Rape: An unreasonable belief in consent should not be a defence
| Pages | 76-102 |
| Date | 06 July 2021 |
| Published date | 06 July 2021 |
| DOI | https://doi.org/10.47348/SACJ/v34/i1a4 |
| Author | Schwikkard, P.J. |
Rape: An unreasonable belief in
consent should not be a defence
PJ SCHWIKKARD*
ABSTRACT
Section 3 of the Crim inal Law (Sexual Offences a nd Related Matters)
Amendment Act 32 of 2007 de nes rape in the following terms: ‘Any person
(‘A’) who unlawfully and i ntentionally, commits an act of sexual penetration
with a complainant (‘B’), without the consent of B, is g uilty of the offence
of rape.’ This paper focuses on one component of the d enition, namely
fault. It is argued that a mis taken but unreasonable belief in con sent should
not be recognised as a defence and th at a normative approach could soften
the focus on the behaviour of the compla inant and send a clear signal th at
our commitment to const itutional values requires u s to take due care in our
interactions with ot hers. The argument is made with ful l awareness that law
reform is a very small cog i n addressing the scourge of rape.
1 Introduction
The Constitutional Cour t in the 2020 judgment S v Tshabalala128 noted
that:
Violent crimes like rape and abuse of women in our society have not abated.
Courts across the country are dealing with instances of rape and abuse of
women and children on a daily basis. The media is in general replete with
gruesome stories of rape and child abuse on a daily basis. Hardly a day
passes without any incident of gender-based violence being reported. This
scourge has reached alarming proportions. It is sad and a bad reection of
our society that 25 years into our constitutional democracy, underpinned by
a Bill of Rights, which places a premium on the right to equalityand the right
to human dignity, we are still grappling with what is a scourge in our nation.
* BA (Witwatersran d) LLB (Natal, Pieter maritzburg) L LM (Natal, Durba n) LLD
(Stellenbosch), Professor of Law, University of C ape Town.
1 2020 (2) SACR 38 (CC) at para [61]. See also R Jewkes & N Abrahams ‘T he
epidemiology of rape a nd sexual coercion in S outh Africa: A n overview’ (2002)
55 Soc Sci & Med 55; C Kapp ‘Rape o n trial in South A frica’ (2006) 367 Lancet 718 ;
L Vetten ‘Rape and other form s of violence in South Af rica (2014) 72, Institute for
Security Studies Policy Brief, available at https://is safrica. org/re search/po licy-br ief/
rape-and- other-forms-of-s exual-violence -in-south-afr ica, accessed on 28 Octob er
2020; L Vetten ‘Paradox and pol icy: Addressing rape in post-apar theid South Africa’
in N Westmarland & G Gangol i (eds) International Approach es to Rape (20 11)
169, available at htt ps://library.oapen.org/ bitstream/handl e/20.500.12657/30566/
645343.pdf? sequence=1&isAllowed=y.
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In the same judgment the court emphasised t hat the state has a
constitutional and international obligation to combat gender-based
violence. The limits of law reform in changing patterns of behaviour
is well recognised, however, a Lilliputian effort added to other bigger
or smaller efforts sometimes combi ne over years to shift collective
patterns.1 Law reform is often a necessary precursor for change but a
lot more has to happen for law reform to be effective.
In South Africa, as i n many other jurisdictions,2 acqu aintance rape
is the most common form of rape and the hardest to successfu lly
prosecute.3 Amongst the many factors that contribute to the failure
to prosecute at all or failed prosecutions is the m iasma of myths and
stereotypes that in form beliefs regarding consent to sexual penetration.
This paper focuses on one component of the denition of rape, na mely
fault4 and argues that a mistaken but unreasonable belief in consent
should not be recognised as a defence and that a normative approach
could soften the focus on the behaviour of the complainant and send
a clear signal that our commitment to constitutional values requires us
to take due care in our interactions with ot hers. The argument is made
with full awareness that law reform is a ver y small cog in addressing
the scourge of rape.
2 Rape in South African law
Until the end of 2007, the crime of rape was dened by the common
law as ‘unlawful, intentiona l sexual intercourse with a woman without
her consent’.5 The articial parameters of the common law denition
1 See generally, C MacKi nnon Feminism Unmodied: D iscourses on Life and Law
(198 7); L A rtz & H Combrinc k ‘A wall of words: Redening the offence of r ape in
South Afric an law’ (2003) Acta Juridica 72.
2 See J McEwan ‘Proving con sent in sexual cas es: Legislative change and c ultural
evolution’ (2005) 9 Internat’l J E vid & Proof 1 at 3; J Temkin & B K rahe Sexual
Assault and the Justic e Gap: A Question of Attitude (20 08) 50.
3 R Hirschowitz, S Worku & M Ork in Quantitative Re search Findings on Rape in
South Africa (2016) 10; M Kimani ‘Taki ng on violence against women in A frica’
2007 (21) Africa Renewal 4; N Abr ahams 2004 (1) ‘Sexual v iolence against women
in South Afr ica’ 2004 (1) Sexuality in Africa 4 ; S Estrich ‘Rape’ (1986) 95 Yale L J
1987; S Estrich ‘Teaching rape law’ (1992) 102 Yale L J 509; D Bryden ‘Reden ing
rape’ (2000) 3 Buffalo Crim L Re v 317 at 318.
4 T Illsey ‘The de fence of mistaken belief i n consent’ (2008) 21 SACJ 63 usefully
discusses th e defence but does not raise the po ssibility of subst ituting culpa for
mens rea.
5 J Burchell Princip les of Criminal Law 5ed (2016) 613. See N Naylor ‘The pol itics
of denition’ in L A rtz & D Smythe (eds) Should We Conse nt: Rape Law Reform in
South Africa (2008) 22 at 41 et seq for a detailed a nalysis of the law reform proce ss
in South Afr ica. See generally K Phelps, D Smy the & J Omar ‘Sec tion 3: Rape’ in
DSmyt he, B Pithey & L Artz Sexual Offences Commentar y Act 32 of 2007 (2019,
RS 2) hereinafter re ferred to as Sexual Offences Commentary.
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should not be a defence 77
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