Righting a universal wrong

IAN LEVITT

I knew then, at the very first consultation, that I wanted to help. I had to help.

When I was first approached to act, and was told in graphic detail what the late Sidney Frankel had allegedly done to little children, I became incredibly angry. How could a human being hurt an innocent child – and under the nose of her parents, Frankel’s best friends? What drives a person to be so evil?

I offered the services of my firm pro bono, and we started to work. The fact that the crimes were allegedly committed decades ago posed a major legal problem. There would be a bar to instituting both a civil case and a criminal prosecution.

Would this case end as quickly as it began? Not a chance. I spoke to two eminent senior counsel, Advocate Anton Katz SC, who would assist on the constitutional side, and Advocate Laurence Hodes SC, who would assist on the criminal and civil side. Both offered their services pro bono. Subsequently Advocate Leigh Franck also joined this team. Angelike Charalambous and Sadiyah Samrod of my firm were brought in to complete the team. Frankel, bring it on!

Section 18 of the Criminal Procedure Act differentiated between rape and other forms of sexual assault. While rape can be prosecuted at any time, sexual assault (often labelled as sexual abuse) could be prosecuted only if a charge was laid within 20 years from the date that the crime occurred. This was the case irrespective of whether the complainant had proof of the crime, even an admission from the suspect, or an acknowledgment by his wife that it had happened.

This did not seem logical.

My initial instructions in this matter were to press ahead with criminal charges. They wanted Frankel exposed for what he allegedly was. But, because at that stage there was no criminal avenue open to the so-called “Frankel 8”, a summons was prepared.

As the matter gained publicity, more survivors contacted me. The Frankel 8 decided to press ahead, not knowing what they would encounter personally, legally or publicly. Every survivor’s history of alleged abuse by Frankel was different, although much of the time, the same modus operandi was employed by him in isolating the children. When each survivor told me their story for the first time, I literally saw the darkness and pain in their eyes. It strengthened my determination to find a solution.

Law can be a mechanism for societal change and, armed with Katz’s advice, I believed I had to challenge Section 18 of the Constitution if justice was to prevail. To challenge the 20-year prescription period, criminal charges had to be laid first. The National Prosecuting Authority declined to prosecute.

Driven by a strong, supportive team, and determined to pursue justice, the Frankel 8 applied for direct access to the Constitutional Court. Direct access was refused. This meant we had to go the long route, via the High Court first, even if Frankel passed away before the Frankel 8 were able to prosecute him.

In May 2017, the Frankel 8 approached the High Court, and were successful in their application. Section 18 of the Criminal Procedure Act was declared unconstitutional by Acting Judge Clare Hartford.

In a ground-breaking judgement, Judge Hartford held: “The law must encourage the prosecution of these nefarious offences, which are a cancer in South African society, and must support victims in coming forward, no matter how late in the day. The law should not smother a victim’s ability to bring sexual offenders to book, as it presently does. Victims should not be hushed by Section 18 of the CPA.”

An application was then launched to the Constitutional Court, and argument was heard in November 2017. In a unanimous judgement, the Constitutional Court confirmed that Section 18 of the Act was constitutionally invalid as it was irrational and arbitrary. The effect of the judgement is that there is no longer a distinction between rape and sexual abuse victims.

The Frankel 8, together with our legal team, changed the law on sexual assault. The Constitutional Court lifted the 20-year time bar within which victims of sexual assault had to report the assault. In delivering its judgement, the Court stated: “Although rape is the most reprehensible form of sexual assault, other forms of sexual abuse also constitute a humiliating, degrading, and brutal invasion of the dignity and the person of the survivor. Sexual abuse in all forms, not only rape, infringes the survivor’s right to bodily and psychological integrity.”

The Talmud teaches us that destroying a soul is like destroying an entire world. And, saving a life is like saving an entire world. This resounding judgement has not just changed the life of eight people, but millions of sexual assault victims’ lives. Paedophiles now have no window to crawl out of to escape prosecution. As long as they live, they will be at risk of being imprisoned for their heinous acts.

This is just the beginning. I am setting up a small yet dedicated team that will assist on a pro bono basis, to the extent that it is possible, with the criminal prosecution of any person that has perpetrated a sexual crime against a child. Let their silence find in me a voice.

• Ian Levitt is the attorney who represented the Frankel 8 in this case.