Justice ministry stands by its opposition to constitutional challenge to Sexual Offences Act

In a landmark hearing on the subjective definition of “consent” in the Sexual Offences Act, the justice ministry has reiterated its objection to a bid to declare sections of the Act unconstitutional. 

“We stand by our arguments that the Act is sufficient and does not infringe the rights [of the victim and accused] and we ask the court to make a decision,” advocate Poswa Lerotholi, representing the justice ministry, told the Pretoria high court on Tuesday, the second day of the hearing.

Lerotholi made the submission after presiding Judge Selby Baqwa commented on the lack of cooperation between legislative bodies and civil society in implementing laws. 

The application, brought to the high court by nonprofit organisation The Embrace Project, seeks the courts to declare sections 3 to 9 and 11(a) in the Act on the definitions of consent and rape to be ruled invalid to relieve the victim’s burden to prove a sexual offence.  

“It is overwhelmingly clear that the Act is unconstitutional to the extent that it does not criminalise sexual violence where the perpetrator wrongly and unreasonably believed that the complainant was consenting to the conduct in question,” The Embrace Project says in its court application.

As the law stands, it is insufficient to prove that an accused person committed an act of sexual penetration without the complainant’s consent. It must further be proved that, in the accused’s subjective state of mind, they intended to rape the complainant regardless of the complainant not having consented to the sexual penetration. 

“The law perpetuates disrespect and disregard for women’s sexual autonomy, reinforces rape myths and further victimises rape victims and survivors,” advocate Nasreen Rajab-Budlender, of Power & Attorneys, told the high court on Monday. 

Power & Attorneys is representing The Embrace Project as the first applicant and rape victim IH as the second applicant in the court challenge. 

The issues raised against the Act were first brought to the attention of President Cyril Ramaphosa in October 2021, before he signed recent amendments to the Act into law. 

The Embrace Project, which had participated in the legislative process of the “GBV Bills” in 2020, wrote to the president informing him that a rape survivor had approached it in August 2021 and highlighted the issue of the application of intent in the definition of rape. 

The president failed to respond to the letter, prompting the nonprofit organisation to launch a legal challenge. The minister of justice and correctional services, the president and the minister of women, youths and persons with disabilities were cited as respondents.

But the justice minister was the only respondent who submitted an answering affidavit, on 16 March 2023, opposing the application. 

“I deny that the Act is unconstitutional, this preposition fails to account for the need for the criminal justice system to enforce the rights of the victim without infringing the rights of the accused as well, the accused person,” the affidavit reads.

The Act requires subjective tests to be applied in law when it comes to a charge of rape. 

“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 [objectively], where the prosecution has been unable to prove that the accused persons subjectively intended to rape the complainants,” The Embrace Project’s Lee-Anne Germanos told the Mail & Guardian. 

The justice department has argued that it would be problematic to introduce an objective test because it would impose a single standard of acceptable sexual conduct in a diverse society.

“South Africa is a heterogeneous nation and this factor on its own will make the objective test difficult for the courts to adjudge consistently,” then justice minister Ronald Lamola said in the response affidavit. 

In April this year, the Centre for Applied Legal Studies (CALS) applied to intervene in the application as a third applicant. The centre seeks to relieve the term “consent” to “coercive circumstances”, which has been rejected by the first and second applicants.

The justice minister opposes the relief sought by CALS on the basis that the commission of sexual conduct in and of itself is not a crime, but the perversion of it — its commission without the consent of the other person — is. 

The minister suggests that CALS’ requested relief would make all sexual conduct prima facie (on the face of it) a crime unless it can be proven that consent was given.

The Centre for Human Rights and the Psychological Society of South Africa joined the application as “friends of the court” or amici, providing the court with their expert views.

In its findings, the society highlighted the various peri-traumatic responses to sexual assault whereby a victim can become paralysed during the act of assault. 

The amici argues that if South Africa is to continue with the current stance in its law, it would ignore the well-established psychological findings on peri-traumatic responses. 

“There is a pertinent need to consider and incorporate peri-traumatic responses and the resultant effect on the ability to communicate consent or non-consent, even where the defence of mistaken belief is raised in our law,” the amici said in its submissions to the court on Monday. 

Advocates representing the first and second applicants have asked the court for a 12-month suspension on the order of sections 3 to 9 and 11(a) and for the court to have an interim reading to protect the rights of victims who bring their case to court while the Act is debated in parliament. 

Baqwa acknowledged the arguments made by the applicants and said a judgment would be declared “in due course”. 

IH, who was in court on both days of proceedings, said even though she had not received justice in her rape case, she hoped that the court will change the circumstances of other victims. 

“I did not get justice but I can only empower legislation that can assist other rape victims when they do decide to come forward,” she told the M&G.