In The Embrace Project v Minister of Justice, the High Court of South Africa in Pretoria declared unconstitutional an unreasonable belief in consent when prosecuting sexual offences in South Africa. This blog, which has been written in two Parts, explains the background to this case and the arguments made before Court which resulted in this groundbreaking decision. Part 1 summarises the High Court stage of the matter.

“Rape is perhaps the most horrific and dehumanising violation that a person can live through and is a crime that not only violates the mind and body of a complainant, but also one that vexes the soul. This crime is an inescapable and seemingly ever-present reality and scourge on the nation and the collective conscience of the people of South Africa.” – Ndlovu v S [2017] ZACC 19 (para 53).

As articulated in a 2017 Constitutional Court judgment, South Africa is plagued by sexual and gender-based violence, which are considered the highest rates of such violence in the world. Despite this reality, South Africa’s rape conviction statistics sit at just over 1% of the total number of rape cases reported to the South African Police Service annually.

In an attempt to remedy this abysmal state of affairs, The Embrace Project NPC, an anti-gender-based violence and femicide advocacy organisation, and a rape survivor, Inge Holzträger, brought an application before the High Court of South Africa in Pretoria challenging the constitutionality of certain provisions relating to consent-based sexual offences in South Africa’s Criminal Law (Sexual Offences and Related Matters) Act 32 of 2007 (“Sexual Offences Act”).

The applicants’ constitutional challenge focused on the element of criminal intent, and its effect on consent. For example, rape in the Sexual Offences Act is defined as follows: “Any person (“A”) who unlawfully and intentionally commits an act of sexual penetration with a complainant (“B”), without the consent of B, is guilty of the offence of rape.”  The main argument was that the application of a subjective test by the courts when determining whether an accused person had intended to commit the sexual offence in question created an almost insurmountable barrier to convictions when there was an absence of resistance by the complainant – which is often the case, particularly in intimate partner sexual violence.

The effect of the use of the subjective test for intent was such that an accused person would often be acquitted even if a court found, in the case of rape, that there was unlawful sexual penetration committed by the accused without the consent of the complainant. An accused’s version needed only be ‘reasonably possibly true’.

The applicants argued that the current position resulted in the law inadvertently perpetuating rape myths and stereotypes, and asked that the Court place a positive obligation on the accused to take “objectively reasonable steps” to ascertain whether or not consent was given, as opposed to assuming so unless an objection was raised.

The Centre for Applied Legal Studies (CALS), a public interest law clinic, applied to intervene as a third applicant, seeking a different relief to that of The Embrace Project and Ms Holzträger. CALS argued for the removal of consent as a definitional element of the impugned sexual offences. This point is explained in a bit more detail at paras 37 to 48 in CALS’ Heads of Argument.  If CALS’ relief were to be granted, this would mean that an absence of consent would no longer have to be proven by the state in order to prove the commission of a sexual offence. However, an accused person would be able to raise the presence of consent as a justification or defence to unlawfulness only.

Both applications were opposed by South Africa’s Minister of Justice and Correctional Services who based her opposition primarily on the argument that the law, as it was, sufficiently protected victims of sexual violence; and that the relief sought by the applicants would place a reverse onus on the accused to prove their innocence, thereby infringe upon an accused person’s right to a fair trial.

The Centre for Human Rights and the Psychological Society of South Africa joined the proceedings as amici curiae, providing invaluable scientific evidence on the common behavioural responses of victims during a sexual assault – being tonic immobility (freezing) – which highlighted just how out of step the law was with reality.

In a judgment handed down on 30 September 2024, Judge Selby Baqwa found that by enabling a defence of unreasonable belief in consent, the Sexual Offences Act violated a number of fundamental constitutional rights of sexual violence victims and survivors as set out in The Embrace Project and Ms Holzträger’s papers. To temporarily remedy this position while the South African Legislature amended the impugned provisions, Judge Baqwa ordered a reading-in remedy that requires that accused persons take objectively reasonable steps to ascertain that the complainant consented to the sexual conduct in question, resulting in a groundbreaking decision for the fight against sexual and gender-based violence in South Africa. In Part 2 of this blog, I explain what is still required before this groundbreaking judgment begins to have the desired impact on the lives of sexual and gender-based violence victims and survivors.