Cape Town - Anti-gender based violence and femicide (GBVF) organisation, the Embrace Project, has challenged the constitutionality of rape and consent definitions in the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.
Embrace director and co-founder Lee-Anne Germanos said the litigation sought at the Pretoria High Court involving the Department of Justice and Constitutional Development, the President, and the Department of Women, Youth and Persons with Disabilities challenges the subjective requirement of intent for rape.
This change would result in an increase in rape convictions, currently at 8.6%, Germanos said.
Embrace Project researcher Cassandra Guerra said consent is an important factor when determining whether rape or sexual violence has been committed.
“As the law currently stands, the definition requires a subjective standard (what the perpetrators thinks or feels) rather than an objective test (what a reasonable member of our community may view in that circumstance and whether or not consent was actually freely and voluntarily given).”
Guerra said what was most concerning is the less progressive an accused person's views are about consent, the more likely they are to be acquitted of rape.
“In our application, we ask that the legislature amend the law to require an objective test for intent to be applied and not a subjective one,” Guerra said.
Power Singh Inc. senior associate, Tina Power, representing the first applicant, Embrace Project, and a rape survivor who is the second applicant, said a perpetrator could be acquitted of rape/ and or sexual violence if they subjectively believed there was consent, even if the belief was unreasonable.
“Our clients in this matter, the applicants, argue that this undermines the ability of victims and survivors to access justice to one of the most atrocious affronts to their dignity and bodily and psychological integrity.”