# Amendment to law allows the state to prosecute for sexual offences more than 20 years after the fact

- Link: https://dearsouthafrica.co.za/2020/07/28/amendment-to-law-allows-the-state-to-prosecute-for-sexual-offences-more-than-20-years-after-the-fact/
- Published: 2020-07-28T16:29:26+02:00
- Author: dearSA

![sex-offenders-amendment-bill-DearSA](https://cdn.dearsouthafrica.co.za/wp-content/
uploads/2020/07/20191009/sex-offenders.jpg "sex-offenders")

### Proposed amendments to the law will make it possible to prosecute sex offenders decades after the offences were committed – unlike the existing Criminal Procedures Act which allows for a 20 year window in which to bring prosecutions.

[Click here to have your say on the amendment bill ](https://dearsouthafrica.co.za/sex-offenders-amendment-bill/)

DearSA requested [expert legal opinion](https://cdn.dearsouthafrica.co.za/wp-content/uploads/2020/07/20191010/Legal-Opinion-Civil-and-Criminal-Matters-sexual-offences-amendment-bill.pdf)
on the proposed amendments from attorneys Hurter Spies.” This is a crucial amendment
to our criminal legal framework, and we wanted to ensure that the voices of victims
are properly heard at the highest levels of government,” says DearSA programme director
Rob Hutchinson. “Parliament should be commended for its work in bringing our criminal
laws into conformity with the Constitution and our legal opinion reflects that position.”

**In keeping with its mandate to ensure broad public participation in all matters
governance-related, DearSA requested an expert legal opinion to ensure that ordinary
South Africans have a say in the shaping of these legal amendments.** The Criminal
Procedure Amendment Bill, 2018, was introduced in Parliament on 30 May 2018 as a
result of the Constitutional Court judgment delivered in the now infamous “Frankel
Eight” case.

However, the Department of Justice and Constitutional Development briefed the Portfolio
Committee of Justice and Correctional Services on the proposed amendment without
asking interested parties to comment. DearSA believes these amendments are of broad
public interest and are therefore deserving of public comment.

The proposed amendments will also broaden the net of sex victims to include not 
just children, but adults. This follows a Constitutional Court ruling in 2018 that
required Parliament to amend a number of laws to conform with the Constitution.

The genesis of these amendments goes back to the infamous case of Sidney Frankel,
the billionaire former stockbroker, who died in 2017 before having a chance to face
eight accusers who claimed they had been sexually assaulted and raped as children.

The so-called Frankel Eight came forward in 2013 with startling allegations against
the former stockbroker.  They alleged they had been sexually assaulted by Frankel
between 1970 and 1989 when they were aged between 6 and 15 years old and had suffered
physical, emotional, and psychological trauma thereafter.

Frankel passed away in April 2017 shortly before getting his day in court, but he
would in any event be able to claim that the 20 year ”prescription” since the time
of the sexual abuse had lapsed. In other words, the victims had waited too long 
to bring their claims of criminal sexual assault.

The Director of Public Prosecutions for Gauteng refused to bring a prosecution against
Frankel on the grounds that the Criminal Procedures Act debars prosecution for sex
crimes more than 20 years after the fact.

Not satisfied with this outcome, the Frankel Eight in 2017 brought a case before
the Johannesburg High Court to have the 20 year prescription (time period allowed
for the launching of legal proceedings) outlined in the Criminal Procedure Act (
CPA) of 1977 declared unconstitutional.

**The legal case was a success,** the court ruling that section 18 of the Criminal
Procedure Act was unconstitutional in barring victims of sexual abuse from launching
legal proceedings after a period of 20 years had elapsed from the time the offence
was committed.

The finding was appealed by the estate of Sidney Frankel, and eventually found its
way to the Constitutional Court for confirmation of the Joburg High Court’s ruling.
The Joburg High Court also ruled that not only was the 20 year prescription unconstitutional,
but also the law fact that relevant sections of the CPA applied only to children.

The Constitutional Court agreed with the Joburg High Court and gave Parliament 24
months to amend the section 18 of the CPA so that it conforms with the Constitution.

**In January 2019, Parliament decided to draft amendments to section 18 of the Criminal
Procedure Act, 1977, and section 12 of the Prescription Act, 1969.**

The amendment to the CPA extends the list of sexual offences for which prescription
does not apply. In other words, there will be no longer be a 20 year expiration 
date for bringing legal action, and the range of sex offences will be broadened 
considerably.

Amendments to the Prescription Act will make it possible for victims of sexual offences
o institute legal proceedings even where they have deemed to have suffered ‘‘mental
or intellectual disability, disorder or incapacity’’, rather than “insanity” as 
in the current wording of the Act.

The range of sexual offences for which prosecutions may be instituted include rape,
compelled rape (where someone is compelled to witness a sex act) or using a child
or person who is mentally disabled for pornographic purposes.

Perpetrators of sexual offences may now be subject to both criminal and civil proceedings
on a wider range of offences, irrespective of when the crimes took place.

The purpose of these amendments is to encourage survivors of sexual offences to 
reports these matters so that perpetrators are not left to roam free.

“We are also cognisant of the fact that our criminal justice system still has to
undergo more substantive reforms in order to systemically address any secondary 
victimization experienced by survivors in the criminal justice system,” says Daniel
Eloff, attorney with Hurter Spies. “We believe the proposed amendments will undoubtedly
pass constitutional muster as it is a direct response to a declaration of unconstitutionality
by the Constitutional Court.”

 

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