Cape Town - Organisation combating gender-based violence and femicide, The Embrace Project, has won its constitutional challenge over the Sexual Offence Act, as it relates to problematic definitions of consent and rape.
The Gauteng High Court, Pretoria, declared sections 3 to 9 and 11A of the Criminal Law (Sexual Offences and Related Matters) unconstitutional, invalid and inconsistent with the Constitution “to the extent that these provisions do not criminalise sexual violence where the perpetrator wrongly and unreasonably believed that the complainant was consenting to the conduct in question, alternatively, to the extent that the provisions permit a defence against a charge of sexual violence where there is reasonable objective believe in consent.”
The litigation by the The Embrace Project, a GBV survivor, and the Centre for Applied Legal Studies, was instituted towards the tail end of 2022, with respondents cited as the Department of Justice and Correctional Services; Minister in the Presidency for Women, Youth and Persons with Disabilities; and the President, respectively.
The Embrace Project director and co-founder, Lee-Anne Germanos, said the judgment has the effect of potentially significantly improving conviction rates of sexual offences.
“The most commonly used defence is that saying that the complainant did not tell them to stop (whatever sexual conduct they were doing). Or that the complainant appeared to be enjoying it. But the most common is that they were not told to stop so they thought they had consent,” Germanos said.
“It has removed the ability of persons accused of sexual violence to rely on a subjective belief that consent was given by a complainant.
“Going forward, subject to confirmation by the Constitutional Court, for the first time in South Africa's history, a person accused of sexual violence will have to take ‘objectively reasonable steps to ascertain that the complainant consented to sexual conduct in question’.”
In his judgment, Judge Selby Baqwa said: “By enabling a defence of unreasonable belief in consent, the Act violates the rights of victims and survivors to equality, dignity, bodily and psychological integrity, and freedom and security of the person which includes the right to be free from all forms of violence and the right not to be treated in a cruel, inhumane or degrading way.”