Turning Point For Justice: South Africa’s Constitutional Court Rethinks Consent in Sexual Offences

On 30 September 2024 the High Court of South Africa, Gauteng Division, Pretoria (Case No. 04856/22) declared sections 3, 4, 5, 6, 7, 8, 9 and 11A read with section 1(2) of Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 unconstitutional, invalid and inconsistent with the Constitution to the extent that these provisions do not criminalise sexual violence where the perpetrator wrongly and unreasonably believed that the complainant was consenting to the conduct in question, alternatively to the extent that the provisions permit a defence against a charge of sexual violence where there is no reasonable objective believe.

The Constitutional Court is deliberating on this groundbreaking High Court decision and must determine whether the current sections in the Sexual Offences Act unfairly protect perpetrators by allowing defences based on unreasonable beliefs about consent.

Factual Background

The case was brought by Embrace Project NPC, a non-profit company that aims to creatively combat gender-based violence and femicide, together with Inge Holzträger (‘the applicants’). Ms Holzträger was a victim of rape and was the complainant in S v Amos case. Ms Holzträger was raped by a man she met through an online dating site. 

The man invited her to his home for a party, only to find out when she arrived that there was never a party, she was the only guest. Despite it being clear that Ms Holzträger did not consent to any sexual act, the accused was acquitted as the court found that it could not exclude the possibility that he subjectively believed that consent was given, even if such belief was unreasonable.

The applicants challenged the constitutionality of specific provisions in the Sexual Offences Act, in particular those relating to sexual offences where the absence of consent is a key element, most notably rape and asked the Court to declare them unconstitutional and to invalidate that the complainant had consented to the sexual act, unless the accused had taken all reasonable steps to confirm that consent.

The applicants further argued that the Act is outdated, unconstitutional, and unjustifiable as it fails to ensure adequate protection and uphold the constitutional rights of survivors, victims and potential targets of sexual violence, including their rights to equality, dignity, privacy, bodily and psychological integrity, freedom and security of the person.

The High Court Ruling

1. The High Court declared sections 3, 4, 5, 6, 7, 8, 9 and 11A read with section 1(2) of Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 unconstitutional, invalid and inconsistent with the Constitution to the extent that these provisions do not criminalise sexual violence where the perpetrator wrongly and unreasonably believed that the complainant was consenting to the conduct in question , alternatively to the extent that the provisions permit a defence against a charge of sexual violence where there is no reasonable objective believe.
2. The declaration of invalidity is suspended for a period of 18 months to allow the constitutional defects to be remedied by Parliament.
3. As interim relief, the Court “reading in” a requirement that an accused must have taken reasonable steps to ascertain that the complainant consented to sexual conduct in question. Without such steps, a defence based solely on a subjective belief in consent cannot succeed.
   
   

The Concerns regarding the current law

The current law rely on a purely subjective test for consent. An accused person can avoid conviction by claiming to have honestly believed that consent was given, regardless of how unreasonable that belief is.

This approach has led to inconsistent rulings and perpetuated harmful rape myths. The Constitutional Court must now decide whether to confirm the High Court’s ruling and shift the standard to an objective one.

Applicant’s submissions in relation to the current law

1. A subjective test is applied .The accused can avoid conviction where there is reasonable doubt that he subjectively believed that the complainant consented to a sexual act, even if that belief was unreasonable.
2. The focus is on the wrong person – The current system puts the victim’s behaviour on trial, saying ‘why didn’t they fight’?, ’why didn’t they say no louder’? and ‘what did they do to show resistance’? .The law should instead focus on the actions of the accused as to whether he took reasonable steps to ensure that consent was given thereby shifting to an objective standard.
3. The Act is outdated, unconstitutional and unjustifiable, as it fails to ensure adequate respect and protection of the constitutional rights of survivors, victims and potential targets of sexual violence.

The first and second amici curiae’s submissions

1. Victims experience various peritraumatic responses to sexual assault. Victims may freeze or become paralyzed with fear.
2. There is a need for courts to consider this peritraumatic responses to sexual assault and rape, in particular when an accused raises the defence of mistaken belief. Reference is made to the case of S v Coko where the High Court ruled that an individual’s mistaken belief in consent to penetrative sex could serve as a legitimate defence.

The Respondent’s submissions in relation to the current law

1. The current legislative framework protects and safeguards the rights of the victims of sexual violence as it includes consent as an element of rape.
2. That the use of an objective standard would unjustifiably limit an accused’s right to be presumed innocent and the rights to remain silent.
3. The state agrees that gender-based violence is a crisis but argues that “legislation alone cannot solve the problem”.

Conclusion

The Constitutional Court has 18 (eighteen) months from the date of the High Court Judgment to decide whether the contested provisions of the Act are unconstitutional and whether the “Amos defence” should finally be abolished. Until judgment is delivered, these sections remain in force, but their validity hangs in the balance.

Written by Ms Delinah Matsimela, candidate legal practitioner, under the supervision of Ms M Maganbhai-Mooloo, Head of Litigation, Pretoria