ConCourt asked to redefine ‘consent’ in sexual offences cases

Trigger warning: This article refers to instances of rape and/or sexual violence. 

On Thursday, 25 September, the Constitutional Court heard a case brought by the nonprofit organisation Embrace Project challenging the constitutionality of various provisions within the Criminal Law (Sexual Offences and Related Matters) Act, including those related to rape.

Central to the arguments put forward by the Embrace Project, an organisation that combats gender-based violence (GBV) in South Africa, is that the law allows an accused person to avoid conviction where they wrongly believe that the victim consented to the sexual act, even if that belief is unreasonable.

This permits an accused to raise their belief in consent as a defence, by alleging they thought the victim was saying “yes”, or was showing they were willing participants in the sexual act through their actions or lack of resistance. It does not require showing that consent was actually given.

The Embrace Project launched the constitutional challenge in November 2022, together with Inge Holzträger, the second applicant and a survivor of rape.

Representing the Embrace Project and Holzträger in the Constitutional Court, advocate Nasreen Rajab-Budlender said the burden of proof the State had to meet in sexual offence cases under the current laws was “almost impossible”, particularly in situations where victims experienced a peritraumatic response during assaults, such as freezing up.

“In the papers put up by the Psychological Society of South Africa … in the high court, they recorded … in South Africa between 2022 and 2023, 42,780 cases of rape were reported. Of these, there were only 591 convictions. This translates to a 1.38% successful prosecution rate,” said Rajab-Budlender.

“Something is clearly wrong, and we submit that there are many factors for what’s wrong, but in large part it has to do with the difficulty of proving these crimes, the burden that is on the state, and that is the subjective standard … of consent that is inherent in … the sections of the Act.”

Unconstitutional and invalid

The Constitutional Court proceedings follow a ruling of the Gauteng Division of the High Court in Pretoria in September 2024, which found sections 3, 4, 5, 6, 7, 8, 9 and 11A read with section 1(2) of the Criminal Law (Sexual Offences and Related Matters) Act to be unconstitutional and invalid, as they were inconsistent with the rights of victims and survivors of sexual violence.

Read more in Daily Maverick: ’Not a dry eye in the room’ as court rules parts of Sexual Offences Act unconstitutional

The respondents in the case are the minister of justice and correctional services, the minister in the Presidency for women, youth and persons with disabilities, and the President of South Africa.  

The Embrace Project and Holzträger are seeking a ruling from the Constitutional Court confirming the high court order, which included a suspension of the declaration of invalidity for 18 months to allow Parliament to amend the relevant sections of the Act.

During this period, the applicants request an interim solution where it’s read into law that it is not a valid defence for an accused person to rely on a subjective belief that the complainant was consenting to a sexual act, “unless the accused took objectively reasonable steps to ascertain that the complainant had consented to the sexual act in question with the accused”.

While the State respondents opposed the Embrace Project’s case in the high court, they elected not to oppose the relief sought in the Constitutional Court, with the legal team indicating they would abide by the court’s decision. However, they requested 36 months to rectify the legislation.

Holzträger told Daily Maverick: “I think it’s such an important thing for people to realise that the law is failing in terms of sexual offences, and that, for me, is the biggest motivator. I’m not doing this for me. My case is done. It will never change. But [the constitutional challenge] will make a huge difference in so many women’s lives.”

Problem of intent 

The Sexual Offences Act 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.

In Holzträger’s rape case, the regional court in Pretoria found that the accused acted unlawfully and without Holzträger’s consent. However, he was exonerated as the court was not satisfied that he “subjectively knew that he did not have consent to proceed with the acts”, according to the judgment in the case.

In the judgment, which was included with the founding affidavit for the Embrace Project and Holzträger’s constitutional challenge in the high court, the following information was put forward:

• Holzträger and the accused met for the first time on the night of the incident, having communicated electronically before 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 said “no” during the assault, but could not confirm whether he had heard her; and
• She felt “shell-shocked” and as if she was “in a trance” during the assault.

