Understanding the High Court ruling on rape and consent

The Johannesburg High Court has delivered a significant judgment which has declared the defence of “subjective consent” to a charge of rape as unconstitutional. Illustration: Lisa Nelson

The Johannesburg High Court has delivered a significant judgment. It has declared unconstitutional the defence of “subjective consent” to a charge of rape. Judge Selby Baqwa said such a defence unjustifiably violates the constitutional rights of rape survivors and complainants to equality, human dignity, privacy and bodily integrity.

We explain here the defence of subjective consent and why the High Court found it unconstitutional.

The defence of subjective consent

In terms of the Sexual Offences and Related Matters Act someone who is charged with rape can escape conviction if they can show it is reasonably possible that they believed that the complainant had consented to sex.

This controversial defence does not require showing that consent was actually given. In other words, the defence can allow an accused to escape conviction even when the complainant did not consent. If the accused can show it is reasonably possible that they believed the complainant “tacitly consented”, they may be acquitted.

Significantly, someone accused of rape could rely on this defence even when they did not take reasonable steps to determine whether the complainant had consented.

For example, in a heavily criticised case delivered by the Eastern Cape High Court in 2021, a man accused of raping his girlfriend escaped conviction by relying on subjective consent to argue, among other things, that she had voluntarily engaged in foreplay before sex. This judgment was overturned by the Supreme Court of Appeal.

What the applicants argued

During 2022, the Embrace Project and a rape survivor started High Court proceedings to have those sections of the Act which allow the defence of subjective consent declared unconstitutional. They made two main arguments.

Firstly, the defence of subjective consent perpetrates harmful stereotypes about rape, such as the belief that someone could only be raped when they were subjected to physical violence or threats; the myth that in the absence of this, consent to sex can be assumed; and that consent to foreplay automatically meant the survivor consented to sex.

Secondly, it encourages victim blaming by focusing on the conduct of the rape survivor and not the person accused of rape. The defence allows the accused to argue that they believed consent was provided, for example, because the survivor did not immediately report the crime, flirted with the accused, or had given consent to other types of sexual activity.

The applicants said that the Act should be amended to only allow for the defence of subjective consent to be raised when the accused can show that they had objectively taken reasonable steps to determine whether the complainant had provided consent.

Supporting arguments

The Centre for Applied Legal Studies (CALS), Centre for Human Rights and the Psychological Society of South Africa also made arguments in support of the case.

CALS argued that “consent” should be completely removed from the definition of sexual offences. CALS said this was because amending the definition of subjective consent would not solve the problems with the Act because the focus in sexual offence cases would still remain on the complainant.

The court rejected this argument on the basis that Parliament had decided to include “consent” as a requirement to prove sexual offences. The court said that completely removing the “consent” requirement for sexual crimes would violate the separation of powers.

The Centre for Human Rights and Psychological Society of South Africa argued that the courts should incorporate developments in psychology when assessing consent in rape crimes. They explained that an accused person is more likely to rely on the defence of subjective consent where the trauma of the rape caused the complainant to act in a passive manner.

Minister of Justice opposes the case

The Minister of Justice agreed that rape is a traumatic, violent and serious crime. But the minister argued that the defence of subjective consent did not violate any constitutional rights.

The minister argued that the current legal framework protects the rights of people who have been subjected to sexual crimes because any sexual intercourse that takes place without consent is criminalised.

The minister said that the legislation had been amended to include an expanded definition of rape, and it had also been changed as to how evidence in cases involving sexual offences are handled by courts. These amendments were consistent with international law, the minister said.

Unconstitutional

Judge Baqwa explained that the Act requires the prosecution to prove two things beyond a reasonable doubt before someone can be convicted of rape.

First, that the accused had sex with the complainant without their consent.

Second, that the accused knew that the complainant did not consent to sex. This meant the Act required the prosecution to prove beyond a reasonable doubt there was no reasonable possibility the accused did not know that consent had not been provided.

“This places an almost insurmountable barrier to the conviction of accused persons who have been found, by the courts, to have committed acts of sexual penetration without the consent of the complainant. By enabling a defence of unreasonable belief in consent, the Act violates the rights of victims and survivors, to equality, dignity, privacy, bodily and right to be free from all forms of violence and the right not to be treated in a cruel, inhumane or degrading way”, the judge said.

The next question the court had to determine was whether the violation of these constitutional rights was justifiable in terms of the “limitation clause”. This refers to a section of the Constitution which allows for the limitation (or infringement) of a constitutional right when it can be shown, among other things, that the limitation aims to achieve an important purpose, there exists a rational link between the limitation and its purpose, and the limitation is reasonable and justifiable in a society based on human dignity, equality and freedom.

When the limitation of a right does not meet these requirements, the court must declare that limitation unconstitutional.

The court found that the minister failed to show that the limitation of the rights to equality, dignity, privacy and bodily integrity in the Act met the requirements.

Ruling

The court suspended the order of constitutional invalidity for 18 months to allow Parliament to fix the problems with the Act.

Until Parliament has amended the Act to remedy its constitutional invalidity, any accused who relies on the defence of subjective consent to a charge of rape must show that they took reasonable steps to ensure consent was provided.

The court rejected the argument that this would violate the rights of an accused person to a fair trial.

Requiring an accused person to show that they took reasonable steps to determine consent existed would also properly balance the rights of victims and accused, the judge said.

The case will be referred to the Constitutional Court who must decide whether the order of constitutional invalidity should be confirmed. The minister was ordered to pay the costs for the Embrace Project and the rape survivor.

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