A summary: our confirmation application to the Constitutional Court
The Embrace Project's Confirmation application to the Constitutional Court
On 21 October 2024, The Embrace Project and Inge Holztrager filed our application for confirmation of the Pretoria High Court Judgment granted in our favour, with the Constitutional Court. The Constitutional Court must confirm the Pretoria High Court’s declaration of constitutional invalidity, and the remedy that it ordered, before the law is considered to have been changed. This is the last step before total victory. The Embrace Project and Inge Holztrager have asked the Constitutional Court to confirm the following:
That 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, invalidand inconsistent with the Constitution as these provisions do not criminalise sexual violence where a perpetrator wrongly and unreasonably believed that the complainant was consenting to the conduct in question. Further, that these provisions, as they stand, allow for a defence against a charge of sexual violence where there is no reasonable objective belief in consent.
That the declaration of invalidity is suspended for a period of 18 months to allow for the defects in the Sexual Offences Act to be remedied by Parliament.
That during the 18 month period, the following words shall be read into the Act:
‘56(1A) Whenever an accused person is charged with an offence under section 3,4,5,6,7,8,9 or 11A it is not a valid defence for that accused person to rely on a subjective belief that the complainant was consenting to the conduct in question, unless the accused took objectively reasonable steps to ascertain that the complainant consented to the sexual conduct in question.’
That the declaration of invalidity and reading in will only come into effect from the date of the Constitutional Court’s order and will have no effect on the conduct that took place before the date of the order. This is in line with a very important legal principle that does not allow for the retrospective application of a change in criminal law.
That should Parliament fail to remedy the defects in the Sexual Offences Act within the period of suspension of 18 months, the interim reading-in will become final.
CALS' appeal to the Constitutional Court
Also on 21 October 2024, right after we filed our confirmation application, CALS filed an appeal with the Constitutional Court against the whole judgment and order that was granted in favour of The Embrace Project and Inge Holztrager.
Background:
On 18 November 2022, The Embrace Project and Inge Holztrager brought an application before the Pretoria High Court challenging the constitutionality of provisions criminalising consent-based sexual offences, like rape, in the Sexual Offences Act. The application was brought against the Minister of Justice and Correctional Services, and two others.
In February 2023, the Centre for Applied Legal Studies (CALS) brought an application to intervene in The Embrace Project and Inge Holztrager’s case as a 3rd applicant. They sought a different relief to The Embrace Project and Inge Holztrager.
The Embrace Project and Inge Holztrager’s application focused on the element of criminal intent, and its effect on consent, in sexual offences. We asked that the Court order that the Sexual Offences Act moves away from the application of a subjective test for determining criminal intent (which allowed for an unreasonable mistaken belief in consent as a defence). We argued that that created an almost insurmountable barrier to convictions. We asked that the Court place a positive obligation on accused persons to take “objectively reasonable steps to ascertain that the complainant consented to the sexual conduct in question.”
CALS, on the other hand, argued for the removal of consent in its entirety as a definitional element of sexual offences. In other words, an absence of consent would no longer have to be proven by the state in order to prove the commission of a sexual offence. An accused person would be able to raise the existence of consent as a defence only.
Both applications were opposed by the Minister of Justice. They were argued before the Pretoria High Court on 22 and 23 July 2024, and judgment was handed down on 30 September 2024 in favour of The Embrace Project and Inge Holztrager, granting us the exact relief that we sought.
CALS’ application, and the different relief that it sought, was dismissed by the Pretoria High Court, on the basis that the remedy sought by CALS would require South Africa’s sexual offences laws to change from a consent-based model to a coercion-based model, which was a policy decision that fell within the ambit of Parliament and not the Court. The Court also held that the consent-based model that South Africa currently had accorded with international best practice, and that changing it would amount to a breach of the doctrine of separation of powers.
CALS’s reasons for appealing the Pretoria High Court judgment (known as grounds of appeal) are:
That there was no meaningful consideration of CALS’ application and its arguments by the Pretoria High Court.
That the Pretoria High Court did not consider the evidence of the legal expert that CALS put forward.
That the Pretoria High Court made a mistake when deciding that it would be breaching the doctrine of separation of powers were it to have granted CALS’ remedy, because courts have an obligation to prevent a violation of the Constitution.
The Embrace Project's opposition to CALS' appeal
On 4 November 2024, we filed our opposition to CALS’ appeal of the Pretoria High Court judgment and order granted in our favour. The reasons for our opposition are the following:
We argue that the relief sought by CALS, which would require the accused to raise the presence of consent as a defence, would not change the law’s application of a subjective test when determining whether or not the accused’s defence, regarding the presence of consent, was ‘reasonably possibly true’. Victims and survivors would therefore be left in the same position as they are now where an accused person can get away with an unreasonable mistaken belief in consent.
We argue that CALS did not do enough to explain why the Court should breach the doctrine of separation of powers, which is a high watermark, when the relief sought by The Embrace Project and Inge Holztrager could remedy the constitutional invalidity without breaching the separation of power.
We argue that it is not clear whether the evidence of the legal expert put forward by CALS was admitted by the Pretoria High Court because, in legal proceedings, the court is considered to be the only expert on the law.
According to the United Nations, a consent-based sexual offences model is considered to be international best practice. We argue that no evidence was put forward by CALS to show that conviction rates in a coercion-based model are higher than those in a consent-based model.
The Minister of Justice has, thus far, not appealed the judgment granted in our favour - only CALS as. We have therefore asked that the Constitutional Court consolidate our application for confirmation and CALS’ appeal so that both applications may be heard together. We now await a hearing date from the Constitutional Court before any change in the Sexual Offences Act can be confirmed.
THE JUDGEMENT
THE JUDGEMENT
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.”
HOW IT ALL STARTED
HOW IT ALL STARTED
Constitutionality of Rape and Consent Definitions
In Sexual Offences Act Legally Challenged
A ground breaking constitutional challenge 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.