Sexual offences epidemic: How is the law assisting?

On 14 June 2018, the Constitutional Court took a step in the right direction in the case of Levenstein and Others v Estate of the Late Sidney Lewis Frankel and Others 2018 ZACC 16. The Constitutional Court found that section 18 of the Criminal Procedure Act 51 of 1977 (Criminal Procedure Act) was inconsistent with the Constitution to the extent that it bars, in all circumstances, the right to prosecute all sexual offences, other than those listed in section 18(f), (h) and (i) of the Criminal Procedure Act, after the lapse of 20 years from the time when the offence was committed.

Section 18 created an arbitrary distinction between sexual offences listed in section 18(f), (h) and (i), being rape or compelled rape, human trafficking and using a child or person who is mentally disabled for pornographic purposes, and those that fell under the common law. The latter and far-broader category of common law offences, including sexual assault, could not be prosecuted 20 years after the offence had been committed.

In the Levenstein case, the Constitutional Court afforded Parliament 24 months to enact remedial legislation. And so, on 22 November 2019, a few days before the official start of 16 Days of Activism, a period allocated to raising awareness around violence against women and children, Parliament published the Prescription in Civil and Criminal Matters (Sexual Offences) Amendment Bill (Bill).

The Bill contains three significant proposed amendments to the current statutory framework:

• Section 12 of the Prescription Act 68 of 1969 (Prescription Act) regulates when prescription in civil matters begins to run. Section 12(4) provides that prescription does not commence in respect of a debt based on the commission of, among others, certain statutory sexual offences during the time in which the victim is unable to institute proceedings because of his or her mental or psychological condition. Clause 1 of the Bill aims to amend section 12(4) of the Prescription Act, in order to ensure that all sexual offences, whether they have been committed under common or statutory law, are included in that section. This means that prescription does not commence in respect of claims based on any sexual offence, not only those listed in section 18(f), (h) and (i).
  
  
• The Bill further amends the Prescription Act in that it delays the running of prescription in certain circumstances, for example, where the victim is a minor, is “insane” or is a person under curatorship. Clause 2 of the Bill aims to amend section 13 of the Prescription Act to make provision for those cases where victims of sexual offences are in a position to institute proceedings (for example, an adult), but then suffer relapses which prevent them from instituting proceedings for a period. Clause 2 aims to replace the term “insane” with the phrase “mental or intellectual disability, disorder or incapacity”. In the Levenstein matter, the victims of the sexual assault alleged that they did not institute criminal proceedings against the perpetrator within the period prescribed by section 18 because of a lack of full appreciation of the nature and extent of the criminal acts allegedly perpetrated on them. This amendment therefore seeks to correct a situation where a sexual assault takes place when the victim is a child and the victim reaches majority but is still not in a position to institute their claim based on some kind of mental incapacity. It therefore broadens the basis on which prescription can be interrupted once the victim has become an adult.
  
  
• Section 18 of the Criminal Procedure Act regulates the prescription of the right to institute prosecutions after a period of 20 years has lapsed after the alleged commission of certain offences. A prosecution may, in terms of section 18, only be instituted after a period of 20 years has lapsed after the alleged commission of certain statutory sexual offences. Clause 3 of the Bill aims to amend section 18 of the Criminal Procedure Act to include reference to all sexual offences, whether they have been committed under common or statutory law. The result of this amendment is that there will no longer be a distinction between statutory and common law sexual offences for the purposes of prescription. This means an offender can be prosecuted for any sexual offence, statutory or not, no matter how much time has passed.

It is important to note that an amendment to the statutory provisions relating to the prescription of civil claims and criminal prosecutions arising out of sexual offences does not cure the disease of violence against women and children but rather treats its symptoms by ensuring that survivors have the opportunity to be appropriately compensated and that offenders can still be prosecuted despite lengthy lapses in time. It provides protection to children who have been victims of any sexual offence by allowing them to come forward many years after the offence took place. This Bill is a step in the right direction but is unfortunately reactive in nature. The time has come for South Africa to come up with proactive solutions and legislative frameworks which deal with the root cause of violence against women and children.