‘Not a dry eye in the room’ as court rules parts of Sexual Offences Act unconstitutional

The Gauteng Division of the High Court in Pretoria handed down a judgment on 30 September that declared certain provisions in the Criminal Law (Sexual Offences and Related Matters) Act to be unconstitutional and invalid, as they do not criminalise sexual violence where the perpetrator wrongly and unreasonably believes that the complainant was consenting to the sexual act.

The Embrace Project, a nonprofit that combats gender-based violence (GBV) in South Africa, took the constitutional challenge to court in November 2022 and the matter was heard in July of this year.

The application was opposed by the minister of justice and correctional services — the first respondent — together with the minister in the Presidency for women, youth and persons with disabilities, and the President of South Africa, the second and third respondents.

The high court order found 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 to be unconstitutional.

Lee-Anne Germanos, the co-founder and co-director of the Embrace Project, said, “It’s been emotional… There was not a dry eye in the room, really, because of the long road, but also because of the significance of this judgment.

“I’ve had friends who … are survivors [of sexual violence] themselves, whose cases were either not heard or not prosecuted, and they have been very emotional about a judgment that will finally make a difference.

“In most of their cases, the issue has been the very thing that we’ve now asked the high court … to overturn, which is intent.”

Read more: Nonprofit Embrace Project takes on justice department over ‘problematic’ definition of rape in Sexual Offences Act

Problem of intent

The Sexual Offences Act defines rape as a situation in which a person “unlawfully and intentionally commits an act of sexual penetration with a complainant (‘B’), without the consent of B”.

The problem with this definition, according to the Embrace Project, is that it means it is not enough to prove in court that a person accused of rape committed an act of sexual penetration without the victim’s consent. It is also necessary to prove that the accused, in their own subjective state of mind, intended to rape the complainant.

In the high court judgment, Judge Selby Baqwa said, “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.”

In its constitutional challenge, the Embrace Project was joined by Inge Holzträger, the second applicant and a survivor of rape.

The accused in Holzträger’s case was acquitted. While the court acknowledged that she had not consented and an unlawful act had taken place, it was not satisfied that under the subjective test for intent, the perpetrator’s intent to rape had been proven beyond a reasonable doubt.

“It’s such a terrible thing that happened and I kept saying from the beginning that I need and I want something positive to come out of it. And at the time I wasn’t sure what it was. Then Lee-Anne [Germanos] and I started speaking and it became more clear that this is the journey,” said Holzträger on what motivated her to pursue the constitutional challenge.

Germanos emphasised that Holzträger had been “incredible” in lending her voice to the pushback against the problematic provisions in the Sexual Offences Act.

“First of all, she recognised the injustice in her case… I think just identifying that and being willing to raise your voice is super brave. But in addition, she also knew that if she came forward with this matter and we pushed forward with it, it was never going to change the outcome of her rape case. So, when she decided to go ahead, she was really doing it to ensure that the lives of other victims and survivors would change,” said Germanos.

Holzträger said that it felt good to have the high court rule in their favour, as it validated their efforts to highlight the unconstitutionality of the existing legislation.

Read more: High court hears key case on removing consent onus from sexual offences trials

The way forward

The high court’s ruling will need to be confirmed in the Constitutional Court before the problematic provisions in the Sexual Offences Act become inoperable. The Embrace Project will submit its application for confirmation in the coming weeks, after which Germanos estimates it will take about two years for the Constitutional Court to hand down a judgment.

Should this judgment confirm the high court’s ruling, Parliament will have 18 months from the date it’s handed down to remedy the constitutional defects in the legislation.

Germanos expressed the hope that once the legislation changed and a more reasonable test was put in place for proving intent, it would remove a major barrier to getting convictions in cases of sexual violence. This in turn could increase the number of these cases the National Prosecuting Authority elected to take to court, she continued.

“The number of [rape] cases brought to court in comparison to the number of complaints submitted with the police are hugely different,” she said.

Reflecting on her message for other survivors of sexual violence, Holzträger said that although seeking justice through the courts was not an easy process, it pushed her to confront and deal with the trauma of what happened to her.

“It’s important to know that you’re not alone, and I can guarantee you there’s so many people in your close circle that have been through the same thing that you have. You just don’t know it yet. The biggest thing is that you need to find a support system, whether it be friends, family, survivors, a support group — but you can’t go at it alone,” she said.

Daily Maverick asked the Department of Justice and Correctional Services for comment and it will be added if it becomes available. DM