Call for rul­ing on sex crimes

Par­lia­ment needs to de­cide if they should pre­scribe af­ter 20 years

The Star Early Edition - - NEWS - SHAIN GERMANER

BESTIALITY. Ne­crophilia. Adult con­sen­sual in­cest. Par­lia­ment needs to de­cide on the se­ri­ous­ness of th­ese crimes, and whether they should pre­scribe af­ter 20 years.

Be­cause of this, the Con­sti­tu­tional Court should not make a blan­ket rul­ing al­low­ing any­one to re­port any sex­ual crime more than two decades af­ter it has taken place.

This was the ar­gu­ment of Jus­tice Min­is­ter Michael Ma­sutha yes­ter­day, through his lawyer, Steven Budlen­der.

The so-called Frankel 8 have spent years op­pos­ing the cur­rent leg­is­la­tion around sex­ual as­sault, and ear­lier this year were fi­nally suc­cess­ful in se­cur­ing a rul­ing at the high court in Joburg that of­fi­cially stated the ir­ra­tional­ity of sec­tion 18 of the Crim­i­nal Pro­ce­dure Act.

This sec­tion states that vic­tims of sex­ual as­sault – among other sex crimes, ex­clud­ing rape – may not open up a crim­i­nal case more than 20 years af­ter the in­ci­dents oc­cur.

The group of eight came to­gether decades af­ter they were al­legedly abused as chil­dren by phi­lan­thropist Sid­ney Frankel, and were shocked to dis­cover they were un­able to crim­i­nally charge him for his years of sex­ual ad­vances.

For more than two years, the Frankel 8 – through their lawyers, Ian Le­vitt and An­ton Katz – have ar­gued the un­con­sti­tu­tion­al­ity of this sec­tion, and were fi­nally vin­di­cated ear­lier this year by Act­ing Judge Claire Hart­ford, who said the leg­is­la­tion must be changed.

The judge ruled that the sec­tion had vi­o­lated the rights of vic­tims of sex­ual abuse, and made a sus­pen­sion of declar­ing the con­sti­tu­tional in­va­lid­ity for a pe­riod of 18 months to al­low Par­lia­ment to rec­tify the de­fect.

How­ever, be­cause Frankel died be­fore this rul­ing, the group were never able to charge him crim­i­nally.

Yes­ter­day, the eight ap­proached the Con­sti­tu­tional Court in a bid to re­move this sus­pen­sion, be­liev­ing that if Par­lia­ment fails to act within the 18 months time limit, the dec­la­ra­tion of in­va­lid­ity be­comes op­er­a­tive with­out the words that have been read in.

Dur­ing oral ar­gu­ment yes­ter­day, Katz in­sisted that a blan­ket re­moval of the pre­scrip­tion of sex­ual crimes was the right course of ac­tion – a propo­si­tion sup­ported by friends of the court: the Teddy Bear Clinic, the Women’s Le­gal Cen­tre and Lawyers for Hu­man Rights.

Ac­cord­ing to Katz, wait­ing for Par­lia­ment to amend the act meant pos­si­ble in­ter­fer­ence with cases opened dur­ing the 18-month pe­riod, es­pe­cially if Par­lia­ment de­cides to ap­ply the new law retroac­tively.

De­spite an im­pas­sioned ar­gu­ment, Katz was con­fronted with a bar­rage of ques­tions from mul­ti­ple judges re­gard­ing this logic. Jus­tice Mbuyiseli Mad­langa said it was un­likely Par­lia­ment would make a retroac­tive de­ci­sion as this in it­self would be un­con­sti­tu­tional.

Jus­tice Chris Jafta was also quick to point out that re­gard­less of whether the sus­pen­sion was set aside, the rights of any­one want­ing to open ini­tially pre­scribed cases since the high court rul­ing would not be in­fringed, and un­der­stood Judge Hart­ford’s rul­ing as ap­ply­ing un­til Par­lia­ment de­cides oth­er­wise.

Katz also ar­gued that Ma­sutha had failed to ini­ti­ate the change in leg­is­la­tion, with no in­di­ca­tion in his own re­spond­ing pa­pers that Par­lia­ment had started its amend­ment process at all, de­spite ad­mit­ting that sec­tion 18 was ir­ra­tional and un­con­sti­tu­tional.

Budlen­der, in his re­sponse, said this was ir­rel­e­vant and un­founded, and the min­is­ter was en­ti­tled to wait un­til af­ter the le­gal pro­ceed­ings be­fore ini­ti­at­ing the amend­ments. De­spite this, he said the De­part­ment of Jus­tice had al­ready be­gun de­ter­min­ing how to draft the new bill, though this was still at an early stage.

Budlen­der ar­gued that it was ul­ti­mately up to Par­lia­ment to de­ter­mine the se­ri­ous­ness of each of the sex­ual of­fences that fall un­der sec­tion 18, and that the ex­am­ples of bestiality, in­cest and ne­crophilia – as “vic­tim­less crimes” – were less se­ri­ous than sex­ual as­sault.

He said the min­is­ter had asked for a 24-month sus­pen­sion of in­va­lid­ity.

The court re­served judg­ment.

Out­side the court, three of the Frankel 8 – Shane Rothquel, Paul Di­a­mond and Marinda Smith – all said they were baf­fled by the min­is­ter’s ar­gu­ments.

Un­likely Par­lia­ment would make a retroac­tive de­ci­sion

PIC­TURE: DIMPHO MAJA / ANA

BAF­FLED: Paul Di­a­mond and Shane Rothquel, in­set, two of the so-called ‘Frankel 8’, out­side the Con­sti­tu­tional Court in Braam­fontein yes­ter­day.

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