The Pretoria High Court handed down judgement on 30 September 2024 - and we won our Constitutional Challenge!
On 30 September 2024, the Pretoria High Court handed down judgment declaring certain provisions in the Sexual Offence Act unconstitutional for failing to protect GBVF victims against legal bias in favour of perpetrators. Pending confirmation by the Constitutional Court, the law will change requiring that an accused person take "objectively reasonable steps to ascertain that the complainant consented to sexual conduct". The subjective test for criminal intent has been declared unconstitutional and is to be replaced by an objective test.
Judge Baqwa, in his judgment stated the following:
"By enabling a defence of unreasonable belief in consent, the [Sexual Offences] Act violates the rights of victims and survivors to equality, dignity, bodily and psychological integrity, and freedom and security of the person which includes the 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 made the following order:
“Sections 3,4,5,6,7,8,9 [and 11A] read with section 1(2) of the Criminal Law (Sexual Offences and Related Matters ) Act 32 of 2007 are declared 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 in consent.”
Constitutionality of Rape and Consent Definitions
In Sexual Offences Act Legally Challenged
A ground breaking constitutional challenge today has been launched out of the Pretoria High Court, by The Embrace Project, against the problematic definitions of consent and rape in the Sexual Offences Act, as recently amended. The Minister of Justice and Correctional Services, the President and the Minister of Women, Youths and Persons with Disabilities are cited as respondents.
The issues raised against the Act in this application were first brought to the attention of the President in October 2021, prior to him signing the recent amendments to the Act into law. The Embrace Project, which had participated in the legislative process of the "GBV Bills" in 2020, wrote to the President informing him that a rape survivor, the second applicant in this litigation, had approached it in August 2021 and highlighted the issue of the application of intent in the definition of rape. This was further amplified in the controversial Coko v S judgment on appeal.
As the law currently stands, it is 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 (objectively), where the prosecution have been unable to prove that the accused persons subjectively intended to rape the complainants.
The Embrace Project, in both its 2021 letter to the President and its current application, points out that this not only explains the shocking conviction rate of rape in a country with the highest levels of GBVF in the world, but is a legislative endorsement and entrenchment of patriarchal beliefs and male sexual entitlement when a defence to rape may be based on an accused person's subjective sexist beliefs. Most perversely, given the law as it stands, the less progressive an accused person's views are about consent, the more likely he/she/they is/are to be acquitted of rape.
The President not only failed to respond to The Embrace Project's 2021 letter, but signed the Amendment Bill into law in January 2022 with full knowledge of the problematic provisions. It is for that reason that The Embrace Project, with the assistance of its legal team, Power Singh Inc, Advocates Azhar Bham SC, Nasreen Rajab-Budlender SC, Ben Winks and Lerato Phasha, have launched this legal challenge.
It must be noted that had it not been for the bravery of the second applicant, a GBVF survivor, this application - and the effect of its expected outcome - may have never seen the light of day.
Department of Justice’s Answering Affidavit
On the 16 March 2023 The Embrace Project received a response from the Department of Justice, in the form of an answering affidavit. This is in response to our Constitutional Challenge on the definitions of rape and consent in the Sexual Offences Act (Read the full details of our Constitutional Challenge below). The answering affidavit can be viewed below:
Read a summary on the Heads of Argument filed in the matter, or read the full Heads of Argument by clicking on the links:
The Embrace Project and IH's Heads of Argument in the High Court
Our application concerns a constitutional challenge to the Sexual Offences Act, specifically the provisions dealing with sexual offences for which the absence of consent is a main element, most prominently rape. The salient points of our argument are as follows:
As the law presently stands, an accused person can avoid conviction where there is reasonable doubt that he wrongly believed that the complainant consented to a sexual act, even if that belief was unreasonable.
A subjective test is currently used by the courts when determining whether there was intent on the part of the accused. Therefore, the less progressive the accused’s views are about consent, the more likely he is to be acquitted.
We argue that 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, to equality (section 9), dignity (section 10), privacy (section 14), bodily and psychological integrity (section 12(2)), and freedom and security of the person (section 12(1)).
We are asking that the Court declare certain provisions of the Sexual Offences Act unconstitutional, and to declare it an invalid defence to rely on a subjective belief that the complainant was consenting to the sexual conduct in question, unless the accused took all reasonable steps to ascertain that consent.
