Consent is not the same as submission. Consent requires submission, but submission does not require consent. So when someone submits to something, it doesn’t mean they consent to it. This is important because our rape legislation is the only legislation in the country which specifies that the burden of proof rests on the survivor of the crime. In all other cases, the responsibility to prove innocent rests on the alleged perpetrator. In cases of rape, it is the duty of the survivor to prove that she or he did not consent.
This burden is a heavy one, and is worsened by our problematic rape legislation. In fact, as Zapiro’s many comics show, the criminal justice system — including the courts– subjects the survivor to further trauma and victimisation. Yes, The Criminal Law (sexual offences and related matters) Act 32 of 2007 is a landmark piece of legislation in our history, and when compared with other countries in southern Africa. But when you’re best of a bad bunch, it’s not much to celebrate.
So in the interest of avoiding the label “whinge bag” what was the other option? Well, many civil society organisations pushed for the inclusion of coercive circumstances, rather than lack of consent as the thing that would mark out an act of sexual violence. Countries like Namibia have included coercive circumstances in their legislation, and in the Namibian example, these can be summarised as:
a) the application of physical force on the complainant or a person other than the complainant
b) threats of force (verbal/conduct) as described in a)
c) plausible threats of harm to the complainant
d) circumstances where the complainant is under 14 and the perpetrator is more than 3 years older than the complainant
e) circumstances where the complainant is unlawfully detained
f) circumstances where the complainant affected by
i) mental or physical disability
ii) drugs or alcohol
iii) sleep
The South African decision-makers in Parliament decided to exclude the recommendations for these inclusions because they were deemed “too vague”. In doing so they condemned survivors of sexual violence to proving that they had not consented. Surely consent is a far more blurry term?
Does consent mean saying yes or no? Does consent mean indicating with your actions yes or no? Does consent mean signing a paper to say yes or no? There are far more grey areas when you use a broad term like consent than when you specify conditions. Perhaps this is what they had hoped would protect the survivor, but instead it merely placed them in the difficult position of justifying their actions, trying to prove their innocence rather than that responsibility being placed on the perpetrator.
It is a failure of justice.
Given the response to Ms de Jongh’s beating by her superior in Harare, it would seem that our government doesn’t take women’s rights seriously at all. Patriarchal rights are far more lauded by society at large than the rights of women and children to their own bodies.
Catherine MacKinnon: ‘Where coercion definitions of rape see power – domination and violence – nonconsent definitions envision love or passion gone wrong. Consent definitions accordingly turn proof of rape on victim and perpetrator mental state: who wanted what, who knew what when. This crime basically occurs in individual psychic space. Coercion definitions, by distinction, turn on proof of physical acts, surrounding context, or exploitation of relative position: who did what to whom and often, in some sense, why. This crime takes place on the material plane.’
The author of this article has made a mistake. There is no crime in this country where the onus is on the alleged perpertrator to prove his innocense, but is in fact the other way round. The state not only has to prove a persons guilt, but guilt beyond a reasonable doubt. Therefore you have the right to remain silent, and if the state could not prove its case, under section 174 of the criminal proceedure act, the presiding officer will be obliged to dismiss the charges, or alternatively find the accused not guilty.
In any event, there is a maxim in the law which states…’He who alleges, must prove!’
This is the reason why the accuser have to prove thier accusation.
We need to keep in mind that the legislator has to strike a balance, in order for the justice system to be equitable and fair, and we cannot merely assume guilt on someones say-so. There has been many cases where rape was claimed, but in the course of the trail, it came to light that this was not the case.
The Praetor
In all criminal cases it is not the responsibility of the accused to prove they’re innocent, but rather that of the prosecution to prove guilt. Rape is no different and it rests on the state to demonstrate a lack of consent.
The Namibian law is wrong to include being under the influence of drugs or in effect tired. This opens the door to widespread abuse by those who regret engaging in sex or merely wish to hurt the other party. One thing that can mitigate this would be harsh penalties for making false rape accusations. If it can be shown that the accuser lied they should at a minimum face the same prison sentence as that for rape.
This is tragic, concidering the extremely high rates of just the reported cases of rape. I have read here that it is even a part of the culture for youths to be goaded into rape, to belong. Stigma must be attached to this overwhelming problem. Perhaps Jacob Zuma should put this on his list of high priorities, such as HIV infection and corruption.
Its tough one because the the only verifiable evidence is forced entry. The other points are easily disputable.Another thing is that as guys we dont give up at first rejection of our advances because women to expect us not to.
We need a lawyers opinion on this.
Our bad laws have resulted in Rape becoming second only to soccer as our national sport.
Its a disgrace but something that happens between 2 people is always going to be difficult to prove unless physical violence occures and the victim has identifiable ‘scars’ to show for it.
A rapist is the shame of all men and even one a year is too much, never mind one every minute or two. South Africa is sick and our courts support the criminals and care nothing for the victims.
