PRESS STATEMENT | LHR to Represent Centre for Human Rights and Psychological Society of South Africa in matter concerning a mistaken belief of consent in rape cases

Date: 19/07/2024


Lawyers for Human Rights (LHR) will represent the Centre for Human Rights (CHR) and the Psychological Society of South Africa (PsySSA) as joint friends of the court in the matter of The Embrace Project and Others v Minister of Justice and Correctional Services and Others (48656/22). The hearing will start this coming Monday, 22 July 2024. The friends of the court seek to ensure that the Court understands how the trauma of sexual assault affects survivors’ expression of consent.

CHR and PsySSA have intervened in the matter challenging the constitutionality of the Criminal Law (Sexual Offences and Related Matters) Act 32 of 2007 with respect to its definition of consent. The Act establishes a subjective standard for consent, allowing perpetrators of sexual assault to be acquitted based on a belief that there was consent, whether or not it was reasonable. The defence of mistaken belief in consent thus prevents survivors from holding perpetrators accountable where they cannot prove a subjective intent to assault.

The initial Applicants are the Embrace Project, a non-profit organization that combats gender-based violence, and a rape survivor. They argue that this subjective standard violates victims’ constitutional rights to equality, dignity, privacy, and freedom and security of the person. They also emphasize the government’s duty under international human rights law to prevent and punish sexual violence.

The Centre for Applied Legal Studies (CALS) has intervened as the third additional applicant in the public interest. It argues that the central issue is not with the existence of the defence of mistaken belief in consent but rather with defining rape in terms of lack of consent.  In turn, the Minister of Justice and Correctional Services, the First Respondent, has claimed that Applicants’ arguments would impermissibly infringe upon the constitutional rights of the accused, in particular the presumption of innocence.

The friends of the court’s submissions will focus on how the trauma suffered by survivors of sexual assault impacts their expression of consent. We will argue that non-active peritraumatic responses to sexual violence necessitate an objective and active understanding of consent. Consequently, the defence of mistaken belief must be subject to an objective reasonableness standard. Moreover, to the extent that consent remains an element of the definition of rape, it must be active and expressed.

For further information, please contact:

Kayan Leung

Senior Attorney: Strategic Litigation Programme

info@lhr.org.za

Tel: 011 339 1960

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