The Constitutional Court has reserved judgment after hearing oral evidence from parties who seek to have parts of the Criminal Law (Sexual Offences and Related Matters) Act, 32 of 2007, concerning consent, declared unconstitutional. 

The applicants, in their pursuit of law reform, have requested the court to declare certain sections of the Act unconstitutional and invalid, focusing specifically on provisions related to sexual offences where the absence of consent is a key element, particularly in cases of rape.

Embrace Project, a non-profit organisation which aims to combat gender-based violence, and rape survivor Inge Holzträger have filed an application challenging the constitutionality of the Act. 

Appearing for amicus curiae (friends of the court) the Centre for Human Rights and the Psychological Society of South Africa, Ruth Kruger, made submissions in respect of the psychological background to sexual violence.

Regarding peritraumatic responses, Kruger submitted: “These are responses that occur during or immediately after a traumatic event. In particular there is a spectrum of responses known as the defence cascade which is hard-wired into our psychology. 

“The first three responses in the defence cascade are arousal, then fight or flight and the freeze response. The fourth response in the defence cascade is tonic immobility or temporary paralysis. Tonic immobility may appear to be an extreme response but it is not an uncommon one,” said Kruger.

Kruger further submitted that a Swedish study in the phenomenon found that more than 70% of rape victims report of tonic immobility during the assault. 

Another response in the defence cascade was described as collapsed mobility/fainting which is a complete loss of consciousness or compromised consciousness.

“Responses to sexual violence take various forms and none of them is wrong. However it is worth noting that the peritraumatic, tonic immobility and collapsed mobility are all passive responses and more than that, they are likely to prevent the survivor from communicating lack of consent,” said Kruger. 

Embrace in their submissions said in practical terms, the victim must give evidence so compelling that it excludes any reasonable possibility that the accused believed consent was present.

“Even harder to adjudicate are cases where the victim consents to parts of the sexual encounter but not to others. An apt example would be where a person consents to penile vaginal sexual intercourse but does not consent to anal intercourse and is thereafter forced to engage in anal sex. Since consent is central to the offence, it becomes insurmountable for the victim to prove that there was no consent for the act and that such a lack of consent was clearly communicated to the perpetrator.”

Holzträger was raped in 2018 by a man she met through an online dating site. The court acquitted the accused on the basis that the victim had not objectively consented to the accused’s penile penetration, but she neither physically resisted nor loudly protested.

The trial court accepted that the accused had subjectively believed that there was consent despite her evidence that she was “shell-shocked and in a trance” and said the incident felt like an out-of-body experience where she had “frozen” – her reaction was described as peritraumatic stress. 

Last year Judge Selby Baqwa, invalidated certain sections of the Act and found that by enabling the defence of the unreasonable belief in consent, the Act violates the rights of victims and survivors to, among others, equality and dignity, and the right to be free of all forms of violence.

chevon.booysen@inl.co.za

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