When laws unfairly discriminate against a person or group of individuals, South African courts can declare them invalid and unconstitutional. In effect this means that the law is fixed, either by the court or by Parliament, ensuring it is constitutional and does not discriminate against anyone.
Discrimination occurs when a law or policy unjustifiably negatively affects an individual considered part of a protected group under section 9 of the Constitution – the right to equality. The categories of protection under section 9 include race, gender, sex, and sexual orientation.
Discrimination can take two forms: direct or indirect. Direct discrimination includes laws or policies that explicitly impose burdens or withhold benefits from any person because the individual forms part of a protected group.
An example of these types of laws would be the criminalisation of “sodomy” in the Sexual Offences Act from 1957, where consensual sex between men was a crime in South Africa. The law, which was later found to be unconstitutional due to its discriminatory nature, was directly discriminatory as it criminalised consensual sex between men, as opposed to sex between men and women or women and women.
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Indirect discrimination, on the other hand, occurs when a law or policy appears to be neutral but, in fact, adversely affects a disproportionate number of individuals from a certain protected group.
An example of this indirect discrimination would be in the recent case of Mahlangu v Minister of Labour, where the Constitutional Court found that the Compensation for Occupational Injuries and Diseases Act of 1993 was indirectly discriminatory as the act did not extend its protection to domestic workers.
As most domestic workers in South Africa are black women, their exclusion was not direct insofar as the act did not explicitly exclude black women from its ambit. However, it was indirectly discriminatory as it negatively affected a disproportionate number of individuals who sat at the point of intersection of two protected categories, race and sex.
Disproportionate burden
On 22 and 23 July 2024, the Centre for Applied Legal Studies (Cals) will argue before the Gauteng Division of the High Court in Pretoria that the definition of sexual offences, such as rape, are indirectly discriminatory. We contend that the inclusion of “consent” as a requirement for many sexual offences creates a disproportionate burden on the victims of sexual offences, the majority of whom are women.
According to a study by the South African Medical Research Council (SAMRC) of cases of rape reported to the SAPS, 94.1% of victims were female, and 99% of perpetrators were male.
An issue that emerges along with women being the primary victims of rape is that in cases of rape, only 8.6% of cases are reported to the police resulting in the conviction of the perpetrator. Thus, in South Africa women are the primary victims of rape and will be exceedingly unlikely to see the conviction of their rapists.
For those 18.5% of victims who get to experience a trial against the perpetrator, the current definition of rape (and other sexual offences) will require them to give testimony of how they did not consent to their violation.
Because the current definition of rape requires “consent’” to be absent for there to be a conviction, the absence of consent needs to be proven by the prosecution at the high threshold of being beyond a reasonable doubt.
Private spaces
Due to the nature of rape occurring in private spaces, often the evidence of the victim is the only testimony of the event (often referred to as a “he said, she said” situation). Her evidence must show that the accused reasonably believed there was no consent. Thus, she must show how much she resisted the perpetrator so that he could understand that there was no consent.
Although our law does not explicitly require there to be physical resistance for there to be a guilty finding of rape, the requirement that the prosecution prove a lack of consent beyond a reasonable doubt implicitly requires women to show the degree to which they conveyed to the perpetrator that they were not consenting to a sexual encounter.
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The first prize would be if a woman physically fought off the man, as it would be less likely he could rely on mistakenly believing there was consent.
However, with the SAMRC reporting that victims physically resist rape in only 23.3% of cases of rape, many victims are being set up for failure by our criminal justice system, as proving resistance beyond a reasonable doubt rests predominantly on their evidence and whether the perpetrator reasonably believed there was consent.
Indirectly discriminatory
Why, though, is Cals arguing that the current formulation of sexual offences is indirectly discriminatory? First, and as referenced above, women are disproportionately the victims of sexual offences, and so laws around sexual offences will disproportionately affect them.
Second, and most importantly, many other offences that do not have women as the primary victims of the crime do not require that the prosecution prove the absence of consent.
In the instance, for example, of an assault, a man who is the victim of a physical attack by another man inside a bar does not have to show that he did not consent to being hit or punched. He is not asked if he physically or verbally resisted the attack. He is generally also not met with the response by the defence that his attacker was confused and mistook his lack of action as consent.
In crimes such as assault, proof of the lack of consent is not a requirement. The accused can raise it as a defence, yet bears the onus of proof, not the prosecution.
In conclusion, and as Cals will argue, when we have offences that do not have women as the primary victims requiring less evidence from the victim than offences such as rape, which disproportionately affect women and require inordinate evidence of a lack of consent, we have created laws that indirectly discriminate against women.
If we want to see laws exercised without discrimination and if we want to see successful prosecutions of sexual offenders, then dismantling the requirement of consent in sexual offences is the correct avenue for achieving this outcome. DM
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