Consent, how it is obtained, and through what means becomes central to legal redress in another vexed area of the law — sexual corruption.
A recent high court judgment found that sections of the Sexual Offences Act are unconstitutional because they impinge on an objective approach to consent. It is instructive for many reasons. It opens lines of inquiry into how consent should be determined and places, in sharp focus, the problematic norms around what consent looks like for victims of sexual violence.
Further it raises the vexed issue of consent in cases of sexual corruption. The legal definition of corruption is equally lacking in clarity for victims of sexual corruption. Sextortion and sexual bribery expose the underlying vulnerabilities of women in society and demand a re-examination of the social and gendered norms underlying consent and the act of sexual corruption.
Judge Selby Baqwa in the Pretoria high court in the case of Embrace Project NPC and Others vs Minister of Justice and Correctional Services and Others [2024] has delivered a landmark judgment. It serves to extend justice to victims of sexual offences and GBV.
He found that sections three to nine and 11A, read with the section 1 (2) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (the Act), are unconstitutional and require re-drafting.
The Act as it currently stands allows perpetrators of sexual offences to escape criminality if they wrongly and unreasonably believed that the victim has consented.
Intention to commit a wrong is the cornerstone requirement of successful criminal prosecution. “The accused should have known, or should reasonably have known, that their actions were wrong” is a common refrain in criminal prosecution matters.
The present Act has shortcomings in how it tests for the element of intention. This is because, in cases where there is no consent, the Act does not set an objective qualification of reasonableness in the test for intention. So, a perpetrator can successfully avoid the requirement of intention if they simply state that they were under the subjective belief that the victim consented. This defence would hold even if the belief was unreasonable. Shocking, but true.
The practical effect of the Act is that it places the definition of consent inside the required elements of the Sexual Offences Act. In other words, it demands that the state disprove beyond a reasonable doubt that a perpetrator’s subjective belief of consent is incorrect. A tall order indeed.
Judge Baqwa seeks an amendment to the Act where the test for consent would require a perpetrator to explain the objective steps taken to establish the presence or absence of consent. This, he says, is a justifiable amendment in an open and democratic society based on human dignity, equality and freedom.
Consent also has psychological perspectives, as was shown in the court application by the Psychological Society of South Africa (PsySSA). It stated that the definitional elements of consent in the law assumes a freedom of autonomy which is often not the case with vulnerable victims, such as children and women, in particular contexts.
It said it comprises a basket of psycho-social perspectives.If we break down what psychological perspectives are, we arrive at a melting pot of feelings and experiences, which are further informed by the prevailing sexual, societal and gendered norms.
Consent, how it is obtained, and through what means becomes central to legal redress in another vexed area of the law — sexual corruption. This is especially so when it is combined with sexual, societal and gendered norms.
Surprisingly, sexual corruption has only recently been recognised as a form of corruption by the Conference of the State Parties to the UN Convention against Corruption (CoSP) in 2023.
Why is recognition of this issue so painstakingly slow?
A decent response demands interrogating two vexed aspects: awareness of the problem plus an examination of the gendered lens through which consent is viewed in our society.
This involves a deep dive into social norms and their intersection with gender norms, both vying for competition in prescribing (and rewarding) how we behave in South Africa.
Sleeping one’s way to the top and sleeping one’s way to access health/ education or an entry-level job both demand an examination of the power dynamics at play and why it is that sexual acts are still used in this way to further a women’s life journey.
What is sexual corruption?
If corruption is behaviour where there is an abuse of power for private gain, then sexual corruption implies that private gain is sexual in nature.
Recent efforts by authors contributing to the UN office on Drugs and Crimes attempt to push reform in this area distilled it as follows:
Bjarnegard, Colvo, Elden and Lundgren in their June 2024 research paper here set out four foundational principles for it to exist.
- An abuse of entrusted power;
- To obtain a sexual favour;
- In exchange for a service or benefit and
- That is connected to that entrusted power.
