Male domination: People in Durban protest against gender-based violence. (Rajesh Jantilal/AFP)
The justice ministry has, in court papers opposing a constitutional challenge to the subjective test on consent in the law on rape, stated that the application is driven by negativity towards men.
“The court is requested not to suspend anything as the act does not have any irregularities and it must be left as is, the applicants are only driven by their ego towards men and they are using their emotions to persuade the court to declare unconstitutional an act which is in line with the Constitution.”
The remark is from the penultimate page of an answering affidavit filed by the chief director for legislative development in the justice department, Leonard Sebelemetja, to an application before the Pretoria high court to declare sections 3 to 9 and 11(a) of the Sexual Offences and Related Matters Act of 2007 unconstitutional.
The applicants argue that the law offends against the constitutional rights of rape victims by recognising a defence of mistaken belief that there had been consent. The test is subjective, in that it hinges on the mindset of the accused at the time.
If the state fails to prove beyond a reasonable doubt that it was not “reasonably possibly true” that the accused held this belief, acquittal must follow.
The defence is not unique to South African law and neither is the debate about it. In most jurisdictions, consent is the central question in rape legislation because the crime is defined as sexual penetration against the will of the victim. For criminal intent to be present, the accused must therefore know that consent is absent.
If this is the origin of the defence of mistaken belief in consent, the question is whether it should endure in law when society places ever more emphasis on consent, and the need for it be established, not assumed.
The applicants say South Africa’s sexual violence statistics make legal review a matter of urgency.
They argue that the defence “places an almost insurmountable barrier” to conviction when the state court finds that objectively there was no consent, but the prosecution cannot prove that the accused subjectively intended to rape the victim.
The challenge was brought by the Embrace Project, an advocacy group combating gender-based violence, and Inge Holztrager, the complainant in a rape case that ended in acquittal after the accused successfully pleaded that he believed she had consented to sex.
In that case, S v Amos, the court found that the accused’s actions were unlawful because she did not consent but that the state could not prove that subjectively he knew this.
Had the test been objective, the magistrate said, she would have found that the reasonable man could not have assumed consent had been given.
Holtzrager and her co-applicants are asking the court to declare the law invalid in that it recognises subjective belief as a complete defence, with no qualification as to the reasonableness of that belief.
They argue that retaining it violates the constitutional rights to dignity, equality, bodily and psychological integrity, as well as freedom and security, including the right not to be treated in an inhumane or degrading way.
“By giving primacy to the subjective intention of an accused, the impugned
provisions infringe the constitutional rights of a victim in an unjustifiable and
impermissible manner,” they said, adding that it “legalises sexual violence where there is is no reasonable belief in consent”.
In doing so, the state was neglecting its duty to protect the rights of women and children.
Sebelemetja, on behalf of the ministry which is cited as the first respondent, said the argument was overwrought, and the applicants were wrong regarding the extent to which the subjective test narrowed the court’s inquiry.
“The applicants need to be more measured in their arguments, a determination of a reasonable belief in consent is based on the facts. The court is enjoined to have regard to the full spectrum of the evidence presented. It is not limited by the subjective test.”
The ministry disagreed with the Amos ruling, submitting that the magistrate “misdirected himself by blaming the subjective test” and failed to consider the full spectrum of evidence.
“It was possible to convict the accused as dolus eventualis [intent in which the perpetrator sees an outcome as a possibility and continues with it] was proven, because he displayed no care for whether consent was given.”
The ministry is not the first to argue for applying the principle of dolus eventualis in rape cases where the accused invokes a subjective but unreasonable belief in consent. If, on the evidence, he must have foreseen that the victim withheld consent but went ahead regardless of the harm that could follow, guilt is established.
Per se then, the ministry said, there “is nothing wrong with the defence of purely subjective belief”. An objective test, on the other hand, would reverse the burden of proof by compelling the accused to prove that there was consent and rob him of the presumption of innocence.
This subjective test came under the spotlight in late 2021 when the Eastern Cape high court overturned a rape conviction and seven-year sentence on appeal in S v Coko.
