Levenstein in light of #MeToo and Epstein

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In the United States, Jeffrey Epstein is accused of terrible crimes. Epstein, an American financier, is alleged to have constructed a ‘child sex pyramid’ and sex-trafficking ring in the early 2000s. 

His modus operandi, according to FBI investigations and eyewitness accounts, was to pay girls as young as 14 to perform sexual acts at his mansion in Palm Beach, Florida. He would then pay these young girls more money if they could recruit other underage girls to do the same. By around 2006, Epstein is accused of creating an intricate, international network of child sex-trafficking that involved untold numbers of victims and accomplices.

In 2005 Epstein was reported to the police in Palm Beach by the parents of a girl who alleged that she had been molested by Epstein. Police and FBI investigations ensued. These investigations soon discovered that Epstein had allegedly molested dozens of victims. The normal criminal process should then have followed: Epstein should have been arrested, tried and if convicted sentenced for these accusations. But this was not to be. In October 2007, Alexander Acosta, then Florida’s top federal prosecutor, effectively made a deal with Epstein’s lawyers. The deal was simple: Epstein would go to jail for 13 months in a plushy county jail for soliciting prostitution. Everything else, including the FBI investigations, would be forgotten. Epstein, along with unnamed accomplices, was given prosecutorial immunity for the horrific crimes of which he was accused.

Acosta’s deal has drawn widespread criticism. The Miami Herald published a comprehensive, investigative piece late last year exposing the accusations against Epstein and Acosta’s role in granting him prosecutorial immunity. Since then, quite rightly, against the backdrop of growing protest against sexual harassment and movements like #MeToo, Acosta has come under immense scrutiny. So much so that on Friday, 12 July 2019, Acosta resigned from his position as Secretary of Labour in President Trump’s Cabinet. Speaking at a press conference, Acosta explained that the Epstein controversy was distracting from his work as Secretary of Labour. When asked whether he had any regrets about the Epstein deal, and whether he would have agreed to it today given how attitudes towards sexual offences are changing, Acosta replied: “We now have 12 years of knowledge and hindsight and we live in a very different world. Today’s world treats victims very, very differently”.

Acosta’s statement may not be entirely accurate. Unfortunately, there are many places in today’s world where survivors of sexual offences are not treated any differently from how the survivors of Epstein’s alleged offences were treated. The Epstein saga and Acosta’s comments nonetheless spark an important question: how does South Africa treat sexual offence survivors?

A great deal has been written on the numerous failures of the South African criminal justice system in prosecuting sexual offences. But roughly a year ago, the Constitutional Court handed down a judgment demonstrating how South Africa, in many ways, is light years ahead in how it in theory deals with survivors of sexual offences.

In Levenstein, the Constitutional Court was faced with an issue concerning the prosecution of sexual offences. The Criminal Procedure Act provided that prosecution of a sexual offence other than rape had to be instituted within 20 years of the alleged offence. This posed a problem for the eight applicants, who had all allegedly been sexually assaulted by Mr Sydney Frankel. The alleged sexual offences took place between 1970 and 1989 when the applicants were children. 

This meant that the prosecution for these offences should have been instituted between 1998 and 2011. But the applicants only approached the National Prosecuting Authority between June 2012 and June 2015. Before then, the survivors did not have a full appreciation of the nature and extent of the criminal acts allegedly perpetrated on them by Frankel. They only acquired full appreciation of the nature of these criminal acts, allegedly committed, after the 20 year period expired. When they approached the National Prosecuting Authority, it declined, as it was bound to, to prosecute Mr Frankel because of this 20 year period expiring

The survivors approached the Constitutional Court, arguing that the rule in the Criminal Procedure Act was irrational, and violated their right to dignity. The Act provided that prosecution for rape never had a time bar, while other sexual offences must be prosecuted before 20 years pass. Rape is defined to include all forms of sexual penetration, whereas a sexual offence is a broader category of sexual conduct that is not necessary penetrative. Why, the applicants asked, should rape be exempt from the time bar and not other sexual offences?

