Court opens way for old sex cases to be resolved
Ruling welcomed but officials say they’ll have challenges to overcome
AUTHORITIES could find it difficult to prosecute very old sexual offences following the landmark ruling which found the 20-year prescription on sexual offences unconstitutional.
These were the views of a senior prosecutor, who said last week’s ruling by Judge Clare Hartford at the South Gauteng High Court in Johannesburg could pose challenges for prosecutors in the future should the law comes to pass.
The senior prosecutor, who asked to remain anonymous, was reacting to the judgment in the matter between the so-called Frankel 8, who wanted section 18 of the Criminal Procedure Act – which deals with the 20-year prescription on reporting alleged sexual offences – declared unconstitutional so they could prosecute late billionaire Sidney Frankel for allegedly sexually assaulting them over 20 years ago.
The judge has given Parliament 18 months to change the law that restricts when sexual offences cases can be reported and prosecuted.
Judge Hartford’s ruling still has to be ratified by the Constitutional Court.
The senior prosecutor said the challenges in prosecuting dated cases could lie when the necessary evidence or witnesses were not available.
“It’s always going to be a huge challenge,” the official explained.
“After that long period of time people pass on, people move, and people might no longer remember where they were at the time of the crime.
“This law could be a welcome development, especially for sexual violence survivors. They would feel like they are not bound to a prescribed time frame with their case like any other case,” he said.
“The gathering of real evidence such as the DNA evidence, the semen and blood evidence… those things can only work if collected immediately after the incident and analysed at the forensic lab.
“We have many sexual offences cases that involve minors or babies and are mainly proved through DNA. You might find that after a long period of time it may be difficult to recoup such DNA evidence. People grow and change so much,” he added.
However, he welcomed the ruling, saying: “What this means is that sexual offences are placed at the same rare classifications as all other cases and that they can be prosecuted at any time. But practically I think there are obviously many difficulties and that is going to be a huge challenges for the prosecuting authority.”
Phephelaphi Dube, director of the Centre for Constitutional Rights, said the decision by the court to remove the 20-year prescription period in sexual offences was an important affirmation of certain constitutional rights and values.
“It affirms the right to dignity as well as the right to freedom and security of the person. The decision shows a keen awareness of the need for freedom from the threat of sexual violence for South African women,” said Dube
“The ruling also affirms the knowledge that sexual violence has been a threat to the self-determination of South African women and it certainly gives survivors of sexual violence hope that at the very least the legal system recognises their pain and trauma despite the passage of
Passage of time can play havoc with collecting good evidence
time,” Dube said.
However, just like the prosecutor, Dube also stated that sustaining evidence such as clothing, DNA, and victims’ memories would be difficult to preserve for long periods, and may pose difficulties for the prosecuting authority.
“Despite the NPA and the Department of Justice boasting of the high rates of conviction of sexual offences, the reality is that the NPA only prosecutes cases where it has a reasonable chance of gaining a conviction,” she said.
Shadrack Gutto, a retired law professor and constitutional law expert, told The Star that it was a good thing that victims of sexual offences could finally report crimes that had been done to them without having a time limit.
However, Gutto raised some of his concerns about the challenges that the prosecutors might face in the future.
“Not that I’m opposing the possible outcome of the judgment, but I personally feel like, it will be difficult for officials to pursue cases that are longer than 30 years,” said Gutto.
He added that people tend to forget things and when they have to recall events that happened, certain things will change.
Enquiries relating to how the law would work around these issues were sent to the Department of Justice and the National Prosecuting Authority, but neither office was able to respond by the time of publication. @Zwane_2li2ls @Sabie_M