The Constitutional Court is now deliberating a historic case that could fundamentally alter South Africa’s legal definition of sexual consent. The case questions whether the country’s current laws violate the constitutional rights of victims to dignity, equality, freedom, and security.
The legal challenge centers on a controversial defense in rape cases: the argument that an accused person held a genuine, albeit unreasonable, belief that the victim had consented. This defense was successfully used in a 2024 Pretoria High Court case, where a man was acquitted of rape after claiming he did not hear the victim ask him to stop and believed she was consenting.
The same High Court later declared this defense unconstitutional, arguing it unfairly shifts the burden onto victims and undermines their rights. The case was subsequently escalated to the Constitutional Court for a final review in 2025 by the Embrace Project.
During the hearing, Advocate Nasreen Rajab Budlender urged the apex court to reconsider how intent is assessed in sexual violence cases. Budlender argued that the current legal framework perpetuates harmful myths about rape.
“The notion that unless a woman screams or fights or tries to run away that she must be consenting to the act… that’s another myth,” Budlender stated. She emphasized that societal norms, which often blame victims, can influence the “subjective mindset of a rapist,” making it “virtually impossible for the state to prove [its case] beyond a reasonable doubt.”
Budlender proposed that when an accused raises consent as a defense, they should be required to demonstrate that they took “reasonable steps” to ensure consent was present.
The court also heard arguments highlighting the psychological responses to sexual assault. A spokesperson noted that common trauma responses like freezing, tonic immobility, and collapsed immobility are passive and “are likely to prevent a survivor from being able to communicate their lack of consent.” This reality, experts argue, makes a defense based solely on the accused’s subjective belief particularly problematic.
The outcome of this case is poised to have profound implications. If the Constitutional Court confirms the High Court’s ruling, Parliament will be required to amend the law. This could scrap the defense of unreasonable belief in consent, forcing an accused person to prove that reasonable steps were taken to establish consent.
In a nation where rape conviction rates are reported to be a shocking 10%, legal experts believe this judgment could reshape the prosecution of sexual offenses and potentially improve conviction rates. Judgment has been reserved.