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Court ruling a victory but justice is still elusive for survivors of sex crimes

Eight women and men took on the law so a businessman accused of sexually abusing them decades ago could be brought to book. He died before the law could be changed but that did not stop them. This week, the Johannesburg High Court ruled that Section 18 of the Criminal Procedure Act – which states survivors of sexual abuse crimes have to lay charges within 20 years – was unconstitutional. The Daily Vox unpacks what that means for sexual abuse survivors.

In 2013, a civil lawsuit was brought by eight people against Sidney Frankel, a Johannesburg billionaire who they accused of sexually abusing them as children. He died earlier this year, so the group challenged the constitutionality of the section that put a 20-year time limit on reporting sexual assault. On Monday, they won their battle.

In her judgment on Monday, acting judge Claire Hartford said, “to create a random cut off-time of 20 years for prescription of sexual offences when vast swathes of evidence demonstrate that they inflict deep continuous trauma on victims, many of whom suffer quietly … is entirely irrational and arbitrary.”

Sheena Swemmer from the Centre for Applied Legal Studies said this ruling means there will no longer be a prescription period for any sexual offences, in terms of either common law or the Sexual Offences Act.

“Any individual who was sexually violated more than 20 years ago can come forward now and report the case to the police. The prosecution now has the discretion to move forward with that case and prosecute,” she said. Previously, such cases involving non-penetrative rape could not be brought to court if they occurred more than 20 years ago.

Swemmer said one of the issues with cases where people have come forward after 20 years is the evidence needs to be strong, like any other sexual offence.

While, in principle, this mean that more people would be able to report sexual abuse, it does not necessarily mean that many more cases would now be reported. “You’re not going to have many people come forward because of the low conviction rate; sometimes victims feel it’s not worth coming forward because you relive these things and have it result in a acquittal,” she said.

Swemmer said that while the ruling showed goodwill from the state, there was a lack of resources and training to deal with such cases.

Shaheda Omar, director of child advocacy group the Teddy Bear Clinic, which was a friend of the court in the case, said current law was discriminatory and violated the survivor’s rights to human dignity.

She said the judgment this week acknowledged the suffering of survivors because some people do not report rape immediately. “Victims don’t always make an immediate or purposeful disclosure for many reasons,” she said.

Omar said the process of disclosure was painful and reopens wounds, which prevents survivors from speaking out. “Physical scars fade but the emotional scars are quite deep and linger on forever.”

However, she said the new ruling is inclusive, as people who dealt with trauma differently would now be given a platform, after 20 years. “It lifts weight off victims’ shoulders where it will encourage many victims to come forward and make a disclosure.”

Only one in four cases of rape is ever reported. Of these, just one in nine results in a prosecution, Omar says.

Acting judge Hartford also noted that, “the law must encourage the prosecution of these nefarious offences, which are a cancer in South African society, and must support victims in coming forward, no matter how late in the day.”

The high court ruling is pending confirmation by the Constitutional Court and the Act will then go to Parliament for redrafting within 18 months.

Featured image via Public Domain Images

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