Lack of physical resistance, no verbal denial does not mean consent is given in rape cases, court orders

The Pretoria high court declared sections of the Criminal Law (Sexual Offences and Related Matters) Amendment Act were invalid

The argument put forward by a rape accused relying on subjective consent, that is believing the victim gave consent by not expressly or physically denying the act, was found invalid on Monday, with the Pretoria high court declaring sections of the Criminal Law (Sexual Offences and Related Matters) Amendment Act unconstitutional.

The ruling comes after the NGO The Embrace Project, a rape survivor and the Centre for Applied Law approached the court to declare sections 3, 4, 5, 6, 7, 8 and 11A, read with section 1(2), of the act invalid. The Centre for Human Rights and the Psychological Society of Africa joined the case as amici curia.

They challenged the act for permitting the perpetrator to avoid conviction by raising the subjective test defence, where the perpetrator subjectively and unreasonably believed the victim consented to the act. This results in the acquittal of accused rapists, unless the state proved beyond reasonable doubt the accused’s subjective belief was incorrect.

In opposing the application, the respondents — the department of justice, the president and the department of women, youth and persons with disability — said the law protects and safeguards the rights of victims of sexual violence since it includes consent as an element of rape.

This was evident by the transformation of the law relating to sexual offences before the disputed provisions, such as a case where the court held the law on rape developed to such an extent that a husband can be charged for raping his wife and a boy child is capable of committing rape.

The respondents also argued that assessing the accused rapist's fault relies on a comprehensive examination of all relevant evidence to have accurate and reliable fact-finding. 

The second applicant, who brought the application in her capacity and in the public interest as an adult female student, is a victim of rape in which the Pretoria regional court acquitted the accused as a result of the legal position of the subjective belief test.

She was raped in 2018 by a man she met on an online dating site who invited her to his home for a party. On arrival, she found there was never a party and she was the only guest. She was raped that night. The court acquitted the accused on the basis that while she had not objectively consented to the accused, neither did she physically resist or loudly deny consent.

The applications submitted by the two amici curia highlighted the significance of incorporating psychological perspectives when assessing consent as an element of the crime of rape.

They submitted that victims experience peritraumatic responses to sexual assault which can happen during or immediately after the rape incident. During sexual assault, survivors may experience feelings of fear, paralysis, numbness and detachment, including passivity and extreme immobilisation.

While survivors of sexual assault may resist the perpetrator, a substantial number do not and this can be explained by several complex factors that affect how individuals communicate their willingness or unwillingness to participate in a sexual act or to withdraw consent either verbally or non-verbally.

Overall, the applicants argued the act is unconstitutional and invalid as it fails to accommodate the possibility of an objective test for fault when it comes to sexual offences.

The respondent argued, as justification for the infringement of a rape victim's constitutional rights, that the proposed amendment to challenge the act would reverse the onus and shift the burden of proof from the prosecution in regards to crucial elements of the crime, nothing could be further from the truth, the high court found.

Judge Selby Baqwa said: “The correct position is that there is no reverse onus and the onus remains where it belongs, namely on the state to prove its case beyond reasonable doubt. All the suggested amendment to the law seeks to suggest 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.”

Baqwa said balancing the interests of the victim and the rights of the accused to a fair trial will not be prejudiced in a prosecution if the required standard changes to an objective test rather than a subjective one. 

“In summary, is the essence of the objection by the respondent to the application and it fails to suggest sufficiently why the proposed amendment should not be granted and why it is not justifiable in an open and democratic society based on human dignity, equality and freedom and not in a closed authoritarian society based on the violations of human dignity, equality and freedom. 

“The fundamental principle of our justice system, which is to the effect that every person is presumed innocent until found guilty, is not challenged at all by the suggested amendment,” Baqwa said.

Noting the approach in many foreign countries, as submitted by the applicants about consent in sexual offences, it was clear many jurisdictions require the accused to ensure and ascertain that consent was given and not rely on a subjective reasonable belief that such consent was granted. These include countries such as England, Wales and Canada.

“Accordingly, South Africa will not be alone in adopting the objective test and require the accused to take reasonable steps to ensure and prove consent was attained.”

“Sections 3, 4, 5, 6, 7, 8, 9, read with section 1(2) of the Criminal Law (Sexual Offences and Related Matters) Act are declared unconstitutional, invalid and inconsistent with the constitution to the extent these provisions do not criminalise sexual violence where the perpetrator wrongly and unreasonably believed the complainant was consenting to the conduct in question, alternatively, to the extent that the provisions permit a defence against a charge of sexual violence where there is no reasonable objective belief in consent.”

The order has been suspended for 18 months to allow parliament to amend the constitutional defect. In that time the act should include that the disputed sections are not a valid defence for the accused person to rely on a subjective belief that the rape victim gave consent unless the accused took objectively reasonable steps to ensure the victim consented to the sexual conduct in question.

“The declaration of invalidity and reading in shall operate only with prospective effect from the date of this order and shall have no effect on conduct which took place before the date of the order.”

TimesLIVE