Here, we explain the defence of 'subjective consent' and why the High Court found it unconstitutional.
The Johannesburg High Court has delivered a significant judgment. It has declared unconstitutional the defence of “subjective consent” to a charge of rape. Judge Selby Baqwa said such a defence unjustifiably violates the constitutional rights of rape survivors and complainants to equality, human dignity, privacy and bodily integrity.THE DEFENCE OF SUBJECTIVE CONSENT
For example, in a heavily criticised case delivered by the Eastern Cape High Court in 2021, a man accused of raping his girlfriend escaped conviction by relying on subjective consent to argue, among other things, that she had voluntarily engaged in foreplay before sex. This judgment was overturned by the Supreme Court of Appeal.
CALS argued that “consent” should be completely removed from the definition of sexual offences. CALS said this was because amending the definition of subjective consent would not solve the problems with the Act because the focus in sexual offence cases would still remain on the complainant. The minister said that the legislation had been amended to include an expanded definition of rape, and it had also been changed as to how evidence in cases involving sexual offences are handled by courts. These amendments were consistent with international law, the minister said.Judge Baqwa explained that the Act requires the prosecution to prove two things beyond a reasonable doubt before someone can be convicted of rape.Second, that the accused knew that the complainant did not consent to sex.
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