In Part 1 of this blog, I explained how the High Court of South Africa came to decide that certain provisions of the Sexual Offences Act were “unconstitutional…to the extent that these provisions do not criminalise sexual violence where the perpetrator wrongly and unreasonably believed that the complainant was consenting to the conduct in question, alternatively, to the extent that the provisions permit a defence against a charge of sexual violence where there is no reasonable objective believe (sic) in consent.”  

In terms of the South African Constitution, a declaration of constitutional invalidity is only effective if confirmed by the Constitutional Court of South Africa. So, although the High Court delivered a groundbreaking judgment on 30 September 2024 that would otherwise change the lives of victims of sexual violence going forward, and hopefully alter South Africa’s rape culture, this seismic legislative change will only come into effect if and when the Constitutional Court agrees with the decision of the High Court.

The Constitutional Court has been seized of the matter since 21 October 2024 and requested that written submissions be made to it by the end of January 2025. These directives presumably came as a result of an unexpected turn of events where the Constitutional Court is simultaneously considering an application for the confirmation of the High Court order granted in favour of The Embrace Project and Inge Holzträger, and an appeal lodged against that same order, by CALS. The Minister of Justice has yet to oppose either application at the Constitutional Court stage.

The Embrace Project and Inge Holzträger, and CALS agree that the impugned provisions in South Africa’s Sexual Offences Act are unconstitutional but their reasoning and remedies diverge almost entirely. At the core of The Embrace Project and Inge Holzträger’s argument is that an unreasonable belief in consent, which speaks to intent as a definitional element in sexual offences, is unconstitutional. Whereas the crux of CALS’ argument is that the absence of consent, as a definitional element in sexual offences, is unconstitutional.

CALS, in its written submissions before the Constitutional Court clarifies that it aims to shift society’s, and the law’s, perspectives through the remedy that it seeks, so that consent is no longer the distinguishing factor between sex and rape. This approach, known as a coercion-based sexual offences model, aims to define sexual violence for what it is – a violent crime – as opposed to sex without consent. Both the consent-based sexual offences model applied by South Africa, and the coercion-based sexual offences model being pursued by CALS, are internationally recognised and accepted as legitimate sexual offences models.

Given that the South African legislature has chosen to apply the consent-based sexual offences model, The Embrace Project and Inge Holzträger argue that CALS would have to show that the consent-based sexual offences model is unconstitutional, which would allow the Court to order the application of the coercion-based model without breaching the doctrine of separation of power between the judiciary and legislature. In its written submissions before the Constitutional Court, CALS argues that retaining consent as a definitional element of sexual offences amounts to unfair gender discrimination in terms of section 9(3) of the South African constitution (right to equality). CALS argues that because only gendered offences, which predominantly effect women and children, include consent as part of the definition of the crime, this amounts to unfair discrimination and is unconstitutional.

The Embrace Project and Inge Holzträger, on the other hand, argue that because the Court is required to work within the confines of the internationally accepted sexual offences model chosen by South Africa’s Legislature, the Court should confirm that an unreasonable belief in consent is unconstitutional, and place a positive obligation, in law, on persons to take objectively reasonable steps to ascertain that the other person consented to the sexual conduct in question, as the High Court did.

It remains to be seen in whose favour the Constitutional Court will decide. Either way, sexual offences will likely never be the same again.