Believed Consent No Longer A Defense For Sexual Assault
Arisha Rajaram
Sexual Offences Act declared unconstitutional
A groundbreaking ruling by the Pretoria High Court, which declared certain sections of the Sexual Offences Act unconstitutional, offers new hope for victims of gender-based violence (GBV) in South Africa.
The argument that subjective consent (believing the victim game consent by not expressly or physically denying the act), was found invalid.
Facts:
In 2022, a case was brought before the High Court to challenge the way South African law defines consent in sexual offence cases. Their aim was to strengthen legal protections for survivors of GBV.
The Applicant, who was 20 years old when the incident occurred in June 2018, reported being raped by a man she met online and arranged to meet in person. During their meeting, he engaged in sex with her without her consent. Despite the Applicants testimony in February 2019, the accused was acquitted a month later on the grounds that the court could not establish that the man knew he did not have consent.
Sections of the Sexual Offences Act Declared Unconstitutional
However, the Pretoria High Court ruled that several parts of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (Sexual Offences Act) are unconstitutional. The decision is still awaiting confirmation from the Constitutional Court, and mandates that those accused of sexual offences must take “objectively reasonable steps” to ensure the complainant’s consent. This shift from a subjective to an objective test for consent offers greater protection to survivors.
Legal Reform to Address Consent and Victim Protection
The Applicant argued that current laws were too lenient when it came to those claiming to believe there was consent. They pointed out flaws in the Sexual Offences Act, which they believe fails to adequately address the complexities of sexual violence.
They argued further that victims experience peritraumatic responses to sexual assault which can happen during or immediately after the rape incident. During sexual assault, survivors may experience feelings of fear, paralysis, numbness and detachment, including passivity and extreme immobilisation.
While survivors of sexual assault may resist the perpetrator, a substantial number do not, and this can be explained by several complex factors that affect how individuals communicate their willingness or unwillingness to participate in a sexual act or to withdraw consent either verbally or non-verbally.
Overall, the applicants argued that the act is unconstitutional and invalid as it fails to accommodate the possibility of an objective test for fault when it comes to sexual offences.
The judgment also eliminates the defense that an accused person could rely on an unreasonable belief in consent.
Changing the Narrative on Consent
In many instances, defense lawyers argue that “passive consent” was given—that if the victim didn’t resist, the accused assumed consent. This recent ruling challenges that assumption and changes the legal landscape significantly.
The Centre for Applied Legal Studies urged the court to go further and remove consent as a factor in determining guilt in sexual offence cases. While the court rejected their application, it acknowledged the need for further reforms to the Sexual Offences Act.
Court Ruling
The Court held that the correct position is that there is no reverse onus, and the onus remains where it belongs, namely on the state to prove its case beyond reasonable doubt. All the suggested amendment to the law seeks to suggest is a test that will require a perpetrator to explain the objective steps he took to establish the presence or absence of consent prior to the alleged rape.
Further, balancing the interests of the victim and the rights of the accused to a fair trial will not be prejudiced in a prosecution if the required standard changes to an objective test rather than a subjective one.
The Court ordered those sections 3, 4, 5, 6, 7, 8, 9, read with section 1(2) of the Sexual Offences Act are declared unconstitutional, invalid and inconsistent with the constitution to the extent these provisions do not criminalise sexual violence where the perpetrator wrongly and unreasonably believed the complainant was consenting to the conduct in question.
Further, South Africa will adopt the objective test and require the accused to take reasonable steps to ensure and prove that consent was attained.
Despite the progress, challenges remain. Victims still face the burden of proving that there was no consent, which can be difficult in many cases.
Article Disclaimer
This article is not intended to provide legal advice. This article is a general information sheet and should not be used or relied on as legal or other professional advice. This article is based on research regarding laws and may be subject to change. No liability can be accepted for any errors or omissions nor any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).
