October 16, 2025
Human Rights
Beyond “Honest Belief”: Towards a Reasonable Standard of Consent in South African Law
In South Africa, fewer than 1% of reported rapes result in conviction. This statistic highlights not only systemic challenges in policing and prosecution, but also the limits of our legal framework. At the center of these debates is the law surrounding consent. Under the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (“the Act’’), rape is defined as sexual penetration without consent. Yet the law allows an accused person to escape liability if they can show that they honestly believed there was consent, even where that belief is unreasonable. This approach has raised profound constitutional questions about dignity, equality, and bodily integrity, questions that are now before the Constitutional Court in the landmark Embrace Project NPC and Others v Minister of Justice and Correctional Services and Others case.
The Embrace Project, a non-profit organization dedicated to advancing women’s rights and tackling gender-based violence, together with a survivor of date rape, has challenged provisions of the Act in the Constitutional Court. Their argument is straightforward. Allowing an accused to rely on an “honest belief in consent,” even when that belief is unreasonable, undermines the very constitutional values that the Act was designed to protect. It means that a complainant’s dignity and bodily integrity can be overridden by an accused’s subjective state of mind, no matter how careless, misguided, or steeped in harmful stereotypes that belief may be.
The relief sought is not to abolish the existing consent framework, but to strengthen it. Embrace asks that the law be read to require an accused person to have taken objectively reasonable steps to ascertain that consent existed. In other words, it is not enough to assume agreement in the absence of resistance. A reasonable person would ask, pause when uncertain, and respect a withdrawal of consent. Embedding that requirement into our law would bring the focus back to respect for autonomy, rather than excusing negligence.
This case has drawn wide attention because it sits at the intersection of law and lived experience. South Africa’s gender-based violence crisis is not only a social emergency but also a legal one. Despite progressive constitutional protections, the country records some of the world’s highest rates of rape and femicide. A framework that allows perpetrators to hide behind unreasonable beliefs entrenches rape myths and contributes to the dismal conviction rate. By contrast, a legal test that demands reasonable steps to secure consent has the potential to shift both the law and broader societal norms, making clear that consent is active, continuous, and central to our constitutional order.
The urgency of this reform cannot be overstated. Gender-based violence is not only pervasive but normalized through silence and impunity. Too often, survivors are met with disbelief or blamed for their assault, while perpetrators face few consequences. The legal system, as it stands, reflects and reinforces these attitudes. Reforming the definition of consent is therefore not merely a technical legal exercise — it is an affirmation that every person’s body and autonomy are worthy of respect and protection.
South Africa is not alone in grappling with how best to define and protect sexual consent. Other jurisdictions have moved decisively towards clearer, survivor-centered frameworks. In Canada, for example, the Criminal Code, RSC 1985, c C-46, defines consent as the voluntary agreement to engage in sexual activity, and the courts have confirmed that consent must be ongoing and may be withdrawn at any time. Silence or passivity cannot be taken as agreement. This ensures that consent is not treated as a once-off event but as a continuous requirement throughout any encounter.
Similarly, Sweden’s “consent law,” introduced in 2018, requires affirmative consent. Sexual activity is lawful only where there is clear and active agreement. The law deliberately moves away from assumptions that the absence of resistance implies consent and instead places responsibility on individuals to ensure that their partners are willing participants. This approach has already led to an increase in prosecutions and convictions, reflecting how law reform can reshape social understandings of sexual autonomy.
These comparative examples show that strengthening the definition of consent is neither novel nor unworkable. Rather, it aligns South Africa with international best practice and with constitutional values of dignity, equality, and freedom from violence.
As South Africa confronts staggering rates of gender-based violence, the law cannot afford to remain out of step with lived realities. A conviction rate of less than 1% is not merely a statistic. It is a constitutional failure that erodes public confidence and denies justice to survivors. At its heart, the debate over consent is a debate over how seriously we take the rights to dignity, equality, and bodily integrity.
Clarifying that consent must be active, ongoing, and reasonably ascertained is not about lowering the standard of proof or unfairly burdening the accused. It is about aligning our legal system with common sense and constitutional principle: that no one should be subjected to sexual conduct unless their willing participation is clear. Respect for consent is not just a social expectation. It is the foundation of sexual autonomy and a non-negotiable element of justice in a constitutional democracy.
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