The Constitutional Court engaged in a session that could fundamentally transform South Africa’s fight against its rampant sexual violence pandemic.
This took place on Thursday with the contentious consent provisions in the Criminal Law (Sexual Offences and Related Matters) Amendment Act of 2007.
In terms of the Sexual Offences and Related Matters Act, a person charged with rape can avoid conviction if they can show it is reasonably possible that they believed the complainant had consented to sex.
The case, The Embrace Project NPC and Others v Minister of Justice and Correctional Services and Others, follows a 2024 Pretoria High Court ruling that declared the believed consent defence unconstitutional, condemning it for shielding perpetrators and entrenching myths that deepen survivors’ trauma.
The Embrace Project, a non-profit corporation leading the charge for reforms, urged the court to uphold the high court’s decision and adopt an objective standard for consent.
This would require accused individuals to demonstrate reasonable steps to confirm agreement, moving away from subjective beliefs.
Advocates argued that this shift could address South Africa’s dismal 8% conviction rate for reported rapes, where the prosecution’s heavy evidentiary burden often derails justice.
Senior counsel Nasreen Rajab-Budlender, representing the Embrace Project, strongly criticised the current framework.
“The current consent laws create an almost impossible burden for the state to prove sexual offences,” she told the bench.
Push for change
She further highlighted how the need to disprove consent beyond reasonable doubt protects perpetrators and revictimises survivors.
Rajab-Budlender argued that the law’s focus on the accused’s perception ignores coercion, power imbalances, and trauma responses like freezing or dissociation, which often prevent victims from resisting.
“Many victims and survivors of sexual violence do not fight or flee, but they freeze. That is a recognised reaction.
“The less progressive a man’s views are about consent, the more likely he is to be acquitted under the statute as it stands,” Rajab-Budlender added.
Supporting the push for change, friends of the court, including the Centre for Applied Legal Studies at the University of the Witwatersrand, urged for a complete redefinition of rape to focus on the lack of freely given agreement instead of just consent.
The Centre for Human Rights at the University of Pretoria and the Psychological Society of South Africa, represented by Lawyers for Human Rights, emphasised how cultural, age-related, and socio-economic factors silence survivors, rendering narrow consent definitions inadequate.
Justice Nonkosi Mhlantla reserved judgment.
