Apex Court to Hear Landmark Case on “Consent” in Sexual Offences

The Constitutional Court this week will be hearing arguments in the landmark case about “consent” in sexual offences, including rape.

• The Constitutional Court will be hearing arguments this week in the landmark case about “consent” in sexual offences, including rape.
• In terms of the Sexual Offences and Related Matters Act someone who is charged with rape can avoid conviction if they can show it is reasonably possible that they believed that the complainant had consented to sex.
• This defence does not require showing that consent was actually given.
• Last year, the High Court in Pretoria ruled that certain provisions in the Sexual Offences Act were unconstitutional because they failed to protect victims against legal bias in favour of perpetrators.
• If the apex court agrees with this finding, it will mean that a person accused of a sexual offence must prove that he or she took “objectively reasonable steps to ascertain that the complainant consented to sexual conduct”.

The issue of “consent” in sexual offences, including rape, will be in the spotlight in the Constitutional Court this week. The justices, hearing the arguments, have to grapple with how far to take the law when it comes to perpetrators alleging, they believed that the victims had said, or had indicated through their actions or inactions, that they were saying, “yes”.

In terms of the Sexual Offences and Related Matters Act someone charged with rape can avoid conviction if they can show it is reasonably possible that they believed that the complainant had consented to sex. This controversial defence does not require showing that consent was actually given.

Last year, Pretoria High Court Judge Selby Baqwa ruled that certain provisions in the Act were unconstitutional because they failed to protect victims against legal bias in favour of perpetrators.

If the apex court agrees with Baqwa’s findings, it will mean that a person accused of a sexual offence must prove that he or she took “objectively reasonable steps to ascertain that the complainant consented to sexual conduct”.

That matter was brought by the Embrace Project with the support of Inge Holztrager who was raped after being lured to a “party”. Her attacker was acquitted. The court found that while she had not consented, the state had not proved, beyond a reasonable doubt, that the rapist had subjectively known this at the time.

The Embrace Project now wants the Constitutional Court to confirm Baqwa’s ruling.

The Minister of Justice and Constitutional Development opposed the high court application but has elected to abide by the decision of the apex court.

However, the Centre for Applied Legal Studies (CALS) believes that the proposed changes to the law do not go far enough. They want the words “without consent” taken out of the definitions entirely. These arguments were dismissed by Judge Baqwa. CALS will appeal his ruling in the Constitutional Court on Thursday.

In no other crime, such as robbery or hijacking, does the response of the victim play such a large role in the definition of the crime. It shifts the focus to the conduct of the victim who, through the prosecutor, must prove that he or she did not consent, rather than the other way round.

This, CALS says, “reinforces patriarchal assumptions about sexuality which undermine both dignity and equality”. It submits that the definition created a distinction between victims of gender-based violence and other crimes and thus requires “constitutional scrutiny”.

“Instead of providing maximum protection to complainants and minimising secondary victimisation, the consent requirement perpetuates the trauma and places a disproportionate evidentiary burden on victims and hinders effective prosecution.”

The policy choice by the legislature, CALS argues, was shaped by historic and social dynamics. The “consent” definition perpetuates the misconception that sexual offences are primarily about sexual activity rather than violence and coercion.

Removing it, would dispel the misconception that sexual violence is merely “sex gone wrong” rather than a serious act of criminality.

“Even harder to adjudicate are cases where the victim consents to parts of the sexual encounter but not to others. Since consent is central to the offence, it becomes insurmountable for the victim to prove that there was no consent for the act,” CALS argues.

It also imposes unfair burdens on victims by imposing expectations on how they should respond to being raped.

The Embrace Project is opposing CALS’ application, arguing that it would have no practical effect.

© 2025 GroundUp. This article is licensed under a Creative Commons Attribution-NoDerivatives 4.0 International License.

You may republish this article, so long as you credit the authors and GroundUp, and do not change the text. Please include a link back to the original article.

We put an invisible pixel in the article so that we can count traffic to republishers. All analytics tools are solely on our servers. We do not give our logs to any third party. Logs are deleted after two weeks. We do not use any IP address identifying information except to count regional traffic. We are solely interested in counting hits, not tracking users. If you republish, please do not delete the invisible pixel.