No more loopholes for sexual perpetrators

THERE will no longer be a way out for some sexual perpetrators in claiming that they believed the victim consented to the act, as the Gauteng High Court, Pretoria, declared sections of the law, which previously provided this loophole, unconstitutional.

The court found sections of the Sexual Offences Act, as amended, to be invalid.

This is to the extent that the Act does not criminalise sexual violence where the perpetrator wrongly and unreasonably believed that the complainant consented to the conduct in question, therefore enabling the accused to successfully avoid conviction on the grounds of the subjective belief that consent was given.

This judgment followed a challenge by the Embrace Project, the Centre for Applied Legal Studies - which was an intervening party - and a rape survivor to what they called problematic definitions of consent and rape in the amended Act.

They said the definition made it difficult for rape victims to get justice as the perpetrator could use the law as a defence.

The Centre for Applied Legal Studies asked the court to remove the definition of consent as an element of sexual offences in terms of common law and the Act.

It argued that the inclusion of consent as a definitional element is an unreasonable limitation of rights to the individual (predominantly women, gender-diverse individuals and children) to equality before the law as well as limitations on their intersecting rights to dignity and to be free from all forms of violence.

The rape survivor’s attacker was acquitted as a result of the now former legal position of the subjective belief test regarding the requirement of consent in rape cases.

The Act ignores the possibility of an objective test for fault, in respect of sexual offences defined by lack of consent. Consequently, an unreasonable belief in the presence of consent is a defence.

The State bears the high burden to prove that the accused's claim that he was under the impression that consent had been given is not reasonably possibly true.

This was borne out in the case of Loyiso Coko who at first got away with rape. He and his victim only agreed on oral sex, but the accused performed penile-vaginal sex on the complainant and claimed that the complainant's body language gave tacit consent to penetration.

The complainant contended that she asked him to stop because he was hurting her, but the accused claimed that he took that to mean that he must stop momentarily for her to become comfortable.

The accused was convicted of rape by the Magistrate court, but on appeal, he was acquitted because his version was reasonable and possibly true, although his explanation was improbable. The Supreme Court of Appeal later again reinstated the conviction.

The victim in this present application was raped in 2018 by a man she met through an online dating site. The man invited her to his home for a party, only to find out when she arrived that there was never a party, she was the only guest. The court acquitted the accused on the basis that the victim had not objectively consented to the accused's penile penetration, but she neither physically resisted nor loudly protested.

The court accepted that he had subjectively believed that there was consent.

The applicants in this challenge against the Act, submitted that the State has to take positive and effective measures to combat sexual violence in all its forms, including where the target's right to withhold consent has been simply ignored rather than intentionally violated.

The court was told that the State must prohibit, punish and deter it. The applicants argued that this duty is buttressed by international law.

The applicants further argued that the State has failed to take necessary and effective measures to respect, protect, promote and fulfil the fundamental rights of women and children.

Judge Selby Baqwa found that by enabling defence of the unreasonable believe in consent, the Act violates the rights of victims and survivors to, among others, equality and dignity, and the right to be free of all forms of violence.

Balancing the competing interests of victims with the rights of an accused to a fair trial will not be prejudiced if the required standard changes to an objective test, Judge Selby Baqwa said.

All that the suggested amendment to the law seems to suggest is is a test that will require a perpetrator to explain the objective steps he took to establish the presence or absence of consent prior to the alleged rape, the judge said.