The issue of ‘consent’ in sexual offences, including rape, will be in the spotlight in the Constitutional Court this week.

According to GroundUp, the justices, hearing the arguments, have to grapple with how far to take the law when it comes to perpetrators alleging, they believed that the victims had said, or had indicated through their actions or inactions, that they were saying, ‘yes’.

In terms of the Sexual Offences and Related Matters Act, someone charged with rape can avoid conviction if they can show it is reasonably possible that they believed that the complainant had consented to sex.

This controversial defence does not require showing that consent was actually given.

Last year, Gauteng High Court (Pretoria) Judge Selby Baqwa ruled that certain provisions in the Act were unconstitutional because they failed to protect victims against legal bias in favour of perpetrators. 

If the apex court agrees with Baqwa’s findings, it will mean that a person accused of a sexual offence must prove that he or she took 'objectively reasonable steps to ascertain that the complainant consented to sexual conduct’.

That matter was brought by the Embrace Project with the support of Inge Holztrager who was raped after being lured to a ‘party’.

Her attacker was acquitted.

The court found that while she had not consented, the state had not proved, beyond a reasonable doubt, that the rapist had subjectively known this at the time.

The Embrace Project now wants the Constitutional Court to confirm Baqwa’s ruling.

The Minister of Justice & Constitutional Development opposed the High Court application but has elected to abide by the decision of the apex court.

However, the Centre for Applied Legal Studies (CALS) believes that the proposed changes to the law do not go far enough and they want the words ‘without consent’ taken out of the definitions entirely.

These arguments were dismissed by Baqwa. 

CALS will appeal his ruling in the Constitutional Court on Thursday, reports GroundUp.

In no other crime, such as robbery or hijacking, does the response of the victim play such a large role in the definition of the crime. It shifts the focus to the conduct of the victim who, through the prosecutor, must prove that he or she did not consent, rather than the other way round. 

This, CALS says, ‘reinforces patriarchal assumptions about sexuality which undermine both dignity and equality’.

It submits that the definition created a distinction between victims of gender-based violence and other crimes and thus requires ‘constitutional scrutiny’.

Full GroundUp report