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The Embrace Project is taking the current legal meaning of sexual consent to the High Court

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Tasnim Adams

| Clarence Ford talks to Lee-Ann Germanos, director and co-founder of the Embrace Project, about challenging definitions of rape and consent.

As South Africa grapples with a massive rape crisis, more is being done to explore the understanding of sexual consent, and activists against gender-based violence believe a clear definition is needed.

In light of this, Project Embrace is launching a ground-breaking constitutional challenge against the problematic definitions of consent and rape in the recently amended Sexual Offenses Act in the High Court in Pretoria on Monday.

Minister of Justice and Execution of Penalties, President. and the Minister for Women, Youth and Persons with Disabilities are cited as respondents.

In today’s law, this is not enough to prove that the accused committed an act of sexual penetration without the consent of the complainant.

In addition, it is necessary to prove that, in the subjective state of mind of the accused, he/she/they intended to rape the applicant, despite the fact that the applicant did not consent to sexual penetration. A subjective test is applied in South African law when it comes to rape charges.

Zane Johnson spoke with Lee-Ann Germanos, director and co-founder of the Embrace Project, to learn more about the case.

A big obstacle to this definition is the element of intentionality. Intention in South African law requires the use of a subjective test. It is not enough for the prosecution to prove that there was an act of sexual penetration without the consent of the applicant. They must go even further and show that in the criminal’s state of mind they intended to rape the complainant. So the more perverse your views on consent, the more likely you will be acquitted of rape because the element of intent cannot be proven.

Lee-Ann Germanos, director and co-founder of the Embrace Project

Germanos said the subjective test is not only regressive, but has also proved to be an almost insurmountable obstacle to convicting the defendants, which prosecutors have been unable to prove.

This creates problems for judges handling rape cases.

The second applicant in the Constitutional Court is actually a rape victim who experienced it first hand.

In the court decision, the judge states that it was very clear that the complainant did not consent to the sexual penetration. While the perpetrator was a brazen, unreliable witness, the State simply could not prove that in his subjective state of mind he intended to rape her. She [the victim] didn’t resist physically or yell “no” enough to hear her. She [judge] had a hard time expressing its opinions and went so far as to say that it did not consider this requirement of intent to be constitutional.

Lee-Ann Germanos, director and co-founder of the Embrace Project

Hermanos recommended that the Constitutional Court introduce an interim remedy and that Parliament reconsider the definition of consent.

At this point, relying on a subjective opinion that the complainant consented to the conduct in question should not be a valid defense to the accused unless the accused took objectively reasonable steps to ascertain that the complainant consented to intercourse .

Lee-Ann Germanos, director and co-founder of the Embrace Project

Scroll up to listen to the conversation.

This article first appeared on CapeTalk: Project Embrace takes High Court on modern legal meaning of sexual consent

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