Could South Africa's rape laws finally treat sexual violence like other violent crimes?

CapeTalk's Lester Kiewit chats to Dr Sheena Swemmer, Head of Gender Justice at the Centre for Applied Legal Studies.

Listen to their conversation in the audio clip below:

The Constitutional Court is deliberating a landmark case that could change how the law treats consent in sexual offence cases. 

Currently, prosecutors must prove that a victim did not consent, unlike in other violent crimes, such as assault, where the burden of proving consent falls on the accused only as a defence. 

"In sexual offences, we have the unlawful action, which is the violation of someone's body. It negates consent. There’s no consent in that. So why don't we treat it like other violent crimes and have the accused person, rather than the victim, prove that consent was absent? Or in the instance of an accused person, proof of consent was present."

- Dr Sheena Swemmer, Head of Gender Justice - Centre for Applied Legal Studies

Swemmer argues this places an unfair burden on survivors and makes prosecutions more difficult.

She says the aim is to align sexual offence laws with other violent crime laws by removing the definition of consent from the crime itself. 

The case also seeks to clarify whether an accused person can rely on a mistaken belief in consent, even if it’s unreasonable.

Swemmer emphasises that while legal reform is vital, true change must happen in society.

"…what we have to really remember is ultimately changing the laws is the easy part...even though it's incredibly difficult…Unfortunately, that's not just the job of people like me, lawyers; that's the job of all of us. Law must make the path open, but it's everybody else now that also has to assist on the way."

- Dr Sheena Swemmer, Head of Gender Justice - Centre for Applied Legal Studies

ALSO READ: Rape convictions expected to increase after court declares parts of Sexual Offences Act unconstitutional 

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