ConCourt mulls rape

CONSENT: JUSTICES TO DECIDE ON SIGNIFICANCE OF VICTIMS' ACTIONS

- Tania Broughton

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 the victims had said, or indicated through their actions or inactions, 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 the complainant had consented to sex.

This controversial defence does not require showing that consent was actually given.

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