n Acta Juridica - Removing the prescription blindfold in cases of childhood sexual abuse

Abstract

Recently the horror of child sexual abuse has received extensive media coverage in South Africa. Some experts have referred to the incidence of child sexual abuse as being high enough to be seen as a war upon our children. Whilst it is impossible to describe the exact physical and emotional wounds that children who have been violated are left to deal with, it is common cause that sexual abuse causes immense physical and emotional pain at the time of the assault. It also leaves scars that linger in children's lives in a multitude of ways, threatening their physical and emotional well being and development, their sense of self and their right to health, happiness and a life free from all forms of violence. These scars often persist well into adulthood.

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Sexual abuse clearly constitutes a violation of children's rights resulting in an obligation on the part of the state to ensure that effective and appropriate steps are taken to address the problem. The focus in recent years has been to get children to speak out against abuse, thereby increasing rates of reporting and criminal action against perpetrators. This article will not consider the criminal avenues open to survivors of child sexual abuse, but rather the manner in which the law governing civil actions and prescription has evolved so as to protect survivors of childhood abuse. Previously prescription laws largely 'conspired' with perpetrators by silencing survivors of childhood sexual abuse. While a survivor has the right to institute criminal proceedings in most cases of sexual abuse, the survivor may prefer to institute action civilly. In civil cases the survivor has more control over the conduct of the case and a lower burden of proof is applicable. However, in these cases prescription problems often arise because survivors tend to remain silent and may not pursue action until well beyond the age of majority. As a result the survivors may be time-barred and prevented from holding the perpetrator liable since the law requires a survivor to institute action within three years of attaining majority. A rigid application of prescription laws therefore limits the right of survivors to access to courts, as well as their rights to equality, dignity and freedom and security of the person.

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In this article I focus on the current approach to childhood sexual abuse and prescription laws in South Africa in the context of a recent Supreme Court of Appeal ruling. I start by setting out the rationale for prescription and the constitutional framework within which prescription needs to be considered. I then deal with the first case in South Africa in which the Supreme Court of Appeal has had to apply prescription in the context of childhood sexual abuse and go on to analyse what this means for future cases, particularly in relation to the test to be applied by courts. In the latter regard case law in Canada, New Zealand and the USA is considered for the impact that it may have in future cases.