene in this case as a friend of the Court, because we believed the distinction between rape and other sexual offences to be arbitrary, discriminatory, and unnecessary. We also wanted to make sure that the law would be changed positively for adult victims too, and not just child victims.
The Court has suspended the order of invalidity, and given Parliament 18 months to change the wording of the section of the law…
“It was important for us that prescription should be scrapped for all sexual offences, whether they were committed against children or adults, and whether it was rape or any other offence.
“Every sexual offence case is different, and so is the impact on every victim. We therefore believe that the NPA should be allowed an opportunity to consider each case, and exercise its discretion, regardless of how long ago it happened.”
What did this ruling mean for survivors of sexual offences?
“The old section 18 of the Criminal Procedure Act said that after 20 years, the NPA can no longer institute a prosecution of a sexual offence, unless it was rape. Legally, we call this “prescription”. In terms of the old section 18, the only sexual offence that never “prescribed” was rape.
“The ruling declared section 18 unconstitutional and invalid, in that it prevents the NPA from prosecuting sexual offences that happened more than 20 years ago, except rape.”
You will now be able to report the sexual offence to the police, no matter how long ago it happened…
“The Court has suspended the order of invalidity, and given Parliament 18 months to change the wording of the section of the law, so that it will allow the NPA to consider prosecuting all sexual offences, regardless of how long ago they happened.
“In the meantime, the court has ordered that section 18 must be read as if no sexual offences, whether against adults or children, will ever prescribe.”
What does this mean for a survivor who would now like to report a sexual offence that happened more than 20 years ago?
“You will now be able to report the sexual offence to the police, no matter how long ago it happened, and they will have to open a docket and investigate the case as they should normally do.
“The docket will then be referred to the NPA, and the NPA will exercise its prosecutorial discretion in deciding whether to take the case to court. This review of the case by the NPA is a normal part of any sexual offences prosecution.”
What are the first steps, and what organisations can they turn to for support?
“There are a number of nonprofit legal centres that will give victims free legal advice, as well as a number of organisations that can help with counselling and other psycho-social services, such as the Teddy Bear Clinic for children, and Rape Crisis for adults.
“The Lawyers for Human Rights Gender Equality Programme will also provide free legal advice to any victim who is unsure whether they can take their “old” case to the police or not.”
Source – Women24