NGO challenges legal framing of sexual consent
A nonprofit organisation (NGO) is challenging the legal definition of sexual consent, saying it will further victimise assault victims.
The Embrace Project is leading the charge, saying 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 calls 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 illustrates the problem. In the Eastern Cape in 2022, the high court overturned the rape conviction of a man initially found to have assaulted his girlfriend. Despite finding she had explicitly not consented, the court held that the prosecution had not discharged its burden. It had not disproved the accused’s statement that he genuinely believed she had given tacit consent. He was acquitted.
Rape myths are common in SA and the law perpetuates these in legal forums, says the NGO. As it stands, the law tells “women and children ‘don’t get raped’ instead of telling men and boys ‘don’t rape’”, it says.
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 justice department has argued that should the NGO succeed in court, it would “place the burden of proof on the accused”.
The department agreed 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 the NGO’s characterisation of the law regarding subjective consent. It argued 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 that 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”, it said.
The department itself disagreed with the judgments cited by the NGO, thus also disagreeing the acquittals are the law’s fault, rather than the reasoning of the courts. The department said there was a distinction between women and children in the law, since children “may not have the capacity or maturity to discern the consequences of their actions”.
The department, in its papers, concluded: “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 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”.
The applicants filed papers in November 2022 and the minister responded on March 16. A date is yet to be set for the case to be heard.