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

‘The Court is convinced that if consent had to be evaluated objectively in this [rape] case, the reasonable man in the same position as the accused would not have assumed or accepted in the circumstances that he had consent, and would have done more to ensure that consent was indeed present.”

These are the words of a Magistrate Labuschagne which prompted a rape survivor known as “IH” to reach out to anti-gender-based violence and femicide NPO, The Embrace Project, in 2021, when her perpetrator was acquitted despite the fact that a reasonable person would have come to the conclusion that IH had been raped.

In IH’s case, like countless other victims of sexual assault, the court found that:

“The fact that the complainant did not signify her opposition to the acts in any way makes it impossible for the Court to be satisfied that the accused subjectively knew that he did not have consent to proceed with the acts.” – S v Amos

This, despite the fact that resistance to sexual assault was removed as a requirement from our law ages ago. However, it appears that instead, the requirement has merely been subsumed into two other existing legal elements for proving rape, namely intent and consent.

Without some form of resistance, whether verbal or physical, as the court said in IH’s case, it “makes it impossible for the court to be satisfied that the accused subjectively knew that he did not have consent to proceed with the acts”, because the court is unable to take account of objective facts and circumstances when determining whether or not an accused person knew that consent was absent.

As a result, a number of jurisdictions around the world have moved away from South Africa’s current legal construct of rape and sexual offences, shifting the court’s focus away from the establishment of a lack of consent and rather to focus on the existence of consent.

The shift in focus from a rape survivor’s behaviour at the time of the assault to that of the accused’s is a much-needed reform in our law – especially given the abysmal conviction rates in comparison with the number of reported rapes, which sits at less than 1%.

Read more: Supreme Court of Appeal overturns high court rape ruling that foreplay implies ‘tacit consent’

After IH pointed out the injustice that she suffered at the behest of the subjectivity of our criminal law favouring the accused, The Embrace Project launched a groundbreaking constitutional challenge against a number of provisions in the Sexual Offences Act in 2022.

Almost two years since its institution, the application, which is being opposed by the minister of justice and constitutional development, will finally be heard on 22 and 23 July 2024 in the Pretoria High Court.

In this application, The Embrace Project seeks to remove the requirement that subjective intent on the part of the accused, especially when it is unreasonable, must exist in order to obtain a rape conviction.

The Embrace Project asks the court to read into the problematic provisions a requirement that an accused person must instead take “all reasonable steps to ascertain that the complainant consented” to the sexual act in question.

Read more: Gaps in South Africa’s rape laws could be why survivors are not getting justice

This immediately shifts the focus from the complainant’s behaviour to the accused’s behaviour, and requires that it be established that consent existed as opposed to establishing that it did not.

These differences will ensure that perpetrators are no longer encouraged by South African law to avoid clarifying whether consent was given or not. A lack of clarity and the existence of uncertainty around the absence of consent has helped accused persons to avoid conviction to date.

The law’s reliance on the subjective intent of an accused person who claims that he did not understand there to be an absence of consent is almost impossible to rebut when objective facts and circumstances cannot be considered by the court.

This change in the law will require that an accused person prove that he obtained the necessary consent from the complainant without the court having to concern itself with the question of whether or not the accused person subjectively understood the complainant to be an unwilling participant. For the first time the resistance requirement will truly no longer have a place in our law.

It is yet to be seen, however, whether the court will find in The Embrace Project’s favour, especially given that the minister of justice is opposing this application on the basis that this reasonableness requirement which is sought to be introduced allegedly infringes on an accused person’s fair trial rights.

Read more: Landmark case will challenge the ‘consent’ requirement in sexual offences cases

According to the minister, South Africa’s rape and sexual offence laws should remain as is because to introduce an objective test and a requirement where the accused person must take reasonable steps to ascertain that consent was given, would result in a reverse onus of proof on the accused person and it would lower the standard of proof in a criminal trial.

It is unfortunate that, in addition to these arguments, the minister also initially stated under oath that this litigation was driven by The Embrace Project’s “ego towards men” and that “[The Embrace Project and IH] are using their emotions to persuade the Court to declare unconstitutional an Act which is in line with the Constitution”.

Through The Embrace Project case, we aim to not only change the law but also transform society’s and the government’s understanding and respect for consent, ensuring a future where rape myths have no place. DM

Lee-Anne Germanos Manuel is director and co-founder of The Embrace Project.