Landmark Case: High Court to Reconsider Definitions of Consent, Rape in Sexual Offences Act

A groundbreaking case, poised to deeply probe the very definitions of consent and rape in South Africa's Sexual Offences Act, has recently secured a powerful ally: the Centre for Applied Legal Studies (CALS), based at the University of the Witwatersrand.

In a formative move, CALS applied to the High Court in Pretoria to join the consequential lawsuit, first launched by the Embrace Project and an individual rape survivor in November of last year. Their litigation opposes what they identify as problematic provisions within the Criminal Law (Sexual Offences and Related Matters) Act, especially sections failing to incriminate sexual violations where the aggressor irrationally or unreasonably believes the victim consented.

The broader attention towards this matter was initially ignited due to an upsetting verdict emanating from the Eastern Cape High Court in October 2021. A rape conviction against Loyiso Coko was reversed, even though the victim had openly refused to engage in intercourse. The court erroneously interpreted her consent to kissing as tacit understanding for sex, a ruling which has understandably sparked widespread indignation.

CALS has offered invaluable assistance by vowing to represent Africa's Initiative for Strategic Litigation during the imminent appeal proceedings in South Africa's Supreme Court of Appeal, to be held on November 14.

Their compelling arguments question the court's decision, highlighting the intrinsic danger of equating unfounded beliefs, often steeped in harmful stereotypes around sexual violence, with clear and affirmative consent. In a bid to address these imbalances, CALS, alongside the Embrace Project and the individual rape survivor, implore the Gauteng High Court, Pretoria to rule sections of the existing legislation as unconstitutional.

They emphasize that sexual offenses should not be defined based on the lack of consent. As explained by Dr Sheena Swemmer, the head of Gender Justice at CALS, such definitions unduly burden victims and survivors. The present framework is inherently discriminatory and leads to higher attrition rates in sexual offence cases, a pressing concern that needs immediate redress.

To aid future survivors, CALS stands ready to argue for these changes to apply retrospectively, even to old cases prior to the 2007 legislation.