The Gauteng High Court, Pretoria, has this week heard arguments regarding the legal definitions of rape, which is said to in some instances provide that rape accused escaped accountability as they claimed consensual sex with their victims.
Lawyers for Human Rights represented the Centre for Human Rights and the Psychological Society of South Africa as joint friends of the court in the matter instituted by the Embrace Project and a rape victim, against the justice minister and others.
The friends of the court explained to the court the trauma experienced by sexual assault on survivors.
The legal definition of consent came under the spotlight, with the applicants arguing that the law establishes a subjective standard for consent, thus allowing perpetrators of sexual assault to be acquitted based on a belief that there was consent, whether or not it was reasonable.
The defence of mistaken belief in consent thus prevents survivors from holding perpetrators accountable where they cannot prove a subjective intent to assault, the court was told.
The Embrace Project, a non-profit organisation that combats gender-based violence, and a rape survivor argued that this subjective standard violates victims’ constitutional rights to equality, dignity, privacy, and freedom and security of the person.
They also emphasised the government’s duty under international human rights law to prevent and punish sexual violence.
The Centre for Applied Legal Studies has intervened as the third additional applicant in the public interest. It argued that the central issue is not with the existence of the defence of mistaken belief in consent, but rather with defining rape in terms of lack of consent.
In turn, the minister of justice opposed the application on the basis that the arguments forwarded by the applicants, would impermissibly infringe upon the constitutional rights of the accused, in particular, the presumption of innocence.
The friends of the court’s submissions focused on how the trauma suffered by survivors of sexual assault impacts their expression of consent.
According to them, non-active peritraumatic responses to sexual violence necessitate an objective and active understanding of consent. Consequently, the defence of mistaken belief must be subject to an objective reasonableness standard.
This must be to the extent that while consent remains an element of the definition of rape, it must be active and expressed, they told the court.
After a recent case highlighting the challenges with the definition of consent, and cognisant of the harrowing lived experiences of countless victims and survivors in South Africa, this matter challenges the prevailing norm that an unqualified subjective belief in consent means that a victim or survivor of a sexual offence cannot secure justice for “one of the most heinous affronts to their dignity and bodily and psychological integrity,” the applicants argued.
In terms of the Sexual Offences Act, a perpetrator of rape and/or sexual violence can be acquitted if they subjectively believed there was consent – even if that belief was unreasonable.
According to the applicants, this subjective threshold places an almost insurmountable barrier to the conviction of a perpetrator who has been found to have objectively committed an act of rape or sexual violence without the consent of the victim or survivor, but where it could not be proved that the perpetrator subjectively intended to rape or sexually assault the victim or survivor.
The applicants argued that this position is outdated and unconstitutional, and violates the constitutional rights of victims and survivors to equality, dignity, privacy, and freedom and security of the person.
Pretoria News