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CALS to challenge definition of sexual offences

- Lee-Anne Bruce

CALS will appear in the High Court in Pretoria on Monday in an important case challenging consent as an element of sexual offences

On 30 October 2023, the Centre for Applied Legal Studies (CALS), based at the University of the Witwatersrand, will appear before the High Court in Pretoria. CALS is making an unopposed application to join a case which has important implications for how sexual offences are prosecuted. The matter was first brought in November last year by the Embrace Project and an individual rape survivor. The applicants seek to challenge sections of the Criminal Law (Sexual Offences and Related Matters) Act which fail to criminalise sexual violence where the perpetrator unreasonably believed the complainant consented.

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 Mr Coko, he interpreted this as tacit consent to intercourse. This finding prompted public outrage and is currently being appealed by the National Prosecuting Authority. CALS has also applied to join this case, representing the Initiative for Strategic Litigation in Africa (ISLA). The appeal will be heard at the Supreme Court of Appeal on 14 November 2023.

The reaction to the High Court’s ruling in Coko v S drew attention to the way in which current legislation treats rape and other sexual offences. Unlike some crimes where consent can be used as a defence, sexual offences are defined as unlawful and intentional acts of sexual violence without consent. The judgment’s interpretation of the law is that the burden lies with the prosecution to prove all elements of this crime, including that the accused did not mistakenly believe that they had the consent of the complainant – even if the belief is unreasonable or irrational. CALS does not support this view given that many of these “beliefs” perpetuate myths and stereotypes about sexual violence, including that victims must resist sexual violation by force.

In response to the judgment in Coko v S and other similar cases relying on the defence of mistaken belief of consent, the Embrace Project and an individual rape survivor approached the Gauteng High Court in Pretoria for relief. Their application asks the Court to declare portions of the legislation governing sexual offences unconstitutional to the extent that they allow a perpetrator to claim a mistaken belief in consent which is clearly wrong and unreasonable.

CALS 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.

We further make the case that this change should apply not only to matters prosecuted under the Criminal Law (Sexual Offences and Related Matters) Act, but also common law crimes of rape and sexual assault from before the Act came into effect in 2007. Victims and survivors may still come forward at any time to report sexual offences perpetrated. In addition, we hope to present evidence that retaining consent as a definitional element of sexual offences limits survivors’ rights to equality, dignity and access to courts.

“The current definitions of rape and other sexual offences place an added burden on the state, but also on complainants to show that they did not consent,” says Dr Sheena Swemmer, head of Gender Justice at CALS. “In this situation, the complainants’ actions become the court’s focus rather than the accused’s actions. This process puts victims and survivors on trial, expecting them to demonstrate how well they resisted the accused, buying into harmful rape myths and stereotypes.”

“This discrepancy in how certain crimes are defined constitutes indirect discrimination,” agrees CALS attorney Basetsana Koitsioe. “We have a situation in our law where offences which primarily affect women and gender minorities face an additional hurdle when being prosecuted. This contributes to the high levels of attrition we see in sexual offences, where only a small portion of the cases that are reported result in a conviction. We cannot allow this to continue.”

CALS is represented in the matter by in-house counsel Jatheen Bhima and Letlhogonolo Mokgoroane.

The matter is set to be heard on 30 October 2023 before the Gauteng Division of the High Court, Pretoria.

Read our founding papers in the matter here.

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