Challenge mounted against statutory definition of rape and consent

The Embrace Project wants the sexual offences amendment bill on the meaning of consent referred back to the National Assembly. Stock photo.
The Embrace Project wants the sexual offences amendment bill on the meaning of consent referred back to the National Assembly. Stock photo.
Image: 123RF/Evgenyi Lastochkin

A non-profit organisation (NPO) which aims to combat gender-based violence (GBV) and femicide wants the Criminal (Sexual Offences and Related Matters) Amendment Act Amendment Bill on the meaning of consent referred back to the National Assembly.

This comes after a paramedic convicted of rape was recently acquitted because he thought his girlfriend wanted sex, even though she said “no” to penetrative intercourse. 

The Embrace Project said the amendment bill leaves the statutory definition of rape and consent unamended. They emphasised that should the bill be passed as it is, it would be a major setback in the fight against GBV and femicide in SA.

The bill was passed by both houses of parliament on September 10 and is with the president for assent.

The NPO sent a letter to President Cyril Ramaphosa, minister of justice and correctional services Ronald Lamola and the parliamentary portfolio committee on justice and correctional services on Friday.

The letter raised a constitutional issue with the statutory definition of rape contained in section 3 of the act and the meaning of consent in section 1 of the act. 

The NPO asked that the bill be sent back to the National Assembly, in terms of section 79 of the constitution, to address sections 1 and 3 of the act, which they said infringe on rape survivors’ constitutional rights to bodily and psychological integrity, human dignity and equality.

“It was pointed out that the statutory requirement that a perpetrator must have subjectively intended to rape a victim, in cases where it had been proven there was sexual penetration without consent, was unconstitutional and created an almost insurmountable barrier to the conviction of guilty accused persons.

“The Embrace Project also pointed out that the issue with the vague definition of consent in the act was most recently highlighted by the public and legal criticism attracted by the appeal judgment in the case of Coko v S.”

In the judgment, the Eastern Cape High Court acquitted paramedic Loyiso Coko, convicted of raping his girlfriend and sentenced to seven years in prison by the Grahamstown magistrate’s court, on the basis that he genuinely believed his alleged victim had consented to sex.

Coko was sentenced for raping a Rhodes University postgraduate student in July 2018 at his home in Makhanda.

Coko admitted she had told him she did not wish to have penetrative sex and said he had no intention of ignoring this. But, he said, he had genuinely believed from her later conduct and body language that she was consenting.

In August 2020, Lamola introduced the bill to parliament, which was to amend the act.

According to the Embrace Project, the NPO participated in this legislative process by commenting on the bill and making representations before the parliamentary portfolio committee on justice and correctional services in October 2020.

However, they said the final version failed to amend sections 1 and 3, even though the project had raised an issue with the meaning of consent in its submissions.

The NPO aims to “creatively combat” GBV and femicide with a combination of art and advocacy through law to raise awareness and bring about real change. It also raises funds for grass-roots organisations combating GBV in their communities through the sale of art.

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