The Centre for Applied Legal Studies (CALS), affiliated with the University of the Witwatersrand, has applied to become a third applicant in a case challenging South Africa’s sexual offence laws.
According to Pretoria News, the case was first initiated in November last year by the Embrace Project and scrutinises what has been called ‘problematic’ definitions of consent and rape in the Sexual Offences Act, especially after its recent amendments.
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The appeal for legislative revision gained traction after the Eastern Cape High Court overturned a rape conviction in October 2021. In this case, Loyiso Coko had been found guilty of raping his former partner.
The judgement, which found that Coko mistakenly believed the complainant consented to intercourse after consenting to a kiss, ignited widespread public anger.
This contentious ruling is now on appeal and will be heard at the Supreme Court of Appeal on November 14.
CALS applied to join the case, representing the Initiative for Strategic Litigation in Africa, arguing that the issue stems from problematic definitions within the Sexual Offences Act.
‘The current definitions of rape and other sexual offences place an added burden on the state but also on complainants to show that they did not consent,’ said Dr Sheena Swemmer, the head of Gender Justice at CALS.
The organisation contends that not just recent cases but also historical offences should be reconsidered under any revised legislation.
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The current law places the responsibility on the prosecution to demonstrate that the accused did not mistakenly believe they had consent, even if that belief appears unreasonable.
CALS and other advocates argue that this perpetuates harmful stereotypes and myths about sexual violence, including the notion that victims must actively resist their attackers.
‘This process puts victims and survivors on trial, expecting them to demonstrate how well they resisted the accused, buying into harmful rape myths and stereotypes,’ explained Dr Swemmer.
Basetsana Koitsioe, an attorney at CALS, highlighted an alarming trend:
‘This discrepancy in how certain crimes are defined constitutes indirect discrimination. We have a situation in our law where offences that primarily affect women and gender minorities face an additional hurdle when being prosecuted.’
She emphasised that the high levels of attrition in sexual offence cases, where only a small fraction result in a conviction, cannot continue unaddressed.
The case is set to appear before the Supreme Court of Appeal. For now, victims and survivors are encouraged to come forward at any time to report sexual offences, as advocates continue to push for a justice system more reflective of the lived experiences of those it aims to protect.
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