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Court case could axe a loophole letting sexual abusers off the hook for old offenses

Eight men and women may change the law and pave the way to justice and healing for thousands.

The Johannesburg High Court will today hear a court case – brought by eight men and women – that could overturn a law allowing sex offenders to escape justice for crimes committed more than 20 years ago.

Nicole Levenstein, Paul Diamond, George Rosenberg, Katherine Rosenberg, Daniela McNally, Lisa Wegner, Shane Rothquel and Marinda Smith filed civil lawsuits in 2013 against billionaire businessman and socialite Sidney Frankel. The group has accused Frankel of sexually abusing them as children and each is claiming damages of R5-million.

The group is expected to go before the court today to challenge Section 18 of the Criminal Procedure Act. This section states that while crimes of rape may be prosecuted any time, sexual abuse crimes prescribe after 20 years, meaning that victims must pursue cases against their abusers within this time.

The group and lawyers from Wits University’s Centre for Applied Legal Studies (Cals) are arguing that this limit on sexual abuse prosecutions is unconstitutional. Court papers filed by Cals and that will be presented on Monday, argue there is no difference in the harm experienced by survivors of rape or sexual abuse victims.

The minister of justice and correctional services and the Gauteng director of public prosecutions have indicated in court papers that they support the case and will abide by the court’s decision.

Frankel died in April. At the time of his death he was facing eight charges of child molestation and sexual abuse. Cals attorney Sheena Swemmer says the organisation has chosen to continue to pursue the case because it could have far-reaching implications for other survivors of sexual abuse who have not seen justice.

A 2015 study published in the journal Child Abuse Review found that delays in disclosing child sexual abuse are common. The study also reveals there is no consistent evidence that shows a relationship between the severity of abuse and the moment a victim discloses.

“In the real world, children don’t disclose how they have been sexually violated immediately. Child victims are unlikely to say they are being violated when the abuse is happening. Disclosure is not a single event,” says Shaheda Omar, director of Johannesburg’s Teddy Bear Foundation, which supports abused and neglected children.

Omar explains their stance on the court case: “Victims who have not been penetrated have suffered an equally devastating trauma as those that have. They both have long-term implications like post-traumatic stress disorder, depression and anxiety. This shows that one cannot draw a distinction between penetrative and non-penetrative sexual abuse.”

The foundation is acting as amicus curiae or friend of the court and provides additional information to the court in the case.

A 2009 study by the Medical Research Council found that girls who had been exposed to emotional, sexual and physical violence were at increased risk of later contracting HIV or depression, had more suicidal tendencies and were more susceptible to substance abuse.

Swemmer says she believes the courts will rule in their favour and that this will be a precedent-setting case.

“The decision [of the high court] will probably then go to the Constitutional Court and we hope the court will confirm that the provision is constitutionally invalid. Hopefully, the legislation will be amended accordingly,” she says.

For Frankel’s alleged victims and many child sexual abuse survivors, the courts’ decisions could finally bring justice and healing, says Omar.

She adds: “The criminal law has ignored the psychology around cases of sexual violence. If the outcome of this case is positive, it will mean that the law is changing to acknowledge the very real trauma of sexual violence, especially in children.” 

Pontsho Pilane is the communications manager at Soul City Institute for Social Justice. Pilane was a health journalist at Bhekisisa from 2017 until 2019.