The Constitutional Court recently handed down an important judgment on sexual offences. The judgment confirms that these are serious crimes and that the state should be able to prosecute them at any time. But what does this mean for survivors of sexual abuse?
The Constitutional Court judgment was in a case against accused sexual offender, the late Sidney Frankel. The case was originally brought by eight women and men who wanted to press criminal charges against Frankel for sexual abuse they allege they had experienced as children. But first, they had to challenge a section of criminal law that prevented the state from prosecuting sexual offences (other than rape) after more than 20 years had passed.
The High Court agreed with the applicants in a landmark judgment handed down last year. The judgment acknowledged their bravery in coming forward and ruled that it was irrational for the law to draw a distinction between rape and other sexual crimes, since survivors of any sexual offence may experience similar trauma. The Constitutional Court confirmed on Thursday that there should be no time limit on prosecuting any of these offences and gave Parliament 24 months to make changes to the law to reflect this.
What the court did not — and could not — acknowledge was that Parliament has, in fact, already started making these changes. It became clear in court last year that the state had no objections to removing the time limits from all sexual offences. By the end of 2017, the Minister of Justice and Correctional Services had already begun consulting the public on proposed changes to the law. These amendments are currently being considered by the National Assembly, and we can expect them to be passed soon.
So, if Parliament is already making the necessary changes to the law, what exactly is the purpose of the recent judgment?
The purpose of the judgment is to ensure that the new amendments are written in stone; that survivors of sexual violence can seek justice at any time. It is there to acknowledge that previously, there was a mismatch between the law and the lived experiences of the people the law is designed to protect.
We all have a role to play in supporting survivors and helping to combat sexual abuse. It is our responsibility to understand that every person has the right to dignity, autonomy and to be free from all forms of violence.
Evidence put before the court by the Teddy Bear Foundation shows that survivors, especially children, typically take a long time to process and come to terms with the trauma of sexual abuse. They tend to disclose information over a long period of time as adults. The evidence also shows that the sexual assault of children is an especially terrible crime which can cause severe trauma that can be comparable to the experiences of rape survivors.
Previously, the law did not recognise these realities. The judgment is thus also there to acknowledge a past unfairness and record our responses to it. It is there to ensure that, from now on, the law responds to real life.
But we also need to acknowledge that there are a number of things the judgment cannot do. It cannot undo the harm that survivors have already experienced. It may bring relief to some who would like to come forward, or who wish to have the option to come forward at any point, but it's most likely the majority will not. According to a recent study published by the Medical Research Council, the number of survivors who report rape could be as low as 1 in 25 in South Africa.
That means 24 out of 25 people who experience sexual violence may never report these crimes. There are many possible reasons for this, which are nuanced and varied. They include: having little faith in the criminal justice system; being afraid of further trauma at the hands of police, prosecutors and judges; facing families and communities that dissuade reporting sexual violence, and simply feeling that they will not be believed and would instead be stigmatised for what has happened to them.
In addition, the judgment alone cannot prevent more harm from occurring. Even the changes in the law or proposing harsher sentences will not necessarily act as a deterrent to people committing sexual offences. In fact, research generally shows even the threat of prison or other kinds of punishment does not reduce crime. Instead, it is the certainty of being caught and the informal sanctions imposed by society that act as much more powerful deterrents.
This means that we all have a role to play in supporting survivors and helping to combat sexual abuse. It is our responsibility to understand that every person has the right to dignity, autonomy and to be free from all forms of violence. It is our responsibility to learn, to listen to them and believe them. It is our responsibility to speak out. Judgments and laws alone cannot teach people to value each other; it is up to society to change.
Lee-Anne Bruce and Sheena Swemmer are based at the Centre for Applied Legal Studies at the Wits University Law School.