By Lehlohonolo Lehana.
Photo Credit: Russell Roberts.
The Pretoria High Court has ruled that some sections of the Sexual Offences Act are invalid and unconstitutional in a landmark judgment.
This decision means that rape suspects can no longer use their subjective belief in a complainant’s consent as a defense.
This judgment followed a challenge by the Embrace Project, the Centre for Applied Legal Studies – which was an intervening party – and a rape survivor to what they called problematic definitions of consent and rape in the amended Act.
They said the definition made it difficult for rape victims to get justice as the perpetrator could use the law as a defence.
The Centre for Applied Legal Studies asked the court to remove the definition of consent as an element of sexual offences in terms of common law and the Act.
It argued that the inclusion of consent as a definitional element is an unreasonable limitation of rights to the individual (predominantly women, gender-diverse individuals and children) to equality before the law as well as limitations on their intersecting rights to dignity and to be free from all forms of violence.
The rape survivor’s attacker was acquitted as a result of the now former legal position of the subjective belief test regarding the requirement of consent in rape cases.
The Act ignores the possibility of an objective test for fault, in respect of sexual offences defined by lack of consent. Consequently, an unreasonable belief in the presence of consent is a defence.
The State bears the high burden to prove that the accused’s claim that he was under the impression that consent had been given is not reasonably possibly true.
This was borne out in the case of Loyiso Coko who at first got away with rape. He and his victim only agreed on oral sex, but the accused performed penile-vaginal sex on the complainant and claimed that the complainant’s body language gave tacit consent to penetration.
The court accepted that he had subjectively believed that there was consent.
The applicants further argued that the State has failed to take necessary and effective measures to respect, protect, promote and fulfil the fundamental rights of women and children.
Judge Selby Baqwa found that by enabling defence of the unreasonable believe in consent, the Act violates the rights of victims and survivors to, among others, equality and dignity, and the right to be free of all forms of violence.
Balancing the competing interests of victims with the rights of an accused to a fair trial will not be prejudiced if the required standard changes to an objective test, Judge Baqwa said.
Sections 3, 4, 5, 6, 7, 8, 9, read with section 1(2) of the Criminal Law (Sexual Offences and Related Matters) 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, alternatively, to the extent that the provisions permit a defence against a charge of sexual violence where there is no reasonable objective belief in consent.”
The order has been suspended for 18 months to allow parliament to amend the constitutional defect. In that time the act should include that the disputed sections are not a valid defence for the accused person to rely on a subjective belief that the rape victim gave consent unless the accused took objectively reasonable steps to ensure the victim consented to the sexual conduct in question.
Fullview has asked the Department of Justice and Correctional Services for comment and it will be added if it becomes available.