Trigger warning: This article makes mention of rape and sexual offences.

A South African nonprofit has launched a constitutional challenge against the definitions of rape and consent in the Criminal Law (Sexual Offences and Related Matters) Act, with the intention of ensuring better access to justice for victims and survivors of rape.

The Embrace Project, an organisation that aims to combat gender-based violence (GBV) in South Africa, is the first applicant in the case, launched out of the Pretoria high court on 25 November. The notice of motion names the Minister of Justice and Correctional Services, the Minister In The Presidency For Women, Youth And Persons With Disabilities, and the President as respondents.

“For us, there’s two main reasons [for the constitutional challenge]. One, the scourge of GBV is completely out of control, and we’re hoping that this can assist with enabling access to justice for victims and survivors, and in turn, we are also hoping that this will prompt further discussions around what consent means,” said Tina Power, the attorney of record representing the applicants in the case.

A notice of intention to oppose the constitutional challenge was filed on behalf of the Minister of Justice and Correctional Services on 1 December.

The Sexual Offences Act currently defines rape as a situation in which a person “unlawfully and intentionally commits an act of sexual penetration with a complainant (‘B’), without the consent of B”.

The problem with this definition, according to the Embrace Project, is that it means it is not enough to prove in court that a person accused of rape committed an act of sexual penetration without the victim’s consent. It is also necessary to prove that the accused, in their own subjective state of mind, intended to rape the complainant.

Power pointed out that in South Africa, where a culture of disrespecting women’s bodies and sexual autonomy is prevalent, this can allow an accused to claim they thought they had consent because, for example, the victim didn’t fight back; was silent; engaged in other sexual activities with the accused before the rape; or was in a relationship with the accused.

“The significance of it is that it actually helps to reinforce… these harmful patriarchal beliefs and the male sexual entitlement that already exists in South Africa,” said Lee-Anne Germanos, co-founder and co-director of the Embrace Project.

“The way legislation stands currently, the more perverse your views are on consent as a perpetrator, the higher the chances of you getting acquitted, because it’s harder to prove that you thought that you were raping someone.”

The Embrace Project initially wrote to President Cyril Ramaphosa in October 2021 and “highlighted the issue of the application of intent in the definition of rape”, according to a press release by the organisation. At the time, proposed amendments to the Sexual Offences Act that did not address the problematic definitions were soon to be signed into law.

However, the letter received no response, and Ramaphosa signed the amendment bill into law in January 2022.

The constitutional challenge launched by the Embrace Project seeks to have those sections of the Sexual Offences Act that rely on the current definitions of rape and consent declared constitutionally invalid. The organisation is further requesting an order giving Parliament 12 months to remedy the constitutional defects in the legislation.

Maverick Citizen reached out to the Department of Justice and Constitutional Development about the issues raised by the Embrace Project, and how the department intended to address them.

Chrispin Phiri, spokesperson for the department, said: “We are busy looking into the merits of the constitutional challenge with a view to formulating an answer from the department to the court challenge.

“In light of all that, we do not yet have a view. We will have a view once we have taken the necessary advice.”

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Proving intent

The Embrace Project first became aware of the problematic aspects of the Sexual Offences Act in August 2021, when a rape survivor — now the second applicant in the constitutional challenge — approached the organisation about her own experience.

In the judgement handed down for the second applicant’s rape case, which was included with the founding affidavit for the constitutional challenge, the following information was put forward:

• The complainant and the accused met for the first time on the night of the alleged rape, having met on Tinder and communicated on electronic media prior to that;
• The accused invited her to his house for a party, but when she arrived, there was no one but him there, and no one else arrived while she was there;
• She did not object to him kissing her, but did indicate that she did not consent to him touching her breast; and
• She told the court she said no when he made efforts to sexually penetrate her, but could not confirm whether he had heard her.

A medical examination was conducted after she reported the alleged rape to her mother the next day. According to the judgement, the doctor who examined her testified in court that “one would not expect to see so many injuries present where sexual intercourse was by consent as the sexual intercourse would normally be stopped… as it would be too painful to proceed”. However, the doctor could not exclude the possibility of consensual intercourse.

