« Plea deal convicts priest of abuse | Main | Social agencies sued in death of Baltimore teen »
September 01, 2004
Landmark case could change application of law
Estelle Ellis -- September 01 2004 at 08:10AM -- www.iol.co.za
In a watershed application, the Supreme Court of Appeal has been asked to lift time bars on claims filed by adult survivors of child sexual abuse.
The application is the latest chapter in the brave fight of Esmé van Zijl, who was raped, sodomised and indecently assaulted more than 40 years ago.
At the heart of her battle are efforts to get legal recognition of a well-known psychological phenomenon that adult survivors of child abuse sometimes take a long time to recognise that what they had suffered was not their fault.
Recognising this would bring South Africa on a par with the United States, Australia, New Zealand and Canada in the recognition of the rights of adult survivors of child abuse.
Van Zijl, 51, wants to sue a relative, who is a retired businessman. She claims that she was sexually abused, raped and sodomised by him between 1958 and 1965, starting when she was six years old.
In terms of the law, she should either have sued him within three years of the date that he first abused her, or in 1973, the year she turned 21. But Van Zijl became aware of the effect of abuse on her psyche, personality and ability to function as a person only in 1997.
Specialist psychologist Linzi Fredman told the court that it could take the survivors of child abuse a very long time to realise that what had happened was not their fault.
The court will have to decide if interpreting the Prescription Act in the light of the constitution means that those survivors of childhood sexual abuse who discover the consequences and extent of the abuse only later in life should not be time-barred.
Van Zijl's legal team argued that the courts cannot treat sexual abuse cases as equivalent to other damages cases where a three-year time bar would apply. The court heard that there was growing international consensus that the phenomenon of childhood sexual abuse justified special consideration.
"The ineffectiveness of the justice system in addressing childhood sexual abuse and its effects intensifies the powerlessness and helplessness of survivors of child sexual abuse," said Van Zijl's attorney, Nicky Naylor, from the Women's Legal Centre in Cape Town.
"It also sends an unmistakable message that the daily trauma of the vast number of children subjected to sexual abuse counts for very little.
"The law cannot conspire with perpetrators by preventing survivors from claiming damages later in life," Naylor said.
"We hope the court (will recognise) it is the abuse itself that often prevents a survivor from taking action," attorney Michelle O'Sullivan said.
The court reserved judgment.
Posted by Nealus at September 1, 2004 10:40 AM
Comments
Post a comment
Thanks for signing in, . Now you can comment. (sign out)
(If you haven't left a comment here before, you may need to be approved by the site owner before your comment will appear. Until then, it won't appear on the entry. Thanks for waiting.)
