BEN WINKS: SA law needs an overhaul to protect rape survivors

Much debate has followed the S v Coko rape acquittal in the high court in Makhanda earlier in October. A man claimed he believed that, when the complainant said “stop, it’s hurting” during penile-vaginal sex, she meant he should only stop momentarily and then continue. The court found that the prosecution had failed to prove that this version was not “reasonably possibly true” (which is the high burden of proof applicable in all criminal cases).

Lawyers and activists are divided over whether the judgment itself was bad, or whether it was merely applying a bad law.  Persuasive arguments have been made for both. But, either way, in my view, our rape law is outdated, unjust and unduly protective of male sexual entitlement.

In 2019, the Constitutional Court observed in S v Tshabalala that “for far too long rape has been used as a tool to relegate the women of this country to second-class citizens, over whom men can exercise their power and control, and in so doing, strip them of their rights to equality, human dignity and bodily integrity.  The high incidence of sexual violence suggests that male control over women and notions of sexual entitlement feature strongly in the social construction of masculinity in SA.”

This is obviously a deeply entrenched social problem, rooted in long-held patriarchal notions of male ownership over women’s bodies. The law alone cannot solve it.

But the law can, and should, do a lot to validate and vindicate the rights of women (and men and genderqueer people) who are subjected to sexual violations. Instead, what the law in SA does is validate the offender’s subjective sense of entitlement to someone else’s body.

Our 2007 Sexual Offences Act requires that, for a person to be convicted of rape or other sexual violations, he must have acted not only without the (objective) consent of the complainant, but also with (subjective) knowledge that consent was lacking.

This means that a purely subjective belief in consent is a complete defence against a charge of rape, which succeeded in the Coko case. Thus, even though our law no longer recognises rape myths — such as that a woman is only raped if she fights or shouts, kicks or screams — it allows a man who believes rape myths to escape criminal conviction. Most obscenely, the less progressive the man’s views about consent, the more likely he is to be acquitted.

This perverted defence has been abolished in other modern democracies, more than 20 years ago in Canada and most of the US. In the UK, it was discarded in 2003 (well before our Sexual Offences Act was passed).  

In these jurisdictions, it has been replaced with a defence of reasonable belief in consent. The subjective test is qualified by objective reasonableness. Most of these laws elaborate that a belief in consent is necessarily unreasonable if it resulted from the accused’s self-intoxication, recklessness or wilful blindness, among other circumstances.

The Canadian model is the most progressive, as it also abolished the notion of implied or tacit consent, and requires that the accused must have taken “reasonable steps … to ascertain that the complainant was consenting”.  This effectively requires “affirmative consent” — upgrading the standard of “no means no” to “yes means yes”.

The impact of this law is that it shifts the focus of the criminal trial away from the conduct of the complainant (whether she should have done more to make it undoubtable that she was not consenting) to the conduct of the accused (whether he should have done more to make sure she was comfortably and freely consenting).  

This model more equitably balances the responsibility of each party for their exercise of sexual autonomy. And it is more protective of women’s rights to dignity, equality, security, and bodily and psychological integrity.

I am unable to conceive of any social, cultural or any other reason this model should not be the law in SA, where the constitutional promise of dignity, equality and freedom is violently denied to women day after day after day. The law is unconstitutional. It always has been. Parliament needs to act urgently to remedy it.

• Winks is a Johannesburg-based advocate.​