The Embrace Project, a non-profit organisation which aims to combat GBV and femicide in the country, launched a constitutional challenge against the prickly definitions of consent and rape in the Sexual Offences Act.
Their success marks a victory and important stepping stone in South Africa’s ongoing battle against the worsening national crisis, Cape {town} Etc reports.
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The court system often subjects victims of sexual violence to immense difficulty when attempts for justice are undertaken.
The Embrace Project believes that the recent high court ruling on sections of the Sexual Offences Act could bring about positive change.
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An application was launched by the Embrace Project in November, 2022 and the matter was heard in July, 2024.
The applicants to the matter argued that the State has failed to take necessary and effective measures to respect, protect, promote and fulfil the fundamental rights of women and children.
On 30 September 2024, the Pretoria High Court delivered a judgement which declared certain provisions in the Sexual Offences Act unconstitutional.
It is however important to note that the judgement, though a remarkable success, still needs to be confirmed by the Constitutional Court before any amendments are to be made.
In the judgement, it was ultimately decided that the selected provisions failed to protect GBV victims against legal bias which favoured perpetrators.
The current Act does not criminalise sexual transgressions, wherein the perpetrator incorrectly and unreasonably believes that the complainant was consenting to the sexual act.
Thereby, victims had to prove not only that a sexual transgression occurred without consent but also that the wrongdoer held the subjective intention to rape the victim.
The new law will require that an accused person take the ‘objectively reasonable steps to ascertain that the complainant (the victim) consented to sexual conduct.’
This essentially means that the state of mind and belief of the wrongdoer has less traction before the court and instead, the court will opt for an objective review of the circumstances.
Should the constitutional court confirm the judgement, the victim will no longer need to prove the subjective intention held by the accused.
In the High Court Judgement, Judge Selby Baqwa, ultimately held that sections 3,4,5,6,7,8,9 of the Sexual offence Act are declared unconstitutional, invalid and inconsistent with the Constitution to the extent that these provisions do not criminalise sexual violence where the perpetrator wrongly and unreasonably believed that the complainant was consenting to the conduct in question.
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