Rape and consent: A pivotal case before SA’s Constitutional Court

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 help reduce incidents of rape.

- CHEVON BOOYSEN

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

In their persistence for law reform, the applicants want the court to declare sections of the Act unconstitutional and invalid where the challenge hinges on specific provisions dealing with sexual offences in which the absence of consent is a constituent element, most notably rape.

Holztrager 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 said the incident felt like an out-of-body experience where she had “frozen” - her reaction was described as peritraumatic stress.