Publications
- A non-profit organisation is challenging the definitions of consent and rape in the Sexual Offences Act.
- The organisation filed its application in the Gauteng High Court in Pretoria on Friday.
- The organisation argues that as the law currently stands, it is insufficient to prove that an accused person committed an act of sexual penetration without the complainant's consent.
The Embrace Project, a non-profit organisation, has launched an application in the Gauteng High Court in Pretoria challenging the "problematic" definitions of consent and rape in the Sexual Offences Act.
The organisation wants sections of the act to be declared unconstitutional, invalid, and inconsistent to the extent that those provisions do not criminalise sexual violence where the perpetrator "wrongly and unreasonably believed that the complainant had given consent".
The minister of justice and correctional services, the president and the minister of women, youths and persons with disabilities are cited as respondents.
The organisation, which aims to "creatively combat" gender-based violence and femicide in South Africa, launched the application on Friday.
The organisation said examples of where the act was "particularly problematic", but not exclusively so, were in cases of intimate partner rape or where consent was initially given but then revoked.
The organisation added that as the law currently stands, "it is insufficient to prove that an accused person committed an act of sexual penetration without the complainant's consent". "It must further be proved that, in the accused's subjective state of mind, he/she/they intended to rape the complainant regardless of the complainant not having consented to the sexual penetration.
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"Currently, in South Africa, it is not a criminal offence to penetrate the vagina or anus of a person without their consent, as long as the state cannot prove beyond a reasonable doubt that the accused knew that the complainant did not consent," Lee-Anne Germans, the director and co-founder of the organisation said in court papers.
Germans said the state was required to address the flaws in the act.
The organisation listed cases where men were acquitted due to the consent issue.
It said the second applicant in the matter, a female student, was a complainant in a rape case which was heard in the Pretoria Regional Court in 2019.
Her alleged rapist was ultimately not convicted due to the current legal position on subjective belief in consent.
"In its reasoning, the Pretoria Regional Court found that [the student] had objectively not consented to the accused's penile penetration of her vagina and anus, but that, because she had neither physically resisted nor loudly protested, the state had not excluded the possibility that the accused did not hear her say 'no', and thus had not proved beyond a reasonable doubt that the accused knew or foresaw that she was not consenting (despite the fact that the court found that the accused was not a credible witness)."
The student brought the current application on her own behalf and in the public interest, said the organisation.
The organisation also spoke about the case of a former paramedic who was found guilty of raping his girlfriend, who had expressed a wish not to have penetrative sex as she wanted to remain a virgin.
The Eastern Cape High Court overturned the man's conviction.
According to court papers, Loyiso Coko said he believed that consent had been given and had he known that consent had been withheld, he would not have proceeded with intercourse.
The High Court then found in his favour. However, the judgment is on appeal.
Germans said: "Regardless of whether it was rightly decided, Coko v S has starkly spotlighted the unconstitutional shortcomings in the act, as identified and challenged in this application. The law as it presently stands violates the rights of victims/survivors - most of whom are women - to equality, dignity, privacy and freedom and security of the person."
