A section of the Criminal Procedure Act (CPA) that imposes a 20-year limit on prosecution for sexual assault violates the victims’ human dignity and their right to access courts.
This is according to counsel for the alleged victims of late stockbroker Sydney Frankel. The child-molestation survivors claim the billionaire sexually assaulted them more than 20 years ago in the 1970s and 1980s‚ when they were between the ages of seven and 15.
Frankel died at his home in Johannesburg earlier this year‚ at the age of 68.
The victims have now approached the Constitutional Court‚ asking it to confirm a South Gauteng High Court order declaring Section 18 of the CPA unconstitutional.
The section imposes a limit of 20 years in which to prosecute sexual assault‚ but the limit does not apply to rape.
The High Court ruled in favour of the victims‚ and referred the matter to the Constitutional Court for a final ruling on the constitutionality of Section 18.
Arguing for the victims in the Constitutional Court on Tuesday‚ Anton Katz SC contended that no sexual offences should have any cut-off date limiting prosecution.
“Section 18 is irrational and doesn’t serve the governmental purpose it sets out to achieve‚” Katz argued.
The section as it stands‚ according to Katz‚ does not allow perpetrators to have their day in court‚ and as such it has a traumatic effect on victims.
Katz argued that all Frankel’s alleged victims have‚ since the incidents occurred‚ had negative attitudes towards their sexuality‚ their relationships and their bodies.
“The applicants contend that the limitation that Section 18 imposes is not justifiable… [It] is irrational‚ because it makes arbitrary distinctions in respect of the gravest of crimes‚” he continued‚ adding: “…as in the case of rape‚ so too in relation to other forms of sexual abuse‚ a woman [or] child’s rights to bodily and psychological integrity are infringed…”
Frances Hobden for the Women’s Legal Centre (WLC) also argued that the section is irrational and unconstitutional‚ in that it creates a barrier to protecting the rights of women.
“The WLC submits that the bar on prosecution of certain sexual offences after 20 years unjustifiably hampers the state’s fulfilment of its constitutional obligation to prosecute sexual offences in order to respect‚ protect‚ promote and fulfil the fundamental rights in the Bill of Rights‚” she argued.
The Teddy Bear Clinic‚ which was admitted as a friend of the court‚ argued that the distinction between rape and sexual assault is arbitrary and unlawful‚ “because it fails to recognise that the nature of the harm of sexual assault is inherently comparable to that of rape‚ and it fails to take cognisance that the nature of disclosure among adult survivors of [childhood] sexual assault is complex and lengthy“.