The doctor who examined her after the incident testified 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”.

The accused claimed that Holzträger consented to the sexual act, 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”, according to the judgment.

The final part of the judgment 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. 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.”

Fighting for justice 

A challenge Holzträger has faced in pursuing the constitutional challenge is the slow-moving nature of the courts, with multiple delays due to parties requesting extensions or failing to submit papers on time.

“I don’t know whether they necessarily understand the gravitas of the case and how many people it’s affecting daily when the law is the problem,” she said.

However, she noted that her family, legal team and therapist had provided “great support” to her over the course of the case. Other survivors of sexual assault have also reached out to her with their stories.

“I’ve had quite a few people who’ve opened up to me, saying it also happened to them… Because I’ve gone through it myself, it’s a little bit easier [to understand their experiences]. And I remember what it felt like, not wanting to tell anyone — you immediately feel so ashamed, although you didn’t necessarily do anything wrong,” she said.

Holzträger encouraged survivors of sexual offences to always report the assaults and “take the power back”. She said she felt “positive” about the Constitutional Court proceedings.

“I think [it’s important] to remember that there’s actual people behind the laws, and I think that’s something that so easily gets missed. Out of everyone that is going to be presenting at the ConCourt, the Embrace Project and I are the only party that actually has a person, a case behind them. Everyone else is making academic arguments. They don’t know how it will actually affect the people it’s supposed to protect,” she said.

In the ConCourt 

Rajab-Budlender argued that the impugned provisions of the Act infringed on the rights to equality, dignity, privacy, bodily and psychological integrity and freedom and security of victims in sexual offence cases.

“Many survivors of sexual violence do not fight or flee, but they freeze. That is a recognised reaction. While the court can no longer infer consent from their silence or pacificity, the accused can because of the way in which these provisions are drafted, and the Act compels the court to treat this as a valid defence,” she said.

“Most perversely, the less progressive a man’s views are about consent, the more likely he is to be acquitted under the statute as it stands.”

Justice Owen Rogers questioned whether the changes to the Act would limit the rights of the accused person by criminalising negligence rather than knowingly unlawful conduct.

Rajab-Budlender responded, “The way the statute currently stands does not balance the rights of the complainant and the accused at all, because the analysis is purely on the subjective intention of the perpetrator. We submit that, in our formulation, there’s a greater balancing of rights, because an accused would be able to raise a defence that she consented and ... show that he took steps to verify that consent, and the burden would then be on the State ... to disprove that.”

Justice Narandran Kollapan reflected on whether the case was attempting to fix a “deep-seated, ingrained problem in our society” through “tampering with legislation”, and questioned whether the changes to law would have the desired results if the filtering of evidence in courts still fell short of the standards set.

“It is often the case that when this court is called upon to weigh in on the constitutionality of a statute, the court is trying its best to do its job as the arbiters of law. Law is not everything, and it’s not always a solution, and that is why ... we raise the context in which all of this happens, because social norms, myths, patriarchy operate in equal measure to law,” responded Rajab-Budlender.

“We say it is not okay for this court to do nothing in the context where there is clearly a problem.”

Various organisations that were not the litigating parties made submissions to the court offering information and expertise, including the Centre for Human Rights and the Women’s Legal Centre.

The Centre for Human Rights provided psychological insights into the responses of victims during a sexual assault.

The Women’s Legal Centre argued against declaring provisions within the Criminal Law (Sexual Offences and Related Matters) Act unconstitutional, saying that changing the legislation was unnecessary.

“We submit that it is disingenuous to recognise the historical power and control [of the patriarchy], and then essentially to infantilise men by accepting the contention that they labour under a genuine but unreasonable belief in consent,” said the legal team for the Women’s Legal Centre.

“What this court can do is recognise that when evaluating claims of a belief in consent, trial courts must evaluate whether reasonable grounds exist to support that claim.”

The Constitutional Court reserved judgment. DM