A nonprofit organisation is challenging the legal definition of sexual consent, saying it will further victimise assault victims.
The Embrace Project is leading the charge maintaining that the law as it stands allows for those accused to say they subjectively believed a victim consented, even when, objectively, the victim did not.
Should this be allowed to continue in our law, prosecution of sexual offences would become “insurmountable” and sexual assault survivors would be “further victimised”.
The NGO terms this the creation of “a defence of unreasonable belief in consent”. The project points to international and foreign law which replaced this purely subjective belief in consent, with a defence of reasonable belief in consent.
It has highlighted recent SA case law that illustrated the problem. In the Eastern Cape in 2022, the high court overturned the rape conviction of a man initially found to have assaulted his then girlfriend. Despite finding she had explicitly not consented, the court held the prosecution had not discharged its burden. It had not disproved the accused’ statement that he genuinely believed she had given tacit consent. He was acquitted.
Rape myths are common in SA and the law, says Embrace Project, perpetuates these in legal forums. As it stands, the law tells “women and children ‘don't get raped’ instead of telling men and boys ‘don't rape’”, says the NGO.
Negligence is criminalised in other contexts, such as homicide and driving. So why would it be radical to include it with something as destructive as sexual assault, the NGO asks.
In response, the Department of Justice argues that should the NGO succeed in court, it would “place the burden of proof on the accused”.
The department agrees with the project’s concern and its own obligation in combating gender-based violence. It noted its own appeal of the Eastern Cape judgment the project cited.
The department took issue with Embrace Project’s characterisation of the law regarding subjective consent. It argues that an accused who “has an unreasonable belief that the complainant consented when she had not would have been at least reckless”, forming a basis for legal definitions of intent.
The department also denied the definition prevents conviction. The subjective belief of an accused is “an important element of consent-based crimes in our law”, but is not the only part of prosecution. A court must “have regard to the full spectrum of the evidence presented” and “is not limited by the subjective test”.
The department itself disagreed with the judgments cited by the project, thus also disagreeing the acquittals are the legislation’s fault, rather than the reasoning of the courts.
The department notes there is a distinction between women and children in the legislation, since children “may not have the capacity or maturity to discern the consequences of their actions”.
The department, in its papers, concludes: “The applicants are only driven by their ego [sic] towards men and they are using their emotions to persuade the court to declare unconstitutional an act which is in line with the constitution.”
Papers and research presented by both sides said the majority of victims were women and children.
The Centre for Applied Legal Studies (CALS) has sought to join the case. Sheena Swemmer, head of Gender Justice at CALS, says the “process puts victims and survivors on trial, expecting them to demonstrate how well they resisted the accused, buying into harmful rape myths and stereotypes”.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.