Eight brave people who survived being abused by a paedophile who is now dead have opened the doors to all sex offenders being charged – even if their crimes were committed decades in the past. Ufrieda Ho reports.
By early Monday morning, Nicole Levenstein had been up for hours. She’s waiting to hear about a landmark ruling in the Johannesburg High Court that has the power to change sections of the Criminal Procedures Act.
Levenstein, who now lives in Israel, is one of the “Frankel Eight” who, three years ago, brought a civil and criminal case against Sidney Frankel for rape and sexual abuse.
The eight include Levenstein’s brother and the daughter of a woman who worked for Frankel for 30 years. They say the abuse took place when they were children, between 30 and 40 years ago.
Frankel, a one-time billionaire stockbroker and well-connected socialite, denied the allegations.
With his lawyer Billy Gundelfinger, he managed to avoid setting foot in court.
But the criminal case against Frankel seemed dead from the start: the 20-year limit for prosecution had to be challenged and the courts would have to find section 18 of the act unconstitutional.
A little before noon on Monday, Levenstein receives the news she’s desperate to hear: the court’s ruling is a victory for the eight, and for activists from the Women’s Legal Centre, the Teddy Bear Clinic and Lawyers for Human Rights, who have been friends of the court.
They argued for the prescription on prosecution to be scrapped for all sexual offences, not just rape, and for this legal remedy to be available to all victims regardless of their age.
The court’s decision clears a legal roadblock that will enable sexual offence victims to seek criminal prosecution, regardless of how long ago they were abused. Lifting the prescription means the courts recognise there is no time frame to trauma and that, as Advocate Bronwyn Pithey of the Women’s Legal Centre argued, there are numerous factors that keep abuse victims from speaking out, even for decades.
“Our argument was for the courts to see this from the victim’s perspective, not the legal perspective that ignores the lived reality of victims,” says Pithey.
Levenstein is overjoyed even as she knows the green light came too late for her and the others – Frankel died of cancer in April.
“I am sad that he died before we got our day in court. But we always knew we were doing this for generations to come; for other children who have been victims of abuse,” says the mother of two.
Monday’s ruling will still have to be rubber-stamped by the Constitutional Court – a process that will most likely begin in November, but Levenstein says the conversation has already shifted.
“Victims can now feel safer to speak out, even decades later, and know they have the backing of the law,” she says. “With this ruling, it feels like we’ve done something with real purpose; that this legal fight has truly mattered.”
The eight applicants’ lawyer, Ian Levitt, says: “It’s the kind of thing that made me go to law school in the first place – the idea that you can change a law for good.
“If this ruling saves just one child from one perpetrator who will think twice about his actions ... it will have been worth it.”
Levitt says they will continue with the civil case against Frankel’s estate, from which they are claiming a minimum of R5m in damages for each applicant.
The case will head to court in the middle of next year.