Long-buried incidents by sexual predators who abused children could come out to haunt the perpetrators – years after they committed such offences.
An ambitious Constitutional Court application could potentially change the law around indecent and sexual assault, opening the floodgates for victims of child abuse to pursue criminal charges against their violators decades after the abuse.
On Monday, Ian Levitt Attorneys filed their application, calling on the apex court to change the law around proscription for sexual and indecent assault cases.
The application centres around the allegations that well-known philanthropist and stockbroker Sidney Frankel abused at least eight men and women more than two decades ago when they were children.
The allegations surfaced in the middle of last year, when siblings Paul Diamond and Nicole Levenstein called on the public to find other victims of Frankel’s alleged abuse.
The now eight alleged victims have instituted civil claims against Frankel because they do not have the option to criminally charge him, as the sexual crimes act at the time defined what happened to them as indecent assault.
Currently in South African law, such crimes committed more than 20 years ago may not be prosecuted, unlike the charge of rape, which never prescribes.
However, Levitt’s team argue that this is not in line with the constitution, and if the crimes had been committed after the Criminal Law Amendment Act of 2007, they would have been classified as rape, and therefore never proscribed.
The application’s founding affidavit, written from the perspective of Diamond and the seven other complainants, explains: “It would be unjust and unfair to deprive the victims of such abuse from being able to ensure their perpetrators stand trial, and if convicted are appropriately punished.”
It further states: “It is of paramount importance to establish a regime against all kinds of sexual violations and sexual assault, but particularly crimes of a sexual nature committed against children, as these crimes are regarded as particularly abhorrent in society.
“It stands to reason that we are not only victims of sexual abuse, but also have to forgo justice because of the absolute bar set by section 18 of the Criminal Procedure Act.”
The affidavit also explains why the group has chosen to forgo an application at the lower courts.
“We simply cannot afford – emotionally and financially – a long-drawn-out process involving a number of courts considering our constitutional complaint, and only thereafter for criminal proceedings to be initiated.”
Attached to the application is a lengthy expert report explaining how victims of child abuse would often not report the crimes against them – sometimes reporting them only decades later – based on numerous factors.
“This is not just about the victims of Sidney Frankel. Every day, adults who were abused as children are having their cases nolle prosequi (thrown out). Every day, perpetrators guilty of these crimes are escaping,” Levitt told The Star on Monday.
The application was also served on Justice Minister Michael Masutha, Gauteng Director of Public Prosecutions advocate Andrew Chauke and Frankel.
Billy Gundelfinger, who is acting on behalf of Frankel, said the matter would be opposed. He declined to comment further, but in his previous interactions with The Star, he emphatically denied the allegations against Frankel.
According to Lisa Vetten, a research associate at Wits University’s Institute for Social and Economic Research, this could prove to be a very important application for those suffering from past abuse.
“It shows how standards and values have changed over the years, and it could be important for cases that would now be thought of as rape,” she said.
Regarding the request to directly access the Constitutional Court for the bid, Vetten said Frankel’s advanced age would be taken into account by the court.
She also said it was notable that the complainants had expressed how they could not handle a lengthy, multi-court process, financially or emotionally.[Source: The Star]