The General Statistics of Gender-Based Violence and Feminism (GBVF) in South Africa have been criticized for not being fully eliminated. Inge Holztrager, a woman who was raped six years ago, has led to a groundbreaking change in the Sexual Offences Act to redefine the obligation to determine consent in rape cases. 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, judge Selby Baqwa said that 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. 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.
Holztrager 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, saying 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 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. Researchers Lisa Vetten said that 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."
The judgment will now be taken to the Constitutional Court for confirmation before it moves to parliament to correct the law defects.
