Sexual Offences Will Never Be The Same Again
On 30 September 2024, the Gauteng Division of the High Court in Pretoria declared 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…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 (sic) in consent.” (Own emphasis) – The Embrace Project v Minister of Justice and Correctional Services
The above application, which was brought by The Embrace Project NPC, an anti-gender-based violence and femicide advocacy organisation, and a rape survivor, Inge Holzträger, in November 2022, challenged the constitutionality of certain provisions relating to consent-based sexual offences in the Criminal Law (Sexual Offences and Related Matters) Act 32 of 2007 (“Sexual Offences Act”). The constitutional challenge focused on the element of criminal intent, and its effect on consent, in relation to each of the impugned provisions.
The main argument of the applicants was that the application of a subjective test by the courts when determining whether or not an accused person had intended to commit the sexual offence in question created an almost insurmountable barrier to conviction when there was an absence of resistance by the complainant – which is often the case, particularly in intimate partner sexual violence.
The effect of the use of the subjective test for intent was such that an accused person would often be acquitted, even if a court found, in the case of rape, that there was unlawful sexual penetration committed by the accused without the consent of the complainant. The reason for the acquittal was based on a very low threshold for measuring a lack of intent to commit a sexual offence, even if their belief in the existence of consent was unreasonable, as long as their version was ‘reasonably possibly true’.
It also meant that the more perverse the accused’s views were on consent, the higher the likelihood was that they would be acquitted, which resulted in the law inadvertently perpetuating rape myths and stereotypes.
It was on these bases that the applicants challenged the constitutionality of the impugned provisions in the Sexual Offences Act, and asked that the Court place a positive obligation on the accused to take “objectively reasonable steps” to ascertain whether or not consent was given, as opposed to assuming so unless an objection was raised.
“This judgment is groundbreaking because it finally brings South Africa in step with the latest jurisprudence and studies on sexual offences.”
The High Court in Pretoria heard the application on 22 and 23 July 2024. It was opposed solely by the Minister of Justice and Correctional Services, with the President and the Minister of Women, Youth and Persons with Disabilities having been included in the proceedings. The Minister based her opposition primarily on the argument that the law, as it was, sufficiently protected victims of sexual violence and that the relief sought by the applicants would place a reverse onus on the accused to prove their innocence, and thereby infringe upon an accused person’s right to a fair trial. The High Court dismissed these arguments out of hand and, in the judgment, found that the Minister had failed to put up a case.
The Centre for Applied Legal Studies (CALS) also applied to intervene as a third applicant in 2023, seeking a different relief to that of The Embrace Project and Ms Holzträger. CALS argued for the removal of consent as a definitional element of sexual offences. If granted, this would mean that 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 justification only.
The High Court dismissed CALS’ application as it found that its remedy would require South Africa’s sexual offences laws to change from a consent-based model to a coercion-based model, which is a policy decision falling within the ambit of Parliament. The court held that it could not grant such relief when a consent-based model accords with international best practice, and when changing it would amount to a breach of the doctrine of separation of powers.
The Centre for Human Rights and the Psychological Society of South Africa joined the proceedings as amici curiae, providing invaluable scientific evidence on the common behavioural responses of victims during a sexual assault. The amici cited a Swedish study which found that tonic immobility (freezing) was the common response in 70% of rape victims. This highlighted just how out of step the law was with reality by requiring that victims display an outward show of resistance in order to secure a sexual offence conviction.
Judge Selby Baqwa therefore found that by enabling a defence of unreasonable belief in consent, the Sexual Offences Act violated a number of fundamental constitutional rights of sexual violence victims and survivors as set out in The Embrace Project and Ms Holzträger’s papers.
To remedy this position, in addition to the declaration of constitutional invalidity, Judge Baqwa ordered the reading-in of the following wording into section 56(1A) of the Sexual Offences Act, as requested by The Embrace Project and Ms Holzträger:
“Whenever an accused person is charged with an offence under section 3, 4, 5, 6, 7, 8, 9, 11A [of the Criminal Law (Sexual Offences and Related Matters) Act 32 of 2007], 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.” (Own emphasis)
This judgment is groundbreaking because it finally brings South Africa in step with the latest jurisprudence and studies on sexual offences. That is especially needed in a country that suffers with unacceptably high rates of sexual violence. The rape conviction rate in South Africa currently sits at 1% of the number of rape cases reported to the police. So, the effect of this change in the law will hopefully be to increase the conviction rate of sexual offences, as well as to increase the number of sexual offences case brought to trial, which will have a compounded positive effect on conviction rates.
It is now only a matter of the Constitutional Court confirming this declaration of invalidity and the lives of all South Africans, particularly victims of sexual offences, will change forever.
