Pretoria - The Minister of Justice and Correctional Services is opposing the constitutional challenge launched by a non-profit organisation against the definitions of rape and consensual sex as contained in the law.
The organisation said that at present the definition made it difficult for rape victims to obtain justice.
The Embrace Project is challenging what it calls problematic definitions of consent and rape in the Sexual Offences Act, as recently amended.
The NPO earlier filed papers in the Gauteng High Court, Pretoria, against the government. The organisation said that as the law stood, it was insufficient to prove that an accused person committed an act of sexual penetration without the complainant’s consent.
But in its opposing papers, the office of the minister said if the court ordered in favour of the applicant, it would revoke an accused’s presumption of innocence.
Leonard Sebelemetja, chief director of legislative development in the office of Minister Ronald Lamola, said in an affidavit filed that the constitutional challenge went to the heart of the foundational principles of criminal law and the elements of crime, particularly intention.
He said the effect of the order sought would remove the constitutional rights of an accused to be presumed innocent until proven guilty. He said it would also lower the standard of proof in criminal cases from proof of guilt of an accused person beyond reasonable doubt to negligence, as the applicants purported to do.
The Embrace Project maintained that the act at present was insufficient to prove that an accused committed an act of sexual penetration without the complainant’s consent.
“This test is not only regressive, but has proven to be an almost insurmountable barrier to the conviction of accused persons who have been found to have committed acts of sexual penetration without the consent of the complainants.
“This is where the prosecution has been unable to prove that the accused subjectively intended to rape the complainant,” the Embrace Project said.
They are attacking the act to the extent that these provisions do not criminalise sexual violence where the perpetrator wrongly and unreasonably believed that the complainant was consenting to sex.
The Centre for Applied Legal Studies meanwhile also filed court papers in its bid to enter the constitutional challenge which has important implications for how sexual offences are prosecuted.
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 Coko, he interpreted this as tacit consent to intercourse. This finding prompted public outrage and is subject to an appeal.
The centre’s Lee-Ann Bruce said 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.”
She explained that the burden of proof was 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.”
The centre 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,” Bruce said.
No date has yet been set for the hearing.
Pretoria News