Many sexual offences are still framed in ways that rest on discriminatory assumptions. Photo: Delwyn Verasamy/M&G
On 25 September 2025, the Centre for Applied Legal Studies is set to appear before the Constitutional Court to challenge the definitions of certain sexual offences. The Centre for Applied Legal Studies (CALS) will argue that the current framing of these offences is discriminatory because they unfairly burden victims and survivors of gender-based violence unlike complainants in other, non-gendered violent crimes.
Our courts have long acknowledged that laws are not neutral, and this is even more so in the instance of laws about sexual offences. In Masiya v Director of Public Prosecutions (The State) and Another the Constitutional Court recognised that the common-law definition of rape was steeped in patriarchal assumptions, including the idea that rape was wrong because it violated men’s ownership rights over women.
Put differently, the law treated rape as if it were a property crime. Much like a stolen car or a house breaking, the violation was understood in terms of a man’s “loss of control” and the “damage” to what he “owned,” rather than the violation of a woman’s dignity and bodily integrity.
South Africa has since taken essential steps to reform sexual offence law. Yet, many offences are still framed in ways that rest on discriminatory assumptions and place unfair burdens on victims and survivors. Take rape, for example. When a rape case goes to court, the prosecution must prove beyond a reasonable doubt (1) that there was sexual penetration, (2) that the complainant did not consent, and (3) that the accused acted with intention and knew (or at least foresaw) that there was no consent. On the face of it, this seems neutral and even progressive, since it emphasises the importance of consent in sexual encounters.
Yet, this apparent progress hides a deeper problem. By centring consent in the definition of rape, the law makes the survivor’s state of mind the battleground instead of focusing on the perpetrator’s actions, including their use of force or coercion. The question becomes whether the survivor can prove that she did not consent and whether she did so effectively enough for the accused to have known that she disagreed. Thus, what looks like protection quickly becomes a trap, forcing survivors to meet evidentiary hurdles that are often difficult to satisfy.
Why is rape framed this way? The roots lie in the doctrine of conjugal rights, where sex within marriage was treated as a husband’s “entitlement”. For centuries, the law did not recognise marital rape at all, as a wife was presumed to have given permanent consent.
This was not only about a claimed right to sex, but also about the law’s tolerance of force in enforcing that claim. For example, in S v H from 1985, the high court entertained the idea that a husband could enforce his conjugal rights with a reasonable degree of force. While it rejected the defence for the assaults that preceded the rape, it left intact the notion that sexual access was a marital entitlement. The implication of this was stark: sex could involve force, and it would not be called rape so long as it was within marriage and was “reasonable”.
This history explains why rape came to be framed as “sex gone wrong” or “sex with unreasonable force” rather than as a violent assault. The question was never about the harm of forced sex, but whether the man had stepped beyond the bounds of his entitlement.
Non-consent was later written into the definition of rape to signal a break from this legacy, to make clear that sex without agreement is unlawful. But in centring non-consent as the defining feature, the law carried forward a discriminatory framing, treating rape as sex without consent rather than as a violent crime in its own right.
To complicate matters further, South African criminal law also recognises what is called a “mistaken belief” defence. This means that if an accused can assert that they genuinely believed there was consent, they cannot be convicted of rape. The reason this defence arises is that non-consent is written into the very definition of rape.
By writing non-consent into the definition, the law not only opened the door to a “mistaken belief” defence, where an accused can escape liability by claiming they thought there was agreement, but it also invited back the old logic of force. Courts began to look for evidence of struggle, injury or resistance as proof of non-consent. In this way, the discriminatory assumptions we thought we had left behind crept back in through the back door.
We can see this play out in Coko v S in the high court, where the court specifically noted the absence of force as a factor in its reasoning. Despite clear evidence of the survivor’s lack of agreement, the court’s focus drifted back to whether there had been sufficient physical resistance. This is precisely one of the dangers of centring non-consent in the definition of rape, as it reintroduces force and resistance as the benchmarks, even though the law was meant to move beyond them.
How do we fix this? In most crimes in South Africa, consent is not written into the definition at all. The law does not ask whether someone consented to being stabbed or robbed. Instead, consent is treated as a defence, and if an accused wants to argue it, they must raise it as a justification. Applying the same approach to rape would not only align sexual offences with the rest of criminal law, but it would also reduce the discriminatory focus on the survivor’s state of mind and finally move the law away from its lingering preoccupation with force and resistance.
Some argue that removing non-consent from the definition of rape would unfairly shift the burden onto the accused. But this misunderstands how our criminal law already works. In every other violent crime, the State still has to prove its case beyond a reasonable doubt. Assault, murder or theft do not collapse simply because consent is raised. Instead, if an accused person claims the victim agreed, they must put forward credible evidence, and the court must test it like any other defence. Nothing about this changes the fundamental presumption of innocence. The persistence of this argument says less about the law than it does about how deeply entrenched assumptions around sex and entitlement remain.
By aligning rape with the way other crimes are framed, we stop forcing survivors into unnecessary evidentiary hurdles, and we stop reintroducing patriarchal assumptions about force and resistance. Equality and dignity cannot be conditional, and yet sexual offence law still treats survivors differently from other victims of crime. Breaking with this legacy is not about shifting burdens; it is about ensuring our criminal law finally speaks the same language of justice for everyone. This is the principle the Centre for Applied Legal Studies has long advanced: our laws must protect survivors without discrimination, and true justice lies in a system grounded in dignity and equality.
Dr Sheena Swemmer is the head of gender justice at the Centre for Applied Legal Studies, Wits University.