By Anton Katz
The fact that the sexual assault allegations by Professor Ford against Judge Kavanagh relate to events occurring more than thirty years ago raises systemic issues all over the world.
The South African Constitutional Court judgement in Levenstein v Estate Frankel in June 2018 touched upon key aspects of the Ford/Kavanagh saga. That is the delay in reporting sexual assault crimes. The late Sydney Frankel of Johannesburg was accused by a number of adults of having sexually assaulted them when they were children. But the accusations were only made many years after the commission of the alleged crimes. The evidence included numerous and reputed scientific studies demonstrating that there is nothing exceptional or irregular about Professor Ford’s and indeed all survivors of sexual assault reporting of the events so many years later.
The South African Court was faced with a challenge to legislation dealing with the time barring of certain types of criminal prosecution: a group of survivors of sexual assault as minors attacked the constitutionality of legislation which distinguished between rape on the one hand, and sexual assault on the other. There was no statute of limitations (prescription) for rape, but for other crimes there was a twenty year period. So, if Professor Ford had alleged that Judge Kavanagh had raped (non-consensual penetration) her in the 1980s her criminal complaint would have had to be investigated. But if, as was the case, she complained of a sexual assault, then after twenty years a prosecution in South Africa would have been barred.
The Constitutional Court declared the prescription law invalid on the basis that it was irrational to distinguish between rape and other sexual crimes for purposes of the time bar. There should be no time bar for sexual crimes at all the Court held. The Court’s reasoning is interesting. It emphasised that: “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 infringes the survivor’s right to bodily and psychological integrity. The prescription period of 20 years is insufficiently cognisant of the nature and process of sexual assault disclosure.
There are numerous reasons why adult survivors choose to report a sexual offence against them after a long period of time. Personal circumstances of the survivor change; with time comes an ability to process the trauma suffered as a result of the violence. She may seek out psychological help which empowers her to report the criminal conduct. 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 encourages her to report the attack. Someone else may report a sexual offence committed by the same perpetrator which may give the survivor courage to report.
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. 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 he or she, is responsible.
These features of survival of sexual trauma make it rational to be reluctant to report and to avoid reporting. And this is before considering the effect of rape trauma syndrome — the now recognised patterns of emotional, physical, cognitive and behavioural disturbances that approximately one in three survivors of sexual assault develop. Even if a survivor is fully aware of the abuse, he or she naturally weighs up the possibility of reprisals from the perpetrator together with the possible lack of support from the police and the statistically small eventuality that reporting will actually, result in a conviction.
The evidence before the Frankel Court demonstrated that only one in three rape survivors seek assistance from formal social systems.
Delayed reporting of criminal activity does not make things easy for any one. The alleged perpetrator, the survivor, and society are all at some disadvantage. But when persons question why a survivor took so long to come forward with serious allegations it is necessary to accept that it is the norm to take some time, even many years, to report the traumatic event.