Consent requirement in rape cases is discriminatory

‘If we want to see laws exercised without discrimination and if we want to see successful prosecutions of sexual offenders, then dismantling the requirement of consent in sexual offences is the correct avenue for achieving this outcome.’ Dr Sheena Swemmer – head of the Gender Justice programme at the Centre for Applied Legal Studies (Cals) at Wits University, South Africa – says the centre is set to argue before the Gauteng High Court (Pretoria) that the definition of sexual offences, such as rape, is indirectly discriminatory. ‘We contend that the inclusion of ‘consent’ as a requirement for many sexual offences creates a disproportionate burden on the victims of sexual offences, the majority of whom are women.’ In her opinion piece on the Daily Maverick site, Swemmer says an SA Medical Research Council study of rape cases reported to the SAPS found 94.1% of victims were female and 99% of perpetrators were male. Only 8.6% of cases are reported to the police resulting in the conviction of the perpetrator. Thus, women are exceedingly unlikely to see the conviction of their rapists. For those 18.5% of victims who get to experience a trial against the perpetrator, the current definition of rape (and other sexual offences) will require them to give testimony of how they did not consent to their violation. Because the current definition of rape requires ‘consent’ to be absent for there to be a conviction, the absence of consent needs to be proven by the prosecution at the high threshold of being beyond a reasonable doubt.

The important aspect of the present case, says Swemmer, is that Cals will argue that the current formulation of sexual offences is indirectly discriminatory: women are disproportionately the victims of sexual offences, and so laws around sexual offences will disproportionately affect them; and many other offences – that do not have women as the primary victims of the crime – do not require the prosecution to prove the absence of consent. She gives an example: a man assaulted by another man does not have to show that he did not consent to being hit or punched. He is not asked if he physically or verbally resisted the attack. He is generally also not met with the response by the defence that his attacker was confused and mistook his lack of action as consent. In these cases, proof of the lack of consent is not a requirement. The accused can raise it as a defence, yet bears the onus of proof, not the prosecution. Cals will argue we have offences that do not have women as the primary victims which require little evidence from the victim. However, offences such as rape – which disproportionately affect women and require inordinate evidence of a lack of consent – means we have laws that indirectly discriminate against women.