The legal definitions of rape, which is said to give some perpetrators a way out to facing the brunt of the law, will come under the spotlight in the Gauteng High Court, Pretoria, during a constitutional challenge launched by a non-profit organisation (NPO) against the definitions of rape and consensual sex as contained in the law.
The Minister of Justice and Correctional Services is opposing the challenge on the basis that there is nothing wrong with the law as it stands.
But the Embrace Project and a rape survivor – the applicants in the case – is challenging what it calls problematic definitions of consent and rape in the Sexual Offences Act, as amended.
The organisation said at present the definition made it difficult for rape victims to get justice.
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 NPO will argue.
In terms of the 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The applicants will argue that this position is outdated and unconstitutional, and violates the constitutional rights of victims and survivors to equality, dignity, privacy, and freedom and security of the person.
Included in their arguments is that this is contrary to the South African government’s duty to prevent and punish sexual violence. They also say it is inconsistent with international human rights law and legal developments in comparable constitutional democracies across the world.
The applicants submit that the Act perpetuates disrespect and disregard for women’s sexual autonomy.
As a result, they will ask for a declaration of constitutional invalidity and propose an interim reading-in into the Act while Parliament remedies the legislative defects (within a 12-month period).
But in its opposing papers, the office of the minister said if the court ordered in favour of the applicants, it would revoke an accused’s presumption of innocence.
It is said in opposing papers that the effect of the order sought would remove the constitutional rights of an accused to be presumed innocent until proven guilty. It would also lower the standard of proof in criminal cases from proof of guilt of an accused person beyond reasonable doubt to negligence, the respondents will argue.
But the Embrace Project said the Act at present was insufficient to prove that an accused committed an act of sexual penetration without the complainant’s consent.
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.
They are attacking the Act 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.
The matter is due to be heard over two days, starting on July 22.
Pretoria News
zelda.venter@inl.co.za