Call for ruling on sex crimes
Parliament needs to decide if they should prescribe after 20 years
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
BAFFLED: Paul Diamond and Shane Rothquel, inset, two of the so-called ‘Frankel 8’, outside the Constitutional Court in Braamfontein yesterday.