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Challenging consent as an element of sexual offences

- Lee-Anne Bruce

CALS has applied to join a case challenging mistaken belief in consent and the definition of sexual offences in our law

The Centre for Applied Legal Studies, based at Wits University, is applying to join a case before the High Court which has important implications for how sexual offences are prosecuted. The matter was first brought in November last year by the Embrace Project and an individual rape survivor. The applicants seek to challenge sections of the Criminal Law (Sexual Offences and Related Matters) Act which fail to criminalise sexual violence where the perpetrator unreasonably believed the complainant consented.

In October 2021, the Eastern Cape High Court handed down judgment in an appeal by Loyiso Coko who had been found guilty of raping his then partner by a lower court. The order overturning the rape conviction found that even though the complainant explicitly said “no” to having sex with the accused, he still mistakenly believed that she had consented. The court found that when the complainant consented to kissing Mr Coko, he interpreted this as tacit consent to intercourse. This finding prompted public outrage and is currently being appealed by the National Prosecuting Authority.

The ruling drew attention to the way in which current legislation treats rape and other sexual offences. Unlike some other crimes where consent can be used as a defence, sexual offences are defined as unlawful and intentional acts of sexual violence without consent. The burden of proof is on the prosecution to prove all the elements of this crime beyond a reasonable doubt, including that the accused did not mistakenly believe they had the consent of the complainant. This means that, under the law as it stands, a person accused of a sexual offence can claim they believed the complainant consented even if that belief is unreasonable or irrational. Many of these “beliefs” perpetuate myths and stereotypes about sexual violence, including that victims must resist sexual violation by force.

In response to the judgment in Coko v S and other similar cases relying on mistaken belief of consent, the Embrace Project and an individual rape survivor approached the Gauteng High Court for relief. Their application asks the Court to declare portions of the legislation governing sexual offences unconstitutional to the extent that they allow a perpetrator to claim a mistaken belief in consent which is clearly wrong and unreasonable.

CALS has applied to join the matter in the public interest as a third applicant to support the other applicants’ claims. We argue that the issue is not with the existence of the defence of mistaken belief in consent, but rather with having rape and other sexual offences defined in terms of a lack of consent. We thus contend that the current definition places a limitation on a number of intersecting rights of victims and survivors and should be deemed unconstitutional.

We further make the case that this change should apply not only to matters prosecuted under the Criminal Law (Sexual Offences and Related Matters) Act, but also common law crimes of rape and sexual assault from before the Act came into effect in 2007. Victims and survivors may still come forward at any time to report sexual offences. In addition, we hope to present evidence that retaining consent as a definitional element of sexual offences limits survivors’ rights to equality, dignity and access to courts.

“The current definitions of rape and other sexual offences place an added burden on the state, but also on complainants to show that they did not consent,” says Dr Sheena Swemmer, head of Gender Justice at CALS. “In this situation, the complainants’ actions become the court’s focus rather than the accused’s actions. This process puts victims and survivors on trial, expecting them to demonstrate how well they resisted the accused, buying into harmful rape myths and stereotypes.”

“This constitutes indirect discrimination,” agrees CALS attorney Basetsana Koitsioe. “We have a situation in our law where crimes which primarily affect women and gender minorities face an additional hurdle when being prosecuted. This contributes to the high levels of attrition we see in sexual offences, where only a small portion of the cases that are reported result in a conviction. We cannot allow this to continue.”

CALS is represented by in-house counsel Jatheen Bhima and Letlhogonolo Mokgoroane.

Read our founding papers in the matter here.

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