Gaps in South Africa’s law on rape and other sexual offences pose challenges to successful convictions. Although the country is “paper rich” when it comes to legislation and national policies which seek to deal with sexual violence, there are lacunae in the law which stand as hurdles to convicting perpetrators.

In Rape Unresolved, Dee Smythe recorded that “more than 1,000 women are raped in South Africa every day. Around 150 report the crime to the police. Fewer than 30 cases will be prosecuted and no more than 10 cases will result in a conviction. This translates into an overall conviction rate of 4-8% of reported cases.”

In the most recent statistics, the South African Police Service (SAPS) recorded 43,037 rape cases between April 2022 and March 2023. And in the Department of Justice’s 2022/23 annual report, it recorded that only 519 accused were sentenced for rape offences, and there were only 3,460 convictions for sexual offences generally.

The rate of attrition in South Africa has remained largely unchanged over the years. “Attrition” here refers to the number of arrests that result in no conviction. In light of this, we need to introspect and rigorously interrogate whether the legislative framework that governs rape and other sexual offences is entirely fit for purpose. 

The definition of “rape” and the defence that flows from it, in both the common law and the Criminal Law (Sexual Offences and Related Matters) Amendment Act, creates substantive and procedural problems in proving rape and other sexual offences.

Consent

First, the requirement of consent allows perpetrators to raise a full defence of mistaken belief in consent. This essentially means that a perpetrator, after it has been established that they sexually violated another person, can claim that they mistakenly thought that the victim consented to the sexual encounter.

The drawback here is that the mistaken belief does not need to be reasonable. An illustration of this is the classic case of the Director of Public Prosecutions v Morgan (UK). The facts were that Morgan invited three of his colleagues to have sexual intercourse with his wife and told them that the resistance offered by his wife should be seen as nothing more than sexual stimulation on her part as she was “kinky” and only pretended to resist.

When charged with rape, the men argued that they mistakenly believed that she consented to the sexual encounter. The British court took the view that where an accused honestly believed that a woman consented, there could be no conviction. This is despite how unreasonable the belief may have been.

Sexual offence laws have since changed drastically. Jurisdictions such as the United Kingdom, Australia, Canada and Northern Ireland now require the belief in consent to be reasonable. The departure from the “mistaken belief” approach is that where it is unreasonable, the defence should not be available to the accused. However, this requirement has not yet made its way into South African law.

What’s more, no other evidence is required to substantiate the perpetrator’s bare statement. This means that rapists can raise this defence without providing any further evidence that there was consent, and be acquitted, regardless of how absurd or unreasonable their mistaken belief is.

The predicament that this presents is that the state needs to prove a lack of consent, which includes proving that there was no mistaken belief of consent. And all of this must reach the highest burden of proof, which is beyond a reasonable doubt. 

During this stage, the court’s focus inadvertently shifts from the perpetrator to the victim, who then must demonstrate how they actively resisted sexual intercourse or conveyed to the perpetrators that they did not want to have sex.

Rape myths

This approach is highly problematic as it feeds into the stereotypical view of what “real rape” is and what “appropriate” or “real victim” responses are to rape. When a rape victim doesn’t fight back, they are perceived to be a willing participant. These rape myths are at the heart of the high attrition rates in South Africa.

To counter this, our law needs to be amended to limit the applicability of the mistaken-belief defence. This will allow us to increase conviction rates and move away from a criminal justice system that places the burden of proof on victims of sexual offences to show just how much they resisted being raped and that their perpetrators knew that they did not have consent.

There should be enforcement of strict requirements to address this problem. First, as in other jurisdictions, the defence of “mistaken belief” should fall away where the “mistaken belief” could be caused by the accused’s self-induced intoxication, recklessness or wilful blindness.

Second, if the perpetrator did not take reasonable steps to ascertain that indeed the victim was consenting. And last, where there is no air of reality to the defence. For instance, where the accused’s claim of mistaken belief is not supported by any positive evidence of consent, or other plausible sources that support and explain how the accused honestly regarded the victim’s non-consent as consent [See Section 273.2(a)(i)(ii) and S265(4) of the Criminal Code, RSC. 1985, c. C-46. S. 265(4). R v Osolin (1993).]

Although it could be argued that the reasonableness requirement advocated for in this opinion is catered for when judicial officers exercise their discretion and make inquiries into the perpetrator’s actions, I argue that this inquiry is not always undertaken.

A good case in point is the judgment in Loyiso Coko v S, where Mr Coko had been found guilty by the Grahamstown Magistrates’ Court of raping his then partner. The high court overturned the rape conviction and concluded that even though the complainant explicitly said “no” to vaginal-penile penetration, Coko still mistakenly believed that she had consented.

The court found that when the complainant consented to “foreplay”, Coko interpreted this as tacit consent to intercourse. This is notwithstanding that it is accepted in law that mere submission or lack of resistance is not enough to establish consent, and that consent to one form of penetration does not amount to an agreement to participate in all forms of penetration. 

Had the reasonableness requirement for this defence formed part of our law, the court would have been compelled to consider if Coko was in fact reasonable (in his “mistaken belief”) to rely on the said “body language” of the complainant over her express words, where she clearly said that she did not want to have sex with him.

Having found that there was no consent from the onset, there could be no argument that he was deceived by the complainant’s body language. Therefore, his belief in consent was false and the defence should have fallen away.

The National Prosecuting Authority has subsequently appealed this ruling and the appeal will be heard on 14 November 2023 by the Supreme Court of Appeal. We can only hope that the SCA will agree with this approach.

On the whole, the above case demonstrates that we cannot rely too heavily on judicial officers making inquiries into the reasonableness of the mistaken belief (outside of what is prescribed by the law). For this reason, the requirement for a reasonable mistaken belief should be included in our law. We cannot simply assume that all judicial officers can and will give due weight to the reasonableness required.

Where the Legislature can limit room for error, it should do so by reforming the law as the lack of an explicit requirement for reasonableness is so grave that we would rather err on the side of caution. DM 

Jessie Ditshego is a candidate legal practitioner and Bertha Justice Fellow at the Centre for Applied Legal Studies, Wits University.