Rape victims get more protection under law

'You have to make the effort to find out if man or woman is genuinely consenting"

Inge Holztrager, the woman whose horrific ordeal has led to the groundbreaking change of the Sexual Offences Act to redefine the obligation to determine consent in rape cases, feels validated that her trauma has brought positive change. 

On Monday the Pretoria high court declared sections of the act unconstitutional, removing the ability of perpetrators' reliance that their victims genuinely gave them consent. The accused person will now have to ensure that consent was given even though the victim might not have physically or loudly expressed it. 

In his judgment delivered on Monday, judge Selby Baqwa said: "All the suggested amendment to the law seeks to suggest is a test that will require a perpetrator to explain the objective steps he took to establish the presence or absence of consent prior to the alleged rape."

Speaking to Sowetan yesterday, Holztrager, who was raped six years ago and was the second applicant in the matter, said she burst into tears of joy and relief after hearing that the court will now amend the act's sections which aided her rapist to be acquitted.

She and The Embrace Project, an NPO, challenged the act for permitting the perpetrator to avoid conviction by raising the subjective test defence, where the perpetrator subjectively and unreasonably believed the victim consented to the act. This results in the acquittal of accused rapists, unless the state has proved beyond reasonable doubt the accused’s subjective belief was incorrect.  

Holztrager and the NPO had been fighting to have sections of the act changed, said she wanted "something positive" to come from her experience.

According to the judgment, Holztrager was invited to the man's home for a party only to find out she was the only guest when she arrived. She had met the man online.  

The accused was, however, acquitted after the court found that Holztrager had not "objectively consented" to him having sex with her but that she neither physically resisted nor loudly protested.

The 26-year-old said she brought the application because "it was the right thing to do because it will make a big impact on future victims and survivors of gender-based violence and from the beginning I have said that I wanted something positive to come out of this terrible thing that had happened to me and this is how I ended up being part of [this case]".

She said she had followed the NPO on Instagram and had submitted an answer following questions that were posed. While she did not remember the questions, Holztrager said she remembers saying: "The justice system had failed me." 

"Lee Anne [Germanos Manuel, the NPO's director] messaged me about my response and then after a couple of months later they asked me if I wanted to be part of the case because there was a gap in the law," she said.

The general statistics that are churned out by the police, the media and social media underline the fact that the elimination of GBVF is not done yet.Researcher Lisa Vetten

"It feels good to know that we are on the right track and that the judge and the high court see the validity of what we are doing."

She said her healing was a long process

"It goes through phases I suffered from PTSD [post traumatic stress disorder] and I had to take a break from university and it is not something you get over and you don't just put it behind you. It is part of your story for the rest of your life."

Another case that was considered was that of Loyiso Coko, who was accused of raping his then-girlfriend in 2018, who had explicitly said "no" to his sexual advances after they started kissing.

At the time, the two had agreed that they would not have sex because the woman was not ready. However, Coko had sex with her, and argued that the woman's body language gave tacit consent to penetration.

Coko, a former paramedic, was then acquitted of raping his girlfriend but in April, the Supreme Court of Appeal overturned his acquittal.

Manuel said yesterday it is almost impossible for prosecutors to prove beyond a reasonable doubt that the accused intended to commit rape if there had been no resistance by the complainant.

"Now with this judgment, we are saying that the way it [the act] exists it infringes the constitutional rights of the victims and survivors. It infringes on their right to dignity and equality, to bodily integrity, and to the freedom and security of their persona and the court agreed," she said.

Baqwa also said he was of the view that an accused's right to a fair trial will not be prejudiced in a prosecution if the required standard changes to an objective test.

"The general statistics that are churned out by the police, the media and social media underline the fact that the elimination of GBVF is not done yet," he said.

Researcher Lisa Vetten said the ruling would assist in "getting past the problems where judges or magistrates are hampered by the law in terms of this question of whether or not an accused person genuinely believes a woman had consented even if his beliefs are mistaken".

"That has always been a terrible problem, and the court now [says] that is simply not good enough; you have to make the effort to find out if you are dealing with a genuinely consenting woman or man. That is a very important recognition and it puts that kind of responsibility in place."

The judgment will now be taken to the Constitutional Court for confirmation before it moves to parliament to correct the law defects.

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