The accused claimed that the complainant consented to the sexual penetration, and he accepted that she consented because “there was mutual interaction and reaction by both parties” and “[she] never indicated verbally or physically for him to stop”.

In the judgement, the evidence provided by the accused was described as unreliable, as he kept adding to his version of events and changed the sequence of events several times. He “came across as arrogant and entitled” and attempted to exonerate himself by blaming the complainant for not doing more.

The final part of the judgement stated: 

“The court is convinced that if consent had to be evaluated objectively in this case, the reasonable man in the same position as the accused would not have assumed or accepted in [these] circumstances that he had consent and would have done more to ensure that consent was indeed present. Due to the fact that the test for unlawfulness is indeed an objective one, the court is satisfied that the evidence proves the element of unlawfulness beyond reasonable doubt.

“Rape can, however, only be committed intentionally. The test to establish if the accused acted within intent is a purely subjective one. The mindset of the accused at the time of the act is, therefore, the test.

“In our law and the reported case law that I am bound to follow, the belief that a woman consented to sexual intercourse need not be a reasonable one as the test to establish intent is a purely subjective one. The fact that the complainant did not signify her opposition to the acts in any way makes it impossible for the court to be satisfied that the accused subjectively knew that he did not have consent to proceed with the acts.”

The accused was therefore exonerated.

The second applicant is not alone in having experienced a situation where the court acknowledged a lack of consent, but not an intent to rape, in a rape case. In some cases, the difficulties around proving intent prevent rape cases from going to trial at all, according to Germanos.

“The prosecution won’t take on the matter… because they just think they are never going to be able to prove the subjective intent part. So, a lot of rape cases just don’t even see prosecution,” she said.

A culture of gender-based violence

Gender-based violence, including rape, is a long-standing scourge on South African society, and statistics suggest that progress in alleviating the problem has been limited. The most recent SAPS crime statistics, from the second quarter of 2022/2023, show that there were 10,590 rape cases reported between July and September, compared to 9,556 during the same period last year. This marks an increase of 10.8%.

In the 2021/2022 financial year, the National Prosecuting Authority’s conviction rate for sexual offences — a broad category that includes rape, sexual assault, incest, bestiality and sexual offences against children — was 74.3%. This amounted to 3,379 successful convictions, according to the NPA Annual Report 2021/2022.

During the same financial year, a total of 52,653 sexual offences were reported, according to the South African Police Service (SAPS) crime statistics. Of these, 41,695 were rape cases.

Attrition of rape cases — when reported rape cases fail to reach trial — can be caused by a number of factors, according to a 2017 study on Rape Justice in South Africa. These can occur:

• “At the reporting stage, where a police officer may use their discretion not to open a case if they are not convinced of the reliability of the complainant’s statement;
• “At the investigation stage, when either the suspect remains unidentified and chances of locating or arresting the suspect are deemed nil or very low, or when the victim is subsequently untraceable or expresses disinterest in pursuing the case;
• “At the prosecution stage, when the prosecutors decline to prosecute for different reasons, including the low strength of evidence collected;
• “Prior to the start of trial, [when] the prosecutor may withdraw the case due to lack of cooperation from the complainant, the disappearance of perpetrators or other reasons;
• “After the trial has started, [when] the failure to establish a prima facie case or other reasons leads to the case being discharged by the court.”

Speaking on the Embrace Project’s attempts to ensure better access to justice for victims and survivors of rape, Germanos said that it was important for civil society to assist government in identifying gaps in legislation. She added that it was the responsibility of South African citizens to “look out for what’s best for our society”.

“This litigation wouldn’t even be here had it not been for a rape survivor [the second applicant] speaking up, [even though] this would never change her case — in her case, her perpetrator has been acquitted, and he will remain acquitted,” said Germanos.

“This is really groundbreaking, this constitutional challenge, and it’s thanks to her that other people in her position in future will actually get the justice that she didn’t.” DM/MC