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Sex offenders to be held accountable

Amendments to the Criminal Procedure Act in 2018 has ensured that sex offenders can be brought to book by adults who were sexually abused as children, as the time restriction of 20 years that was in place for prosecuting offenders has been removed.

After hearing this news, which is a welcome relief for many victims of sexual abuse and Gender-Based Violence (GBV), sisters Lisa van der Merwe (56) and Claudine Shiels (60) laid charges against their alleged childhood abusers. The sisters were allegedly sexually abused by two relatives from 1974 to 1979.

Van der Merwe was reported as saying that it was only after Cabinet approved the introduction of the Criminal Procedure Amendment Bill, 2018, aimed at amending the Criminal Procedure Act to see sexual offences prosecuted retrospectively, that she decided to take action as the statute of limitations had been amended.

The sisters want an open trial to expose the perpetrators’ lack of remorse and give strength to those in similar situations who are scared to speak out.

Constitutional Court sets wheels in motion

In May 2018, Cabinet approved the introduction of the Criminal Procedure Amendment Bill, 2018, which amends the Criminal Procedure Act.

The proposed Amendment Bill not only enables charges to be filed against offenders after 20 years, it also extends the list of sexual offences in respect of prosecution.

The amendments to the Bill will make a world of difference for many others who suffered sexual abuse as children, as while they may have been too scared to say anything when they were younger, they can now seek justice.

The changes came about following the South Gauteng High Court’s judgement in the Levenstein court case, in which eight women wanted to lay criminal charges against stockbroker Sidney Frankel, who they accused of being a paedophile. Frankel has since passed away.

In a unanimous judgment, the Constitutional Court said the law was “…inconsistent with the Constitution and invalid to the extent that it bars, in all circumstances, the right to institute a criminal prosecution for all sexual offences, other than rape or compelled rape; trafficking persons for sexual purposes and using a child or person who is mentally disabled for pornographic purposes; after the lapse of a period of 20 years from the time when the offence was committed.”

The Constitutional Court gave Parliament two years to “cure the constitutional defect” and signalled that inaction would result in an automatic implementation of its ruling.

The amendments also enable the National Prosecuting Authority wider discretion to institute prosecutions in sexual offences, in accordance with Chapter 2 of the Constitution.

Justice and Correctional Services spokesperson Chrispin Phiri said in a media report in August that the Criminal Procedure Amendment Bill was withdrawn from Parliament on 24 January 2019, to enable the department to prepare a single Amendment Bill dealing with proposed amendments to Section 18 of the Criminal Procedure Act, 1977, and Section 12 of the Prescription Act, 1969. “The bill is in the process of being finalised,” he added.

Minimum sentences

The Criminal Law Amendment Act 105 of 1997 compels courts to impose minimum sentences for certain crimes, unless compelling circumstances justify a lesser sentence.

The Act sets the prescribed minimum sentence of life imprisonment for crimes related to aggravated murder, aggravated rape and aggravated compelled rape.

Aggravated rape refers to particularly brutal rapes where, for example, the victim is raped more than once; while compelled rape means forcing someone else to rape a victim.

First-time rape offenders (without aggravating factors) will receive a minimum sentence of 10 years, second offenders will receive a minimum of 15 years and third offenders a minimum of 25 years.

The Criminal Law Sexual Offences and Related Matters Amendment Act further protects victims of GBV, outlining a variety of crimes related to sexual abuse.

According to the latest annual crime statistics released in September 2018, 50 108 sexual offences were recorded by the police in 2017/18, which was up from 49 660 in 2016/17. The majority of the sexual offences recorded were rapes, followed by sexual assaults.

When the case against Van der Merwe and Claudine Shiels’ alleged abusers came before the court in August is was postponed because one of the accused was in hospital and could not appear in court.

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