Pivotal case on rape and consent could reshape South Africa's legal landscape

THE potential ruling by the Constitutional Court that parts of the Criminal Law (Sexual Offences and Related Matters) Act, 32 of 2007, concerning consent, are unconstitutional could contribute to reducing incidents of rape.

- CHEVON BOOYSEN

This was heard during oral evidence in the Constitutional Court yesterday in which the Embrace Project, a nonprofit organisation which aims to combat gender-based violence, and rape survivor Inge Holzträger have filed an application challenging the constitutionality of the Act.

The applicants have turned to the court to declare sections of the Act unconstitutional and invalid where the challenge hinges on specifically provisions dealing with sexual offences in which the absence of consent is a constituent element, most notably rape.

Holzträger was raped in 2018 by a man she met through an online dating platform. The court acquitted the accused on the basis that the victim had not objectively consented to the accused's penile penetration, but she neither physically resisted nor loudly protested.

The trial court accepted that the accused had subjectively believed that there was consent despite her evidence that she was "shell-shocked and in a trance" and she had "frozen" - her reaction was described as peritraumatic stress.