Constitutional Court rules on time bar for prosecuting sexual offences

Levenstein and Others v Estate of the Late Sidney Lewis Frankel and Others 2018 ZACC 16

Court: Constitutional Court of South Africa

Date of judgment: 14 June 2018

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On 14 June 2018, the Constitutional Court of South Africa (the Constitutional Court) declared section 18 of the Criminal Procedure Act 51 of 1977 (CPA) to be unconstitutional insofar as it bars the prosecution of sexual offences after 20 years.

Background

Between 1970 and 1989, when the applicants were aged between 6 and 15 years old, Mr Frankel is alleged to have sexually assaulted them. When the applications sought to bring charges against Mr Frankel, the Director of Public Prosecutions declined to prosecute on the basis that the alleged crimes had occurred more than 20 years prior, and that section 18 of the CPA imposes a time bar of 20 years for the right to institute a prosecution for such crimes. The applicants submitted that they did not institute criminal proceedings against Mr Frankel within the prescribed period because of a lack of full appreciation of the nature and extent of the acts perpetrated on them.

Section 18 of the CPA provided as follows:

The right to institute a prosecution for any offence, other than the offences of—

…

(f) rape or compelled rape as contemplated in sections 3 or 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively;

…

shall, unless some other period is expressly provided for by law, lapse after the expiration of a period of 20 years from the time when the offence was committed.

The crux of the applicants’ submission was that there was no rational basis for distinguishing rape or compelled rape from other forms of sexual offences. In this regard, they contended that section 18 of the CPA was irrational and arbitrary, and therefore unconstitutional and invalid, in that the distinction it seeks to make is based on the perceived seriousness of the offences and their impact on the survivors. They further contended that it unjustifiably violated their rights to human dignity, equality and non-discrimination, to be protected from abuse as children, to be free from all forms of violence from both public and private sources, and access to courts.

The High Court of South Africa (Gauteng Local Division, Johannesburg) (High Court) declared section 18 constitutionally invalid “to the extent that it bars, in all circumstances, the right to institute a prosecution for all sexual offences, other than those listed in section 18(f), (h) and (i), after the lapse of a period of 20 years from the time when the offence was committed”. The matter was referred to the Constitutional Court for confirmation proceedings in terms of section 172(2) of the Constitution of the Republic of South Africa, 1996 (the Constitution).

Before the Constitutional Court

The Constitutional Court noted that the primary rationale for differentiation between sexual offences in section 18 seemed to be based on a consideration that certain sexual offences are more serious than others. The Constitutional Court held this to be irrational, stating that “the use of prescriptive periods in section 18 as a basis to distinguish between rape or compelled rape and other forms of sexual assault when the harm they all cause to their survivors is similar, is irrational”. The Constitutional Court stated further that by over-emphasising the significance of the nature of the criminal act at the expense of the harm that it produces to the survivors, section 18 failed to serve as a tool to protect and advance the interests of survivors of sexual assault.

The Constitutional Court went on to explain its reasoning as follows (paras 56-57):

Of pivotal importance to the case before us is this: that the systemic sexual exploitation of woman and children depends on secrecy, fear and shame. Too often, survivors are stifled by fear of their abusers and the possible responses from their communities if they disclose that they had been sexually assaulted. This is exacerbated by the fact that the sexual perpetrator, as the applicants allege Mr Frankel to have been, is in a position of authority and power over them. They are threatened and shamed into silence. These characteristics of sexual violence often make it feel and seem impossible for victims to report what happened to friends and loved ones – let alone state officials. Combined with this is the frequent impact of deeply-located self-blame, which … disables the victim from appreciating that a crime has been committed against her for which the perpetrator, and not she, is responsible.

All these features of survival of sexual trauma make it rational to be reluctant to report and to avoid reporting. And this is before even considering the effect of rape trauma syndrome, the now recognised patterns of emotional, physical, cognitive and behavioural disturbances that approximately one in three survivors of sexual assault develop. Even if a survivor is fully aware that she was abused, she naturally weighs up the possibility of reprisals from the perpetrator together with the possible lack of support from the police and statistically small eventuality that reporting will actually, eventually, result in a conviction in a criminal court.

The Constitutional Court further stated that section 18 of the CPA undermined the state’s efforts to comply with its international obligations, including in terms of the Convention on the Elimination of Discrimination against Women, the Convention on the Rights of the Child, and the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa. As noted in the judgment, these instruments impose a duty on the state to prohibit all gender-based discrimination that has the effect or purpose of impairing the enjoyment by women of fundamental rights and freedoms, and to take reasonable and appropriate measures to prevent the violation of these rights.

The Constitutional Court therefore concluded that “it is clear from the preceding analysis that there is no rational basis for the right to prosecute to lapse after 20 years in respect of other forms of sexual offences, and not for rape or compelled rape. Sexual offences may differ in form but the psychological harm they all produce may be similar.”

Order of the Constitutional Court

Accordingly, the Constitutional Court made the following order:

1. The declaration of constitutional invalidity of section 18 of the Criminal Procedure Act 51 of 1977 made by the High Court of South Africa, Gauteng Local Division, Johannesburg is confirmed.
2. The order is suspended for 24 months from the date of this order to afford Parliament an opportunity to enact remedial legislation.
3. During the period of suspension section 18(f) of the Criminal Procedure Act is to be read as though the words “and all other sexual offences whether in terms of common law or statute” appear after the words “the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively.
4. Should Parliament fail to enact remedial legislation within the period of suspension, the interim reading-in remedy shall become final.
5. The declaration of invalidity is retrospective to 27 April 1994.
6. The first respondent’s appeal against the costs order of the High Court is dismissed with no order as to costs.
7. The second respondent is to pay the costs of the confirmation proceedings.

The full judgment is accessible here.

Please note: The information contained in this note is for general guidance on matters of interest, and does not constitute legal advice. Power Singh Inc. was not involved in this matter. For any enquiries, please contact us at [email protected].