The Constitutional Court on Thursday heard a landmark case that could change how rape and sexual offences are prosecuted in South Africa.
The case was brought by the nonprofit Embrace Project and rape survivor Inge Holzträger who argue that the law makes it too easy for accused rapists to escape conviction.
At the centre of the case is a section of the Sexual Offences Act which allows an accused to claim they believed the victim consented to sex — even if that belief was unreasonable.
Holzträger was raped in 2018 by a man she met online. She told the court she had “frozen” during the assault and could not fight back or speak. The man was acquitted because the court accepted that he believed she had consented.
Embrace wants the law to force people to take reasonable steps to make sure a partner has agreed to sex. This could include simply asking, “Are you OK with this?”
In court, advocate Nasreen Rajab-Budlender SC, representing Embrace, said: “We are not asking the court to fix the entire problem. But this case is about how the law works. It will change behaviour because it will require people to take steps to determine consent.”
She added that consent should be a conversation, not something assumed.
Last year the Pretoria high court agreed with Embrace and declared parts of the Sexual Offences Act unconstitutional. It ordered that people must take reasonable steps to check for consent until parliament fixes the law.
Rape is perhaps the most horrific and dehumanising violation and the way the law is framed undermines the rights of victims and survivors
— Embrace Project
Now the ConCourt must confirm that order to make it permanent.
The Centre for Applied Legal Studies (CALS) is also involved, but it wants the court to go further. CALS argues that rape should be defined as a violent act of coercion, not just as sex without consent.
But Embrace says CALS’ proposal would not improve things for survivors and that the current consent-based model is considered international best practice.
The government has chosen not to oppose either side and says it will follow whatever the ConCourt decides. But it warned that forcing accused people to show how they got consent could limit their right to remain silent.
The state also asked for 36 months, instead of 18, to update the law if the ruling is confirmed.
If the Constitutional Court confirms the high court’s ruling, it would be the first time in South Africa that the law requires accused people to prove they took reasonable steps to ensure consent.
Embrace said this change is vital because survivors often face an unfair battle in court: “Rape is perhaps the most horrific and dehumanising violation and the way the law is framed undermines the rights of victims and survivors.”
Judgment has been reserved.
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