South Africa’s legal system faces a critical test as advocates push to ensure consent is actively verified, giving survivors a fairer chance at justice. Image: Stock.
(The Post News) – The Constitutional Court recently heard a case brought by the Embrace Project, a non-profit focused on fighting gender-based violence, seeking to change parts of South Africa’s Criminal Law (Sexual Offences and Related Matters) Act.
The organization argues that the current law unfairly benefits perpetrators because it allows them to rely on an unreasonable belief in consent, which makes it extremely difficult for survivors to secure convictions.Consequently, South Africa’s conviction rate for reported rape cases remains alarmingly low, with thousands of survivors navigating a justice system that often feels inaccessible and traumatizing.
Furthermore, for many, the courtroom becomes another site of emotional strain, where their responses during an assault, such as freezing or dissociating, are misunderstood or dismissed. This disconnect between lived experience and legal interpretation continues to erode trust in the system and discourages others from coming forward.
This challenge follows a High Court ruling that found several sections of the Act unconstitutional because they undermine victims’ rights. Therefore, the Embrace Project and a survivor who joined the case are requesting that the Constitutional Court confirm that decision and introduce an interim provision requiring accused individuals to demonstrate that they took reasonable steps to verify consent.
The Challenge of Proving Consent in Court
Moreover, the case highlights the difficulty of proving intent under current law, where the accused’s subjective belief about consent can serve as a defense. This standard was notably challenged in the personal case of the survivor involved, where the accused was found not guilty despite evidence that she did not give consent.
Advocates argue that the law should place greater emphasis on protecting victims’ dignity and bodily integrity by requiring active verification of consent, rather than allowing assumptions.
As the court considers these arguments, the outcome could therefore lead to significant changes in how sexual offenses are prosecuted, aiming for a fairer balance between accused and complainant rights and strengthening the legal understanding of consent.
Please share your thoughts contact Thembeka via email: Journalist-thembeka@thepostnews.net
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