Pivotal case on rape and consent could reshape South Africa's legal landscape

The potential ruling by the Constitutional Court that parts of the Criminal Law (Sexual Offences and Related Matters) Act, 32 of 2007, concerning consent, are unconstitutional could contribute to reducing incidents of rape.

This was heard during oral evidence in the Constitutional Court on Thursday in which the Embrace Project, a non-profit organisation which aims to combat gender-based violence, and rape survivor Inge Holzträger have filed an application challenging the constitutionality of the Act.

The applicants have turned to the court to declare sections of the Act unconstitutional and invalid where the challenge hinges on specifically provisions dealing with sexual offences in which the absence of consent is a constituent element, most notably rape. 

Holzträger was raped in 2018 by a man she met through an online dating platform. The court acquitted the accused on the basis that the victim had not objectively consented to the accused's penile penetration, but she neither physically resisted nor loudly protested.

The trial court accepted that the accused had subjectively believed that there was consent despite her evidence that she was “shell-shocked and in a trance” and she had “frozen” - her reaction was described as peritraumatic stress. 

During oral arguments before the Constitutional Court, Nasreen Rajab-Budlender SC on brief for Embrace and Holzträger, submitted in one of her responses that the relief sought from the court will, to an extent, reduce instances of rape.

Rajab-Budlender SC responded to Justice Owen Rogers, that it was a nuanced question whether the aim of the application was to secure more convictions and in so doing reduce incidences of rape, adding that rape has many factors.

Rajab-Budlender submitted that these factors include “our brutal past, our huge employment statistics and power imbalances”.

“We know that there are all of those reasons why our rape statistics are so high. We are not asking the court to fix the entire problem. This court can’t do that. We know that courts can only do part of the work and there is a huge amount of social work that must be done to fix the other parts of this problem. But where it comes before this court is through this Act. 

“It’s the application of this Act that this context of gender-based violence, finds itself squarely in the court system…It will change the way in which individuals behave because it will require them to take steps to determine consent,” submitted Rajab Budlender SC. 

Further to her evidence and answering questions from the bench, Rajab-Budlender SC said steps which could be taken for consent to exist, should be a conversation “not with legal jargon or terminology” and not to “unromanticise” the act of sexual interaction, is to ask and to have care to ask “is this okay? Are you okay?”.

Embrace in their written submissions said: “Rape is perhaps the most horrific and dehumanising violation that a person can live through and is a crime that not only violates the mind and body of a complainant, but also one that vexes the soul. This crime is an inescapable and seemingly ever-present reality and scourge on the nation and the collective conscience of the people of South Africa... Section 165 of the Constitution vests judicial authority in the courts and nowhere else. They are the gate-keepers of justice.”

The applicants submitted that the Act, as it is currently framed, undermines the rights of victims and survivors of sexual violence, including their rights to equality, dignity, privacy, bodily and psychological integrity, and freedom and security of the person.

“As the law presently stands, an accused can avoid conviction where they wrongly believed that the complainant consented to the sexual act, even if that belief was unreasonable.

“As sexual offences almost always occur in private, the victim’s or survivor’s testimony is frequently the only direct evidence available. When consent is included as a definitional element, the case becomes a contest between the complainant’s account and the accused’s denial. In practical terms, the victim must give evidence so compelling that it excludes any reasonable possibility that the accused believed consent was present. This burden is exceptionally difficult to discharge, particularly where the accused can rely on ambiguous circumstances to raise doubt,” the applicants submitted.

Oral evidence continues to be heard.

Cape Times