@ Praetor and Dan, whilst there may be cases where a false accusation is made, I would argue that there are many (even as many as ten times more) cases that aren’t reported, because the survivor fears the court procedure, and how he or she will be made to look – oversexed or ‘wanting it’.
A rape survivor is already deprived of power because in crimes of rape it is not the survivor vs alleged rapist(s), it is the state vs alleged rapist(s). The survivor becomes only a witness to a trial about her or his own life.
Very few cases stay all the way to the end of the trial because of the secondary trauma and victimisation that a rape survivor is subjected to through the CJS and the SAPS and the medical exam.
If it gets to court, I’m willing to bet that that survivor is not making a false accusation, but wants to see justice for a rape that has happened.
My Lawyer friend has just corrected me on the burden of evidence – “burden to proove in other cases rests with state – we have a constitutional presumption of innocence it never rests with perpetrator – that would be unconstitutional”
So apologies for that error. Nevertheless, my argument still stands. Our law does not protect rape survivors.
Many delicts have a consent component to them, but somehow consent usually only becomes an issue in rape matters. The phrase ‘volenti non fit iniuria’ is used by lawyers to try and explain how it is we allow assault by surgeons, rugby players and dwarf tossers. Having a knife taken to you, being mashed by large men in a rugby game, and having someone throw you across the room are usually assault – but the ‘consent’ element makes them not actionable so you can’t sue.The convention is however, that once you have some kind of evidence of coercion (like the surgeon held you up at gunpoint and stole your kidney) the case will turn on what the surgeon did. There is no assumption that you might, perhaps, have just being paying hard to get. That’s the problem with rape matters – why does my state of mind matter? If I had a moment where I thought maybe donating a kidney was a good idea, it doesn’t mean I’m happy when I wake up with a 20 cm scar in my lower back. (To extend the metaphor to breaking point.)
Miss Thorpe, how can you post such bias commentary on this platform and then just apologise for being factually incorrect, and then continue your bias rant? Rape is a serious issue and I want no part of it. It really riles me when all men are treated as potential rapists because they have a penis.
Get some perspective, and get your facts right, then post, please! You last post about 1 boy 1 girl was abysmal. Double fail
Further feedback from another respected lawyer: “the problem is also that “absence of consent” (or “absence of coercive circumstances”) needs to be proved by the prosecution? it’s difficult to prove the absence (rather than presence) of something.”
“you have to admit that our law recognises the same circumstances as the namibian law to make consent invalid. so if consent was obtained through physical violence, threats, etc. there was no consent. so how is this different from the namibian legislation? or why would it be preferable to have “coercive circumstances” rather than consent?”
So this is something to think about. Is there a way that we can make the law more justice. Of course, we want to protect the rights of the survivor, but also recognise that the accused also has rights that need to be protected so that the law can be just.
Perhaps the question then is can the law ever be just? Is justice through the law possible?
GarethV – why the complex? You seem very touchy on this subject.
I don’t think I said anything about all men being rapists and let me state categorically that I don’t think all men are rapists.
My argument is that the law doesn’t protect rapists. These lawyers haven’t changed that argument, they’ve just provided more details about it. And they’ve shown that perhaps law isn’t capable of protecting survivors (male or female).
No complex Miss Thorpe just get the facts right before banging the drum…thats all I ask.
I am merely touchy toards your complete failure to report the facts on what is a very tiouchy suject with very fine lines…dont fudge the facts.
Perhaps what we need is for all activities of a relationship nature to be preceded by a formal contract indicating what will and/or what will not take place during the encounter. Any deviation from the agreed contract shall be presumed to be rape.
This obviously would exclude random acts where such a contract would not exist. Nonetheless the evidence seems to be that in the majority of cases the rapist and the victim have some association.
This may be tedious and unromantic however it does seem that short of some radical action this issue which has raged for decades will never be resolved.
@jennifer I agree with you, the SA situation is a failure of justice.
Jen, when you deal with legal topics try to be more precise. In your comment @ 3:21pm its “the problem is also that “absence of consent” or “presence (rather than absence) of coercive circumstances”
Then in 2nd to last paragraph u write:
..”Is there a way that we can make the law more justice”. should read “just” I would guess.
In answer to your question: Justice through law is possible if the law is dispensed as the legislators intended.
Jennifer. You’re not exactly getting to the nub of the rape problem in SA today with this discussion. To place things into proper New (unimproved) South African perspective: rape victims have less to fear over the litigious nuances, technical descriptions or legal jargon in The NuSA, than they do for those in charge of investigating, protecting, defending and charging rapists in the present climate of hate, fear and apathy that permeates throughout The NuSAns society today.
This discussion over the letter of the law would be more appropriate in a place like Sweden, where rape victims don’t have police officers chortling in the corner at their plight, or have ‘lost’ evidence, dockets pilfered, or lethargic, over-fed, under worked, useless and illiterate investigating officers to worry about.