There the complainant and the accused were in a relationship and the latter’s main defence was that he had believed that at some point consent had been tacitly given, although she had made it clear earlier that she did not want to have intercourse.
The ruling was wrongly read as having equated foreplay to consent to intercourse.
Acting Judge Tembeka Ngcukaitobi stressed: “An accused cannot solely rely on the ‘body language’ of a rape victim to override his or her express words.”
But, he said, the court record did not suggest that was what happened here. Subsequent to her stated refusal to have intercourse, the complainant allowed oral sex, kissing and penetration. The court held that the accused could plausibly have believed this signalled consent, which the complainant conceded could have been possible.
At the time, many in the legal fraternity said the problem lay not with the court’s reasoning but with the law itself, and several argued that applying dolus eventualis could have led to a different outcome.
The applicants do not express a view on the correctness or otherwise of the Coko ruling, which the National Prosecuting Authority is taking on appeal, and do not fault the court’s finding in Amos.
They merely say that such rulings are not uncommon and illustrate the danger in retaining an outdated test, while other countries have replaced the defence of a subjective belief in consent with one of reasonable belief.
Locally, law reform in the past two decades has gone a long way to debunking rape myths. It is now trite that most victims are raped not by strangers and that many do not fight or flee but “freeze”.
The courts can no longer infer consent from silence or a lack of struggle but, the applicants say, progress is undone by the fact the defence of mistaken belief allows an accused to get away with doing so.
“Most perversely, the less progressive the man’s views about consent, the more likely he is to be acquitted.”
It also placed the focus on the conduct of the complainant rather than that of the accused.
“The corollary is that victims and survivors have a legal duty to place their non-consent beyond any reasonable doubt in the eyes of even the most unreasonable man.”
They stress that the harm to rape victims happens irrespective of the mens rea, or mental element, of the accused and say the law must punish those who inflict it, even if it is done recklessly rather than intentionally.
Here they quote the view voiced by the Law Reform Commission of Ireland that careless actions that cause harm should not be ignored, “particularly where the harm can be easily avoided through a simple inquiry”.
As the law stands, it rewards those who cannot be bothered to make that inquiry, effectively legalising negligence.
The ministry countered that that the focus on the conduct of the complainant could not be cured by changing the test to an objective one, but would remain for as long as absence of consent defined the crime of rape.
“It is the sexual nature of the offence that makes it so difficult to circumvent the element of consent, while the victim’s consent to physical assault may not constitute a defence, sexual relations are not prima facie unlawful, to deem them so would be to adopt a social norm that has yet to gain purchase.”
And it cautioned that a plea for criminalising negligence in the context of rape “has its own problems”, reminding the applicants that while the law criminalises negligent killing, it does not deem this murder but culpable homicide.
“To the contrary, the relief sought by the applicants is to criminalise negligent conduct in sexual offences and convict the accused person of the full blown crime of rape.”
It would be unfair, the ministry said, because the burden of proof for negligence is lower.
The difference between dolus eventualis and negligence, simply put, is that with the first the harm that may ensue from the perpetrators actions is probable, and with the second merely possible.
There have been proposals elsewhere to criminalise negligence or an unreasonable belief in consent as a lesser offence in rape law, echoing the distinction between murder and culpable homicide. However, there is a risk that prosecutors may reach for the lesser charge as it is easier to prove.
In Ireland, lawmakers opted instead to do away with defence of a subjective or honest belief in consent, replacing it with an “objectively reasonable” belief that the victim had consented.
The South African law commission in 2002 mulled this proposal but did not include it in its report to parliament. Rightly so, the ministry argues, since an objective test would impose a single standard of acceptable sexual conduct in a diverse society.
“South Africa is a heterogenous nation and this factor on its own will make the objective test difficult for the courts to adjudge consistently.”
It said this did not mean that courts could condone sexual violence in the name of cultural rights, as the applicants argued, because these are subject to the constitution. Unfairly, it faulted the applicants for not submitting comments to the law commission.
The commission handed its report to parliament in 2002, and the Embrace Project was founded 20 years later.