Pretoria - The Embrace Project is challenging what it calls problematic definitions of consent and rape in the Sexual Offences Act, as recently amended.
The non-profit organisation (NPO) filed papers in the Gauteng High Court, Pretoria against the Minister of Justice and Correctional Services, President Cyril Ramaphosa, and the Minister of Women, Youth and Persons with Disabilities as respondents.
The second applicant in the application is a rape survivor, whose attacker was acquitted based on the amended Act.
The organisation said in court papers that as the law stood, it was 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.
“A subjective test is applied in South African law when it comes to a charge of rape.
“This test is not only regressive, but has proven to be an almost insurmountable barrier to the conviction of accused persons who have been found to have committed acts of sexual penetration without the consent of the complainants.
“This is where the prosecution has been unable to prove that the accused subjectively intended to rape the complainant,” the Embrace Project said.
The applicant will ask the court to declare various sections of the criminal law (Sexual Offences and Related Matters) Act unconstitutional, invalid, and inconsistent with the Constitution.
This is to the extent that these provisions do not criminalise sexual violence where the perpetrator wrongly and unreasonably believed that the complainant was consenting to sex.
Lee-Anne Germanos, director of the Embrace Project, said in papers filed in court that the Act enabled an accused to avoid a conviction on the basis of his subjective understanding of whether the complainant consented to the sexual act in question.
Examples of where this was particularly problematic, but not exclusively so, were in cases of intimate partner rape or where consent was initially given but then revoked, Germanos stated.
She explained that currently in South Africa, it was not a criminal offence to penetrate a victim without their consent, as long as the State could not prove beyond a reasonable doubt that the accused knew that the complainant did not consent.
As things stand, if it is reasonably true that the accused subjectively believed the complainant was consenting - even if that belief was unreasonable - then the accused must be acquitted of a charge of rape.
The applicant said that by enabling a defence of unreasonable belief in consent, the Act violated the rights of victims and survivors to equality, dignity and bodily integrity.
One example cited was where a woman only consented to oral sex, but the accused then had full blown sex with her, despite her telling him to stop.
His defence was that her "body language" indicated that she had changed her mind about having sex that night and that she had given "tacit consent" to penetration.
The magistrate's court convicted him of rape, but he was acquitted on appeal by the high court.
That court, in its reasoning, explained how high the burden of proof was to convict someone of rape under the Act.
The State needs to prove, beyond a reasonable doubt, that the accused unlawfully and intentionally committed sexual penetration with the complainant, without her consent.
Government has still to file their papers.
Pretoria News