Clarity, consistency, and community convictions: Understanding the defence of consent in South African criminal law

• Author: Omar, J.
• DOI: https://doi.org/10.47348/SACJ/v35/i2a1
• Published date: 03 October 2022
• Date: 03 October 2022
• Citation: (2022) 35 SACJ 131
• Pages: 131-155

Clarity, consistency, and

community convictions:

understanding the defence of

consent in South African

criminal law

JAMEELAH OMAR*

1 Introduction

This article wi ll consider the defence of consent and whether its

conception has changed over the years through jurispr udence. It will

focus on a few areas that have seen developments in relation to

the defence, namely, active euthanasia, sadomasochism, and sexual

offence s.

The Fifty Shad es of Grey1 series sparked a global di scussion about

the boundaries of sexual ac tivity. Obviously, a pop-culture reference,

but by nature of its subject matter of pain a nd pleasure, it raises

important legal questions along with related issues of sex, power, love,

and equality. These questions have not been interrogated in South

Africa yet in the context of sadomasochism, leaving a gap in the legal

discourse that this a rticle seeks to address. In addition, the pri ncipled

underpinnings of a defence of consent in the common law will be

discussed, both to tease out t he underlying theory and to evaluate its

consistent (or not) application.

Recent developments in defence of consent show that the underlying

justication for defences to unlawfulness – n amely, the boni mores

of society – has increasingly been fr amed as emphasising individual

autonomy as being central. This shows a move away from Ubuntu

and a more communal sense of the interests of so ciety, to a more

* LLB LLM (Cape Town), Associate Profess or, Faculty of Law, University of Cape Town.

This art icle was original ly published in PJ Schwik kard & SV Hoctor A Reas onable

Man – Essays in Honour of Jonathan B urchell (2019) 97–118 .

1 EL James Fifty Shade s of Grey (2011) and two sequels are a se ries of novels about a

relationship involving sad omasochism and t he complications which ar ise between

the dominant and s ubordinate, par ticularly where t he subordinate is less keen t o

participate in s uch activities. While not complex in ter ms of character development,

plot or even well-written, t he series popular ised issues of sex, pai n, pleasure, and

consent.

https://doi.org/10.47348/SACJ/v35/i2a1

131

(2022) 35 SACJ 131

© Juta and Company (Pty) Ltd

liberal understandi ng of the right to autonomy. While this framing

has not changed the law per se, it is an interesting development for

criminal law which conceives of wrongs against an individual as a

wrong against society as a whole. If taken too far, crim inal law may

stray too far into harm as a personal wrong, which is best left to the

civil law of delict.

The primary focus of the law of delict is compensation between

parties for harms caused, 2 such harms being physical, in relation to

property or reputation. The ma xim volenti non t injuria – loosely

translated as ‘there is no injur y where there is consent’ is of unclear

application, however, in criminal law. This is because the direct victi m

is not the only injured part y, as a crime is a wrong or an offence to the

community as a whole. Thus, ‘an individual can not by such consent

destroy the right of the Crown to protect the public and keep the

peace’.3

Different jurisdictions have different perspectives on the role and

reach of criminal law, and South Afr ica under apartheid, with a trend

that has seemingly continued, has a somewhat pater nalistic crim inal

law. This is a relevant factor in assessing consent as a defence.

This article is focused on the legal principles underlying consent,

as a defence to unlawfulness. ‘Consent’ and ‘defence of consent’ may

be used interchangeably throughout, unless the context i ndicates

otherwise. ‘Complainant’ a nd ‘victim’ may be used in dif ferent parts,

all of which refer to the person who consented to the harm being done

to them.

Section 2 will tr y to dene the defence of consent and reconcile it

with the general elements of crim inal liability. Section 3 will contrast

the competing values that must be balanced when assessing the valid ity

of a defence of consent, namely, individual autonomy, compared to

ubuntu. Three categories of offences are discussed in section 4 –

euthanasia, sadomasochism and rape – to assess consistency in the

application of the defence across these offences. Before concluding,

section 5 cautions that a lack of consistency in the application of the

defence of consent carries risk for consistency and clarit y of the law.

2 G Hughes ‘Consent in sex ual offences’ (1962) 25 Modern Law Revi ew 672 at 672.

3 R v Coney 1882 (8) QBD 534 at 567.

132 SACJ . (2022) 2

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