CALS challenges definition of sexual offences in Constitutional Court
- Lee-Anne Gaertner
CALS is represented by in-house counsel Mx Letlhogonolo Mokgoroane and attorney Dr Sheena Swemmer at the Constitutional Court
On 25 September 2025, the Centre for Applied Legal Studies (CALS) is set to appear in the Constitutional Court for a case with important implications for how sexual offences are prosecuted. CALS argues that including consent in the definition of sexual offences places an added burden on victims and survivors of sexual violence compared to other violent crimes.
Consent is an important concept in criminal law. For some crimes, consent can be used as a defence in court. For example, if a person is accused of the crime of assault – which is defined as the unlawful and intentional application of force against another person – they may be able to argue that they had the complainant’s permission to use force against them and should be found not guilty. This defence is what allows people to play contact sports such as boxing or rugby, for instance, without fear of being arrested for assault.
For sexual offences, on the other hand, consent forms part of the definition of the crime. For example, sexual assault is defined as the intentional and unlawful sexual violation of another person without their consent. Consent is no longer just used as a defence, but an element of the crime which needs to be proven beyond a reasonable doubt by the prosecutor in order to secure a conviction. Because of the nature of sexual offences, there is often only one witness to the crime: the complainant. This places an added burden not only on the prosecutor but also on victims of sexual offences to convince the Court that they did not consent.
The Centre for Applied Legal Studies (CALS) argues that the inclusion of consent in the definitions of sexual offences discriminates against victims of these crimes – a majority of them women and gender diverse people. Not only does this violate the right to equality, but also to human dignity and the right to be free from all forms of violence. CALS therefore joined an important case, first brought by the Embrace Project and an individual rape survivor, challenging certain sections of South Africa’s criminal law which deal with sexual offences.
On 30 September 2024, the High Court in Pretoria handed down judgment in this case, declaring portions of the Criminal Law (Sexual Offences and Related Matters) Act unconstitutional. The judgment, however, dismissed CALS’ application to remove consent from the definitions of sexual offences. The Court found that the inclusion of consent in these definitions was a policy decision taken by the South African legislature, and invoked the doctrine of the separation of powers.
The High Court’s finding of constitutional invalidity will need to be confirmed by the Constitutional Court. CALS is therefore taking this opportunity to appeal the judgment – only to the extent that it dismissed our application. CALS will argue that the High Court failed to conduct a proper constitutional analysis of our case or to evaluate our expert evidence. We maintain that courts are legally obligated to ensure that the other branches of government exercise their power in a way that is consistent with the Constitution. Removing consent from the definition of sexual offences is in line with this principle and with South Africa’s obligations under international law.
“The current definitions of sexual offences are unconstitutional,” says Sheena Swemmer, head of Gender Justice. “They place an added burden on victims of sexual violence, meaning that their actions become the focus of the court’s attention and they feel like they are being put on trial. This is an example of indirect discrimination, since victims of sexual offences are primarily women and gender minorities.”
CALS is represented in the matter by in-house counsel Mx Letlhogonolo Mokgoroane and attorney Dr Sheena Swemmer.
Read our heads of argument in the matter here.
Read our expert evidence from Dr Jameelah Omar here.
For inquiries, please contact:
Dr Sheena Swemmer (Head: Gender Justice) at Sheena.Swemmer@wits.ac.za