Humiliation, pathetic crime solving stats, useless police officers, a government that cares less for it’s Constitution, than it does the people it pretends to protect, and a raft of other issues is enough for your typical SA rape victim to worry over, than what constitutes an approval or consent for sex in SAs legislation.
This blog proves beyond a shadow of a doubt that your average (a low bar, I grant you) NuSAn has no grip on reality, or what constitutes as ‘normal’.
My deepest sympathy goes out to the over hundred rape victims in NuSA every day, 99 of which will never see any justice never mind the ‘luxury’ of haggling over legal descriptions or dissecting jargon.
@Dan and Praetor: thanks for clarifying, I was wondering if the SA justice system had been turned upside-down! Burden of proof should always rest with the prosecution.
Moreover, it *should* be the state vs. perpetrator rather than victim vs. perpetrator. Other crimes–physical assault and battery, theft–would be the same, even if you feel this makes them spectators. The crime is against not only the victim but the fabric of the community. It should not be solely the victim’s decision to prosecute (although it becomes her decision in a de facto manner because if she refuses to be involved, there is no evidence) because the point is that the perpetrator remains a threat to society, not only to her. Therefore the state has an interest in getting justice for the broader society, not only the one victim.
Jennifer, GarethV did not say anything about you saying all men are rapists, but that all men are potential rapists.
That is a sentiment you have expressed previously.
http://www.thoughtleader.co.za/jenniferthorpe/2009/10/07/once-a-criminal-always-a-criminal/
“This is something we need to get over right this second. All men can rape.”
Hey Jen
I just finished my first criminal law module so I’m rather new to this but I was reading up on consent. What I’ve noticed, and I think someone with more clout could perhaps verify, is that the case law has covered a fair amount of ground. I know that the matter of submission has been ruled on and been determined not to constitute consent. Also consent must be voluntary (not coerced) – from what I’ve read coercion needs to be proven though. I know that a person can’t give consent if intoxicated, unconcious, mentally ill etc. and consent must be given expressly or tacitly with the person being fully aware of the material nature of the act (who they’re doing it with, why, where, how etc).
I think what you’ve noticed is that the statute is pretty lean, but that seems to be the nature of law. Statute can’t cover every contingency and so keeps provisions down to the basic elements and instead allows the courts to take into consideration the facts of the case, the commmon law (the centuries of accumulated Roman and English legal norms) and from there develop our own law. It could be argued that this better serves the interests of justice.
This is very well said.
Thank you
In general the article is valid; it didn’t say that the burden of proof lies with the accused, but with the complainant. Technically incorrect, as the state supposedly conducts the case on behalf of the complainant, but let’s not be too pedantic…
My other comment is that saying that “consent requires submission” suggests an unfortunate assumption of passivity. If two people agree to do something that they will enjoy, neither is submitting.
Having to prove consent is highly problematic. it just further entrenches inequality between men and women. Mkinnon argues that when establishing consent to sex in law, it does not look to see if the parties were social equals; it doesn’t require mutuality and it doesn’t require positive choice in sex (Mkinnon 2005 Women’s Lives, Men’s Laws 243). the problem with the consent issue is that in just keeping quiet for fear of your life or safety manages to pass for consent. ultimately, as Artz and Smythe note in Should we Consent?Rape law reform in South Africa, p27 – it needs to be acknowledges that sex under conditions of inequality can look consensual and this is the inherent danger of relying on a consent approach.
Our law does protect to a degree as ‘coercive circumstances’ In Namibia, Canada and the like show that in varying situations ‘consent’ would not occur (e.g. consent can never occur when there is application of physical force. What is clear however is that our legislature could’ve included ‘coercive circumstances’ and chose not to for some reason. Our legal system is not preventative, but rather responsive, and hence the issue that as a society we need to condemn these acts and, as women and men, speak out against them. Sadly, more often than not law does not equate with justice and vice versa, especially within a society where the police, courts etc are understaffed and under-resourced with, currently, little accoutability.
My wife and I have a friend who admits to having been raped. Her comment is that it has taken years to reach the point of being able to talk relatively freely about it, and even so it is not something she mentions lightly or flippantly; generally she mentions it only when appropriate and necessary to establishing her credentials in a discussion of abuse and recovery.
Do I pity her? No. Do I respect her? Hugely. Do I admire her? My admiration for her knows no bounds. But my respect and admiration (and absence of pity) have less to do with the fact that she was raped, that she survived, that she has recovered, that she helps other people to recover, that she is beautiful, than with the fact that she is a wonderful person of immense emotional and spiritual maturity. In short, because of the person she is, we are privileged to have her as our friend. I cannot categorise her as a rape victim or even a rape survivor because she is a whole person and far greater than any label anyone would like to pin on her. Do rape survivors deserve pity, respect or even admiration because of their experience, or because they are willing to speak out against rape? Perhaps. But I prefer to relate to my friend as a person rather than as a category, an example or even an icon. She is herself and I would not, could not want her to be any different.