The Constitutional Court unani-mously found in the applicants’ favour. The Court’s reasoning was underpinned by a nuanced appreciation of the impact sexual offences have on survivors and the importance of providing a criminal justice system that is sensitive to that impact. The Court did not mince its words:

“In these circumstances the use of prescriptive periods in section 18 as a basis to distinguish between rape or compelled rape and other forms of sexual assault when the harm they all cause to their survivors is similar, is irrational… The section, by over-emphasising the significance of the nature of the criminal act at the expense of the harm that it produces to the survivors, fails to serve as a tool to protect and advance the interests of survivors of sexual assault. It works against their interests instead of promoting them. The criminal justice system should play a role that supports the survivors of crimes involving sexual violence and create mechanisms that would encourage them to come forward more so in view of the fact that such crimes have become prevalent these days.”

The Court emphasised:

“The evidence before us reveals what countless women and children face. It illuminates the systemic failures that enable violence and exploitation of them to occur… to think of sexual violence as merely unwanted sexual conduct is to miss the point. Rather, it is ‘by its very nature… intentionally designed to produce psychological trauma’.

Of pivotal importance to the case before us is this: that the systemic sexual exploitation of woman and children depends on secrecy, fear and shame. Too often, survivors are stifled by fear of their abusers and the possible responses from their communities if they disclose that they had been sexually assaulted. This is exacerbated by the fact that the sexual perpetrator, as the applicants allege Mr Frankel to have been, is in a position of authority and power over them. They are threatened and shamed into silence. These characteristics of sexual violence often make it feel and seem impossible for victims to report what happened to friends and loved ones — let alone state officials. Combined with this is the frequent impact of deeply-located self-blame, which… disables the victim from appreciating that a crime has been committed against her for which the perpetrator, and not she, is responsible.”

The Court thus acknowledged the pernicious nature of sexual offences and the accompanying trauma for a survivor of sexual assault. The harrowing experience of being sexually assaulted implies that there are numerous reasons why adult survivors choose to report the sexual offence against them after a long period of time. Personal circumstances of the survivor may change; with time comes maturity and an ability to process the trauma suffered as a result of the violence. The survivor may seek out psychological help, such as counselling, which empowers her to enter the criminal justice system. 

The Court accepted that survivors develop resilience over time, and together with resolution of the trauma are able to report the matter to the police or the survivor may change communities with which she engages which may be more accepting of women who are sexually abused. She may have a supportive partner later on in life who believes her and supports and encourages her to report to the police. Someone else may report a sexual offence committed by the same perpetrator which may give the survivor courage to report. The Court explained that this trauma and the manner in which it is processed by survivors “mean that the decision not to disclose or report, for any length of time, cannot determine the question of guilt or innocence in the case against the perpetrator.” Accordingly, the section in the Act was declared unconstitutional.

In a world where survivors of sexual offences are constantly misunderstood, shamed, marginalised and abused, including by prosecutorial and judicial systems, the Constitutional Court has demonstrated that empathy, consideration and consciousness of the realities of survivors of sexual offences can and should inform how the law is interpreted and implemented. The judgment of Levenstein stands in contrast to the Epstein deal Acosta coordinated. 

The latter went a long way to ensure that justice is not done for the alleged victims of Epstein’s offences. Levenstein, on the other hand, opened a door for survivors to seek judicial recourse and justice. By no means is the road to prosecuting sexual offences properly and justly clear; but one serious hurdle has been moved out of the way.

This article was first published in the Daily Maverick on 15 July 2019 under the title The US’s Epstein saga sparks an important question: how does SA treat sexual offence survivors? And is reproduced with permission.

Anton Katz SC is a practising senior advocate in Cape Town and Ian Levitt is an attorney practising in Johannesburg at Ian Levitt Attorneys. Levitt instructed Katz on behalf of the Levenstein 8 in the Constitutional Court.

Editor’s note: Epstein, who was arrested in July for the alleged sex trafficking of minors, died at the Metropolitan Correctional Center, located in downtown New York City on Saturday 10 August. Epstein’s death comes a day after unsealed documents in New York revealed the extent of his abuse of young women at his home in Palm Beach, New York and the Virgin Islands.

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