The authors claim that what is vexing about the behaviour around sexual corruption is its intersection with what is traditionally known, and legislated, as corruption and further, what is traditionally known, and legislated, as a sexual offence.
In South Africa, our corruption definition is contained in the Prevention and Combating of Corrupt Activities Act. It provides that corruption happens when any person directly or indirectly accepts, agrees or offers to accept any gratification from any person whether for the benefit of himself or for the benefit of another person.
This is a broad definition. It criminalises both parties in a corrupt transaction. The definition of gratification is equally broad and would include acts of sexual corruption
The unintended consequence of criminalising both parties’ behaviour as corrupt is that it prompts under-reporting of sexual corruption for fear of being complicit. This has the knock-on effect of a chronic under-investigation of this problem. Add to this the issue of consent in sexual harassment and how it plays out in attaching blame (or not) to a sexual predator, and we have a maelstrom of clashing social and gender norms. How would we like our society to behave?
Behaviour: An act that is driven by an expectation found in a social norm.
Social norms: The unwritten rules of a group that set out how the group mutually expects to behave.
Gender norms: Social norms that define how women and men are expected to behave individually and with each other.
Is it time to shift these expectations?
Power is inextricably woven through the fabric of these informal rules through a system of social enforcement mechanisms. For example, behaviour can be rewarded socially through praise or trust while it can be punished socially through shame or isolation. This compounds the complexity in adequately addressing the root causes of sexual corruption.
The authors place legal reform at the top of the pyramid in driving recognition in this space. Without it, they say, raising awareness and providing gendered and victim-oriented solutions will not be effective. Sexual corruption, according to them, can take place in the following ways: sextortion — using the threat of force/ coercion to obtain a sexual favour in exchange for something and sexual bribery — the act of offering or receiving sex in exchange for something.
How should the law respond to cases where sex is used to access services such as medical care, education, state grants, employment opportunities and good marks?
Females experience corruption in different ways. It is dependent on the expectations of her gendered role in her profession, in her place of work, in her home, in her community.
These competing expectations contain a tension. This is because a junior female advocate might not necessarily consider a demand for sex in exchange for a legal instruction as corrupt behaviour, given her understanding of the gendered and social norms governing legal practice. She might consider it a sexual offence.
She might, however, consider a female in the Eastern Cape who has traded sex for a business licence corrupt behaviour. This is because she might not be familiar with the norms governing the expectations of the community where women might be forced to “consent” to desperate choices to access services.
Power dynamics governing social relations are subtle and nuanced. Social groupings derive their power from leveraging social enforcement mechanisms like acceptance or isolation. Social groups remain a powerful and vital means of resources for members of a community.
Research conducted by the UN office on Drugs and Crimes in 2020 on levels of poverty among users of public health in 35 African countries found that women are easy targets because they are poorer than men. The report found that, since most of the services were offered by males, women who could not afford to pay bribes “offered” sex as a form of payment to access essential health services for themselves and their families.
Where does this leave the law and the need for reform? There is a need to introduce a gendered lens into the discussion around legal solutions in sexual corruption and reform. In the same way that the high court has recognised the significance of the psychological perspectives in assessing consent, so too should the law approach a determination of consent in the power dynamics present in cases of corruption.
In the current legal framework, a woman cannot righteously go to the police and open a case — more especially if she “consented” to the sexual act. It is not going to help her. Neither can she report it as a form of corruption., unless she wants to be charged with the same offence as her perpetrator. It is not going to help her either.
What is required is a re-framing of the legal definition of corruption together with the legal and societal understanding of the unique vulnerabilities of women in their gendered roles in a community. Women experience vulnerability in their professional role, in their places of work, in their homes, in their communities.
What separates consent to a sexual act from a coerced sexual act is the imbalance of power. This is known as vulnerability. Vulnerability used as a tool used by people in positions of power in this equation is best described as corruption.
Consent is pyrrhic in this equation.
Luthfia Kalla is an anti-corruption compliance lawyer with a special interest in ethics and following the (illicit) money.