PRESS STATEMENT | Court declares key provisions of Sexual Offences Act unconstitutional: land-mark ruling on consent in sexual offences

Date: 01/10/2024


A landmark judgment was delivered on 30 September 2024 by the Pretoria High Court, declaring several sections of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 unconstitutional. These provisions were found to inadequately address sexual violence where the perpetrator held an unreasonable belief in the complainant’s consent, thereby permitting a flawed defence in cases of sexual assault.

This ruling represents a pivotal shift in how South African courts view consent, particularly in cases where survivors exhibit passive or involuntary responses to trauma, such as tonic immobility. The judgment acknowledges the complex psychological factors that may prevent survivors from clearly communicating non-consent, either verbally or behaviourally, thus rendering the “mistaken belief” defence untenable in such circumstances. This breakthrough addresses a critical gap in the legal framework, ensuring that consent must be objectively reasonable.

Lawyers for Human Rights (LHR) played a crucial role in this case, representing the Centre for Human Rights (CHR) and the Psychological Society of South Africa (PsySSA), who intervened as friends of the court. Their submissions highlighted the importance of considering psychological perspectives, such as peritraumatic responses, when assessing consent in sexual assault cases. The judgment specifically noted the significance of the friends of the court’s submissions, underscoring the role that peritraumatic responses play in affecting a survivor’s ability to communicate consent during traumatic events. This recognition of the friends of court’s contributions signals a key victory in the development of trauma-informed legal standards.

The judgment is a victory for survivors of sexual violence. By recognising that survivors’ inability to resist does not equate to consent, the court has set a new standard for justice in cases of rape and sexual assault. This is a crucial step towards making South Africa’s legal system more inclusive and empathetic towards the psychological realities faced by survivors. LHR is also pleased that the court explicitly mentions the submissions of CHR and PsySSA, affirming the value of integrating psychological insights into legal assessments of consent.

Looking forward, LHR is committed to ensuring that this ruling is upheld and that future prosecutions of sexual violence reflect this new understanding of consent. This judgment marks a significant development in the fight against gender-based violence, with far-reaching implications for both legal practice and survivor advocacy.

For further information, contact:

Kayan Leung | Head of the LHR Strategic Litigation and Gender Equality Programmes

Email: kayan@lhr.org.za

Tel: 011 339 1960

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