The Need For The South African Jurisprudence To Limit The Statutory Definition Of ‘Rape’

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On the 11th of February 2020, the Sunday Times reported that a masters student from Nelson Mandela University had been acquitted of his charges of rape after appealing the decision to the Makhanda High court.  The Makhanda high court held that it could not prove beyond a reasonable doubt that four (4) glasses of wine and vodka could impair the person’s ability to consent to have sexual intercourse. Further to this, the court took into account the evidence of witnesses who had seen the victim and the alleged kissing, flirting and laughing.

The court‘s failure to establish non- consent in this case further inhibits the current legal system’s ability to support survivors of sexual violence. 

It is interesting that in establishing if consent was established between the two parties, the court had to consider if the victim was so drunk that she could ‘stagger and fall’ or not. This kind of cross-examination by the court suggests that it is only victims that stagger and fall that cannot give consent in which in a way then says that if you are drunk but are not staggering and falling then you should have given consent to the act of sexual intercourse. This sort of cross-examination by our courts perpetuates further violence to survivors because it does not seek to establish if actual consent, a mere yes/no was established prior to the sexual act.

According to the Sexual Offenses Act, consent means that the victim does not voluntarily or without coercion agrees to an act of sexual penetration. Consent further means that the victim is incapable in law of appreciating the nature of the sexual act, including where B is, at the time of the commission of such sexual act. Now, in taking this into consideration, it is very difficult to establish how a person who had drunk four glasses of wine and vodka could have a full appreciation of the nature of the sexual act. In addition to this, our law deems a mentally unfit person incapable of having sexual intercourse due to this same definition. 

This is in contrast to the rules that allow traffic police to pull you off the road if you’ve had a bit too many –  The limit of alcohol content for drivers is of 0,24mg per 1 000ml, or a blood-alcohol limit of 0,05g per 100ml to drive on the road.  In a tweet, Naledi Chirwa unpacks this very well. 

It is then very suspicious that a person can give uninterrupted consent to having sexual intercourse after having drunk four glasses of wine and vodka but the same person cannot drive. 

Now turning to the problematic aspects of the statutory definition of rape. Rape in terms of sexual Offenses Act is defined as

 Any person (‘A’) who unlawfully and intentionally commits an act of sexual penetration with a complainant (‘B’), without the consent of B, 

I have already touched a bit on consent; the one part that I seek to problematize in this aspect is the intention of the person to rape. It is for the insertion of intention that I believe that the definition of rape should be limited to focus on just consent. It would then read something like;

Any person (‘A’) who commits an act of sexual penetration with a complainant (‘B’), without the consent of B, 

I have consciously omitted to say anything about the lawfulness of the act. My biggest contention is that in so much as the definition of rape or rather the full Act tries to efficiently deal with rape from the point of view of the victims of rape, the insertion of intention totally overrides this. This is because, at present, the courts are tasked with the heavy burden of trying to establish if the alleged perpetrator really wanted to rape or was just having sexual intercourse with the victim. It then shifts the burden away from the victim when the victim tries to show that there was never consent to the sexual act, I think this aspect of the definition ‘consent’ is the one that we should be focused on as the violence perpetuated by rape is caused by the lack of consent to the act and not by intention or lawfulness.

In conclusion, we live in a very violent, patriarchal and misogynist society where men think that they own women’s bodies. It would then be a challenging task to convince a man who thinks that they have full ownership of your body to even begin to argue that they intentionally tried to rape you. In their misogynist selves, they were having sexual intercourse with you hence the need for the definition to be limited to just consent to curb this disease.

Thuli Zulu is a candidate attorney at the Centre for Applied Legal Studies (Wits) and a Human Rights law candidate (UP). 

The views expressed here are the author’s personal opinion and do necessarily reflect the editorial policy of The Daily Vox. 

Image via Public Domain Images

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