Ruling marking shift in how courts view sexual consent welcomed

A court ruling that recently found that a rape accused must confirm sexual consent instead of assuming it has been cautiously welcomed.

On Monday, the High Court in Pretoria ruled that the unreasonable belief in consent can no longer stand as a legal defence to sexual assault.

Legal experts say the ruling represents a pivotal shift in how courts in South Africa view consent, particularly in cases where survivors exhibit passive or involuntary responses to trauma, such as tonic immobility.

The judgment acknowledges the complex psychological factors that may prevent survivors from clearly communicating non-consent, either verbally or behaviourally, thus rendering the “mistaken belief” defence untenable in such circumstances.

According to the head of Gender Justice at Wits and Human Rights Lawyer, Dr Sheena Swemmer, the admissibility of unreasonable belief in consent at court used to let perpetrators of sexual assault off the hook, whether their belief was reasonable or not.

They could successfully argue that even if the complainant did not consent to sexual intercourse, they mistakenly believed that the victim did.

Dr Swemmer says while the landmark ruling could have some effect in intimate partner cases, it won’t result in a significant number of convictions. 

Anti-GBV Non-Profit Organisation, Embrace Project, and a rape victim had approached the court, challenging parts of the Sexual Offences and Related Matters Act.

Director and co-founder of Embrace Project, Lee-Anne Germanos Manuel, says the case was in pursuit of justice for the survivor after they realised that she had been failed by the law not its application.

She was raped in 2018 by a man she met on an online dating site.  He invited her to his home on pretenses that he was hosting a party. On arrival, she found there was no party and he raped her on that same night.

The court acquitted the alleged perpetrator on the basis that while the rape survivor had not objectively consented to the sexual intercourse, she also had not physically resisted or loudly denied consent.

Contrary to Dr Swemmer’s assertion, the organisation believes that on these bases, the court judgment could possibly see more convictions in rape cases as it addresses a critical gap in the legal framework, ensuring that consent must be objectively reasonable.

Manuel says they found it problematic that the law presumed that consent existed unless there was some form of outward resistance from the victim.

“For the first time in our law, an accused person actually has to confirm consent as opposed to assuming consent. In the past, this assumption as long as the accused didn’t clarify whether or not consent was given, they were most likely to get away with rape.”

She says often enough rape victims lose cases because the prosecution fails to prove that the accused knew that consent was not given.

While some may be concerned that the ruling will prejudice people who are falsely accused of rape, Manuel says it will provide a proper basis on which an accused can definitively prove that they received consent.

She added that it’s important to note that every form of sexual act requires consent.

“If you’ve consented to foreplay, it does not mean you’ve consented to sexual intercourse.”

 

The order has been suspended for 18 months to allow Parliament to amend the constitutional defect on the Act and Dr Swemmer believes there is a need to reform more sections of the Sexual Offenses and Related Matters Act.

“For example, the Centre for Applied Legal Studies at Wits suggested that consent should be taken out of the definition of sexual offences and instead the defence of consent should be permitted for accused persons, just like in any other form of crime.”