‘It’s a great relief,’ says rape survivor after court declares sections of Sexual Offences Act unconstitutional

A landmark ruling by the Pretoria High Court declaring sections of the Sexual Offences Act unconstitutional will offer new hope for victims of gender-based violence.

In 2022, non-profit organisation The Embrace Project, along with survivor Inge Holztrager, launched a case in the High Court to challenge how South African law defines consent in sexual offences. The case aimed to improve legal protections for victims of gender-based violence (GBV).

Court victory ‘big move in the right direction’

“It feels amazing to have won this victory. Although this isn’t the final step, it’s a big move in the right direction. Justice can be slow, and as someone who’s been through this process, I understand the frustration when justice isn’t served,” Holztrager said.

Holztrager, who was 20 years old at the time of the incident, reported a rape case in June 2018 after meeting a man online and then arranging a date with him, during which he had sex with her without her consent. Despite her testifying in February 2019, the accused was acquitted in March of that year. The court acquitted him on the basis that it could not be sure the accused subjectively knew he did not have consent.

Parts of Sexual Offences Act declared unconstitutional

However, on Monday the Pretoria High Court declared parts of the Sexual Offences Act unconstitutional. The judgment, awaiting confirmation by the Constitutional Court, will require accused individuals to take “objectively reasonable steps” to ensure the complainant consents to sexual activity. This means the law will shift from a subjective to an objective test for consent, offering more protection to survivors.

“After the trial, I often felt the justice system had failed me. I always hoped something positive could come out of my experience, even if I didn’t know what it would be and it is a great relief that ongoing and future sexual offences cases will be given a proper chance,” Holztrager added.

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The Embrace Project and Holztrager argued that current laws are not strict enough on those who claim they believed there was consent. They pointed out flaws in the Criminal Law (Sexual Offences and Related Matters) Amendment Act, saying it doesn’t do enough to address sexual violence.

Rape victim not resisting doesn’t mean consent

Director of The Embrace Project, Lee-Anne Germanos Manuel, called the ruling a major step forward for victims of sexual violence.

“For the first time, the law will require people to take active steps to ensure consent. The days of assuming consent unless there was clear resistance, like kicking and screaming, are over. Most victims freeze in such situations. This is a big change.”

The judgment also removes the defence that an accused person can rely on an unreasonable belief in consent, which often leads to acquittals.

“We took up this case because it mirrors the experiences of many victims. Often, rape cases don’t even make it to court, and when they do, they result in acquittals because the prosecution struggles to prove the accused didn’t believe they had consent,” she explained.

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In many cases, Manuel explained, defence lawyers argue that “passive consent” was given, meaning if the victim didn’t resist, the accused thought they had permission. The recent ruling changes that.

The Centre for Applied Legal Studies (CALS) also intervened, asking the court to go further and remove consent as a factor in cases involving consent. However, the court dismissed their application, while acknowledging the need for changes to the Sexual Offences Act.

“This ruling is a big step in closing legal loopholes around GBV cases. While CALS sought broader changes, we’re hopeful the Constitutional Court will reconsider their arguments on appeal. But even a small win is still a win,” Germanos said.

Germanos acknowledged that it remains difficult for victims, as they still have to prove there was no consent.

“This ruling helps, but we need more changes to ensure the law fully supports survivors. As long as some cases aren’t prosecuted, justice remains out of reach.”

“As a human rights lawyer, the mission is to improve the legal system so it works for victims and survivors. This case is a step toward refining the law, but there’s much more to be done to achieve true justice.”