A study on the limitations of prescription in cases of rape, defilement and sexual assault in Maltese criminal law

Abstract

The element of prescription has been an aspect of great importance in criminal procedure, having the objective of protecting the accused from having a case filed against him a long time after the alleged completion of the crime. The study explores the psychological effects left on the survivors of crimes such as rape, defilement and sexual assault, especially in cases where the survivors were children at the time of the commission of the crime. It analyses the current domestic law, and the application of prescription in the relevant cases, and provides a comparison with the law of numerous countries forming part of the European Union, as well as countries such as the Unites States of America, South Africa and Japan. It highlights the different prescription periods applicable to the same criminal actions in the different jurisdictions. The research focuses on the legal and psychological aspects relative to the potential causes which delay reporting, and the concurrent application of prescription. The common effects of the aforementioned crimes including shame, confusion, and lack of trust are discussed in detail, together with the right to a fair and efficient trial1, as a right enjoyed by the accused. In addition, the importance of maintaining equilibrium between the rights of the accused and those of the alleged survivor is given top priority. The result of the research reveals an overwhelming need to introduce and provide a higher quality of education to children starting from young ages, and to revise the current state of domestic law with regards to the prescription applicable to the crimes of rape, defilement and sexual assault. Any potential amendments could be made by looking at the applicable laws which are currently in place in numerous foreign jurisdictions, and striving to reach the unofficial standard, where legislators take into account the mental state the victim is in, when calculating the length of prescription and the age when it starts to run. Lastly, legislators should strive to carry out further research and investigate individual cases, with the objective of determining the true requirements and needs held by both parties, to be able to draft a more efficient, fair and just law.