In response to some of the arguments raised by the Minister of Justice in opposition to our application, we argue the following:
The application of dolus eventualis, which establishes the foreseeability of a crime, is not a solution as that too requires the application of a subjective test, and not an objective or reasonableness test.
The Minister suggests that changing the test for intention from those subjectively held by the accused to an objective existence of consent reverses the burden of proof onto the accused, thereby affecting his fair trial rights. However, the accused would remain entitled to raise the defence of consent but would simply be required to do so reasonably where all objective circumstances are taken into account.
Minister of Justice's Heads of Argument in the High Court
The Minister of Justice is the only respondent, out of the three government officials cited in the application, that has responded, and is opposing our application on the following grounds:
The Minister acknowledges that rape infringes on the rights to equality, dignity, privacy, bodily and psychological integrity, and freedom and security of the person, but says that the application of the subjective test in our law does not limit or infringe upon these rights, and that, if it does, it is reasonable or justifiable.
The Minister argues that it is not possible for rape myths and stereotypes to be entrenched in our legal system as the Court is required to interpret the law, and its application of the subjective test, in line with the Constitution.
The Minister contends that the foreign jurisdictions which have adopted the objective or reasonableness test for intent are dissimilar to South Africa, and are therefore not comparable, because they are homogenous societies whereas we are a heterogeneous society.
The Minister argues that applying an objective or reasonableness test, when determining the accused’s intention, reverses the burden of proof on to the accused, and reduces the burden of proof from beyond a reasonable doubt to negligence, which unjustifiably infringes on the accused’s fair trial rights.
Some interesting statements and points made by the Minister of Justice:
The Minister initially stated under oath that this litigation was driven by The Embrace Project’s “ego towards men” and that “[we] are using [our] emotions to persuade the Court to declare unconstitutional an Act which is in line with the Constitution”.
The Minister later apologised for his misogynistic statements made on oath, and listed socio-economic circumstances, culture, patriarchy and religion as factors contributing to the scourge of GBVF.
CALS' Heads of Argument in the High Court
The Centre for Applied Legal Studied applied to intervene in our application as a third applicant, and is asking the court for the following:
To remove the requirement of consent as an element of sexual offences, both in terms of common law as well as in terms of the Sexual Offences Act. In other words, the relief sought by CALS asks the court to remove the need to prove an absence of consent when proving that a sexual offence was committed. CALS is aiming to have consent reassigned to a justification rather than a definitional element.
The retrospective criminalisation of conduct which was not criminalised before the court’s order. In other words, for cases that have been tried already, or are currently being tried, those should then be retried based on this new relief.
In their application CALS called out the Minister's response to The Embrace Project's application, calling it reprehensible, unprofessional and sexist.
The Minister opposes the relief sought by CALS on the basis that the commission of sexual conduct in and of itself is not a crime, but that the perversion of it – its commission without the consent of the other person – is. The Minister suggests that CALS' requested relief would make all sexual conduct prima facie (on the face of it) a crime unless it can be proven that consent was given.
The Embrace Project welcomes the intervention application set out by CALS.
Amicus Curiae's Heads of Argument in the High Court
The Centre for Human Rights and the Psycological Society of South Africa have joined the application as 'friends of the Court', providing the court with their expert views. Their submission outlines three key findings in favour of a change in the law:
Victims and survivors may experience various peri-traumatic responses to sexual assault.
Peri-traumatic responses to rape are hard-wired and neurobiological which can incapacitate victims and survivors. This can leave them unable to articulate verbal or behavioural responses during a rape. Research has found that compared to victims of crimes such as robbery and assault, it has been found that a higher percentage of rape survivors employed non-physically active behaviour responses.
The defence of mistaken belief (when consent is believed to have been given, even if it would be unreasonable for an accused person to have reached this conclusion) has evolved to replace the "resistance requirement" which has been removed from our law. The use of mistaken belief is more likely to be used where victims and survivors have exhibited more "passive" peri-traumatic responses to rape.
The amici argue that if we are to continue with South Africa's current stance in our law, we would ignore the well-established psychological findings on peri-traumatic responses. There is a pertinent need to consider and incorporate peri-traumatic responses and the resultant effect on ability to communicate consent or non-consent, even where the defence of mistaken belief is raised in our law.