Embrace Project NPC and Others v Minister of Justice and Correctional Services and Others (GP) (unreported case no 04856/22, 30-9-2024) (Baqwa J)

In a pivotal case, IH, who was the second applicant, brought forward a significant public interest application advocating for the rights of adult female students and survivors of sexual violence (Embrace Project NPC). IH, a rape victim herself, was the complainant in the landmark case S v Amos (case no 14/683/2018), heard in the Pretoria Regional Court where Magistrate Yolandi Labuschagne presided. The accused was acquitted, highlighting critical deficiencies in the current legal standards surrounding consent in rape cases, particularly the subjective belief standard.

The legal landscape

The heart of the issue lies within the existing legislation on sexual offences, which defines consent in a manner that allows for subjective belief. Under the current legal framework, the standard of fault in sexual offenses is based primarily on ‘intention.’ This legal standard poses significant challenges for the state, which is tasked with proving that an accused’s claim of a mistaken belief in consent is unreasonable – a burden that often proves insurmountable.

Case examples

Two cases exemplify the complexities and challenges of the current legal framework regarding consent:

• Coko v S [2021] 4 All SA 768 (ECG): In this case, the High Court overturned the accused’s conviction and acquitted the accused who had engaged in penile-vaginal sex with his girlfriend despite their agreement to only engage in oral sex. The accused claimed that the victim’s body language implied consent, and the High Court concluded that the state failed to prove beyond a reasonable doubt that the accused did not genuinely believe he had consent. The Supreme Court of Appeal (SCA) set aside the accused’s acquittal and reinstated his conviction (Director of Public Prosecutions Eastern Cape, Makhanda v Coko (Women’s Legal Centre Trust and Others as Amici Curiae) [2024] 3 All SA 674 (SCA)).
• S v Amos case: In another troubling instance, a woman who was raped by a man she met online was let down by the justice system. The accused invited IH to his home for a party only to find out when she arrived that there was no party, she was the only guest. She suffered an ordeal at the hands of the man that night. Despite clear evidence of a lack of consent, the court accepted the accused’s claim of belief in consent based on the victim’s passive response during the assault.

Both cases highlight the legal system’s over-reliance on subjective interpretations of consent, which often perpetuates victim-blaming and reinforces harmful stereotypes regarding sexual violence. These instances reveal an unjust dynamic in which the burden of preventing rape disproportionately falls on victims rather than the accused.

Arguments for reform

The applicants in the matter of Embrace Project NPC argued that the current legal framework violates victims’ rights to equality, dignity, and security by allowing a subjective belief in consent to be used as a defence. They contended that this legal structure fostered a culture that normalises rape myths, suggesting that consent is assumed unless a victim actively resists.

Amici curiae (friends of the court) submissions further emphasise the psychological responses victims may exhibit during sexual assault, including passivity or immobilization, complicating the issue of consent. They argued that these responses should be considered in legal assessments of consent and that the current standards permitting a mistaken belief defence need re-evaluation.

The respondent’s defence

While the respondent’s legal representative acknowledged the severe nature of rape, they defended the existing legal framework, arguing that it has evolved to offer better protection for victims, citing legislative changes that have allowed for the prosecution of spousal rape. However, the key issues for determination remained whether the sections of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 allowing for subjective belief in consent, are constitutionally valid and whether any limitations on victims’ rights are reasonable and justifiable within the context of an open democratic society.

Unpacking the legal implications

The applicants argued that the Act allows perpetrators of sexual offenses to evade conviction through the subjective belief defence regarding consent. This creates a troubling scenario where if a perpetrator unreasonably believes a victim consented, the perpetrator may be acquitted unless the state can prove this belief false. Such a provision not only validates false narratives but also perpetuates victim-blaming, infringing on victims’ constitutional rights, particularly those of women.

The Centre for Applied Legal Studies who was third applicant highlighted that the Act’s definition of consent undermines equality rights, pointing to statistics that show sexual offenses disproportionately affect women. They argued that the provisions of the Act are discriminatory and must be deemed unfair. However, the court noted that the inclusion of consent in the Act reflects a policy decision by Parliament aligned with international norms. The argument presented by the third applicant failed due to the separation of powers doctrine, suggesting that legislative choices should not be overturned by the court.

Rights at stake

The matter emphasises the numerous instances where rights are trampled on by sexual offenses, advocating for a focus on victim rights rather than outdated societal morals. It underscores that to convict in rape cases, the perpetrator must not only have intended the act but also acted unlawfully and knowingly disregarded consent.

The court examined whether the infringement of rights is justifiable under the Constitution, particularly under s 36, which allows for limitations on rights. The applicants provided evidence that the subjective belief defence has led to acquittals without a proper examination of consent, arguing that the government had failed to justify these limitations on rights.

A call for legislative reform

The matter included the need for legislative amendments that address the deficiencies in the current legal framework. Key points raised include:

• Balancing rights: Courts must navigate the complexities of protecting both victims and the accused while adhering to constitutional rights, particularly the right to a fair trial.
• Proposed amendments: Suggested changes would require offenders to demonstrate their efforts to obtain consent rather than placing the burden of proof on victims. This approach aims to maintain the presumption of innocence while ensuring accountability.
• State responsibilities: The state, under s 7(2) of the Constitution, is obligated to protect and promote rights, actively addressing gender-based violence through appropriate legislation and actions.
• International obligations: The text highlights South Africa’s commitments under international law, especially the Convention on the Elimination of All Forms of Discrimination Against Women, which requires measures to ensure women’s rights and combat violence against them.
• Holistic approach: Advocating for a comprehensive strategy to tackle gender-based violence, it stresses that legislation alone is insufficient without effective implementation and collaboration among all stakeholders.

In summary, the matter called for legal reforms that enhance protections for victims while respecting the rights of the accused, aligning South African law with international standards to effectively combat sexual violence.

Court ruling

The court ruling on the Criminal Law (Sexual Offences and Related Matters) Amendment Act has led to significant legal developments:

• Unconstitutionality: Sections 3, 4, 5, 6, 7, 8, 9, and 11A, along with s 1(2) of the Act, have been declared unconstitutional for failing to criminalise sexual violence when a perpetrator has a mistaken belief in consent that is not objectively reasonable.
• Suspension for remedy: The declaration of invalidity is suspended for 18 months, allowing Parliament time to amend the law to address its constitutional shortcomings.
• Reading in provisions: During this suspension, a new provision will be added stating that a subjective belief in consent is not a valid defence unless the accused can demonstrate they took objectively reasonable steps to ascertain consent.
• Prospective effect: The ruling and the new provision will only apply to conduct occurring after the date of the order and will not affect past conduct.
• Cost order: The respondents were ordered to pay the costs of the first and second applicants, including fees for two counsels, while the application from the third applicant was dismissed with no costs awarded.

Conclusion

This ruling signifies a shift towards a more robust legal framework surrounding sexual offences in South Africa, ensuring that defences based on subjective belief in consent are subject to stricter scrutiny, ultimately aiming to protect victims’ rights more effectively.

Mohammed Moolla BProc (UKZN) LLM (UWC) is an Acting Regional Court Magistrate in Cape Town.

This article was first published in De Rebus in 2025 (March) DR 47.