How ‘I believed she consented’ defence undermines rape cases in South Africa: Video
A glaring gap in South Africa’s Criminal Law (Sexual Offences and Related Matters) Act 32 of 2007 is enabling perpetrators of sexual assault and rape to evade conviction.
Under the current law, a suspect can mount a defence simply by arguing, “I believe the victim consented,” shifting the burden on the State to disprove that subjective belief. Courts have accepted this argument in several high-profile and everyday cases, raising alarm among legal advocates and survivors.
In 2006, then Deputy President Jacob Zuma was charged with raping a 31-year-old woman known by the pseudonym “Khwezi.” During the trial, the court permitted questions about her sexual history, giving Zuma’s defence room to attack her credibility. The judge ultimately ruled the encounter was consensual and acquitted him, a decision that sparked public outcry about fairness to survivors.
The lacuna lies in how criminal intent is defined under the Act. As currently written, sexual offences defined by lack of consent rely on a subjective test of intent, with no requirement that a mistaken belief in consent be “reasonable”. This means an accused’s assertion, however implausible, may succeed unless the prosecution can exclude it beyond a reasonable doubt.
Into this breach steps The Embrace Project, a civil society organisation in South Africa, fighting for reforms, advocating for the amendment of the law that will shift the balance from a legal strategy that exploits survivors’ past towards a prosecution that focuses squarely on the alleged act.
The project is also pushing for special training for judges and prosecutors to safeguard victims’ dignity and privacy.
This story is written and edited by the Global South World team, you can contact us here.
