Applicants seek legal reform to fight GBV 

by | Aug 2, 2024 | News

Three applicants were in court seeking to reform the legal definition of rape and consent in South Africa in a bid to bolster GBV conviction rates. 

From July 22-23, 2024, ‘The Embrace Project’ (an NGO combatting GBV) alongside a GBV survivor appeared before the Gauteng Division of the High Court in Pretoria to present a Constitutional Challenge to the Sexual Offences Act, Act No 32 of 2007. 

They are challenging what they believe to be a regressive definition of consent within the act. As it currently stands, consent does not simply refer to a victim’s willingness (or lack of) to participate in sexual activity when determining whether to convict potential offenders.  

Rather, the intent of the accused is also considered through what is referred to as a ‘subjective test’. Here, the accused’s understanding of consent is factored in when determining whether to convict them. 

This means that even if an accused person has objectively raped someone, they can claim to have misjudged the situation and assumed there was consent on behalf of the victim.  

According to Lee-Anne Germanos Manuel, the director of the Embrace Project: “Continuing to use the subjective test is regressive since the accused can claim to hold regressive views, which makes it easier to prove that they didn’t have bad intentions. This is harmful for victims”.  

Since the use of a subjective test relies on the views and beliefs of the accused, this gives them increased leverage in their defence. “The law is skewed in favour of the accused,” says Manuel.  

Thus, the Empowerment Project is calling for the application of uniform laws and procedures (an objective test) which would require the accused to prove that reasonable steps were taken in establishing consent. 

Essentially, the onus would now be on the accused to prove consent was established (rather than on the prosecution to prove that there was bad intent). 

Present in court as a third applicant was the Wits Centre for Applied Legal Studies (CALS) presenting a further argument. They argued that the base issue is the inclusion of consent in the definition of sexual offences.  

The inclusion of consent in the legal definitions of sexual offences implies that the prosecution must prove that the victim did not consent, and that the accused did not mistakenly assume consent. 

This means that the obligation is on the prosecution and the victim to prove a lack of consent. Thus, the burden of proof on the prosecution is very high, which lowers the chances of conviction.  

The CALS is calling for consent to be removed from the legal definition of Sexual Offences so that the burden of proof lies with the accused who now must prove that there was consent. 

“If a man punches another man in a club, the person who got punched is not put on the stand and asked if they consented to being punched, that would be ludicrous! What we’re saying is that you [the court] do that with sexual offences,” explains Dr. Sheena Swemmer, the head of Gender Justice at CALS.  

The matter is currently being deliberated and if successful will be taken to the Constitutional Court. Regardless, both CALS and the Empowerment Project’s argument expose legislative gaps and problems with legislative interpretation that are possible contributors to the low conviction rates of GBV in South Africa.  

FEATURED IMAGE: The High Court in Pretoria. Photo: Kabir Jugram

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