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Criminal Law: Defence of Unreasonable Belief in Consent Declared Unconstitutional

Introduction

The recent High Court ruling in Embrace Project NPC and Others v Minister of Justice and Correctional Services and Others 2025 (1) SACR 36 (GP) marks a significant shift in South African criminal law relating to sexual offences. The court declared the defence of an unreasonable belief in consent, which previously allowed accused persons to evade conviction for rape by claiming they mistakenly believed the complainant had consented, unconstitutional. This judgment not only strengthens the legal protection of victims but also aligns South African law with international standards that prioritize affirmative consent.

Background of the Case

The case was brought by Embrace Project NPC, a non-profit organization advocating against gender-based violence, along with the second applicant, Ms. H, a survivor who had seen her attacker acquitted due to the now-invalidated defence. The applicants challenged the constitutional validity of sections 3, 4, 5, 6, 7, 8, 9, and 11A, read with section 1(2) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.

These provisions permitted the acquittal of an accused if they subjectively believed that the complainant had consented, regardless of whether that belief was reasonable or justified. The applicants argued that this legal position violated the constitutional rights of victims by failing to require accused persons to take reasonable steps to ensure that the complainant had consented to sexual activity​.

Key Findings of the Court

Violation of Victims’ Constitutional Rights

Justice Baqwa ruled that the defence of unreasonable belief in consent:

• Infringed the rights to equality, dignity, and freedom from violence as protected under the South African Constitution.
• Perpetuated gender-based violence and discrimination by allowing perpetrators to escape liability based on subjective perceptions.
• Failed to align with international human rights obligations, such as those outlined in the United Nations’ Convention on the Elimination of Discrimination Against Women (CEDAW)​.

Suspension of the Declaration of Invalidity

The declaration of unconstitutionality was suspended for a specified period to allow Parliament to amend the Act accordingly. This still means the judgement and provisions thereof will remain effective until legislative reforms are implemented​.

Interim Legal Provision

To prevent further injustices, the court ruled that during the suspension period:

“It is not a valid defence for an accused person to rely on a subjective belief in consent unless he took objectively reasonable steps to ascertain that the complainant had consented to the sexual conduct in question.”

This interim measure ensures that accused persons cannot simply claim ignorance but must demonstrate a reasonable basis for their belief in consent​.

Legal and Social Implications of the Judgment

Strengthening the Legal Standard for Consent

The ruling shifts South African law toward an affirmative consent model, which requires clear, voluntary, and mutual agreement between parties before engaging in sexual activity. This aligns with best practices in jurisdictions such as Canada, England, and Wales, where courts require an accused to take reasonable steps to confirm consent​.

Eliminating Rape Myths and Victim-Blaming

The decision addresses harmful myths often present in trials, such as:

• The assumption that a complainant must physically resist for non-consent to be valid.
• The misconception that once a person consents to some form of intimacy, they consent to all sexual acts.
• The belief that perpetrators are always violent strangers, ignoring the reality that most rapes occur within relationships or social circles​.

By removing the defence of unreasonable belief, the court ensures that focus shifts from the complainant’s actions to the accused’s responsibility in obtaining clear consent.

Impact on Gender-Based Violence Cases

South Africa has one of the highest reported rates of rape and gender-based violence globally. In 2024 from April to June, police data recorded over 9,309 reported rape cases in just three months.  Low conviction rates and legal loopholes have contributed to a culture of impunity for sexual offenders​.

This ruling is a major step in addressing systemic failures in prosecuting sexual offences and ensuring that survivors receive justice.

Comparative International Perspectives

The judgment brings South Africa closer to international legal standards. Several progressive democracies have already adopted stricter consent laws:

• Canada: the Criminal Code stipulates that an accused cannot use the defence of believing the complainant consented if they did not take reasonable steps to ascertain consent.
• England and Wales: The Sexual Offences Act 2003 abolished the Morgan defence of a genuine though unreasonably mistaken belief as to the consent of the complainant. The accused must ensure that the other party consents to the sexual activity in question.

Conclusion

The ruling in Embrace Project NPC is a landmark victory for survivors of sexual violence in South Africa. By declaring unconstitutional the defence of unreasonable belief in consent, the court has strengthened protections for victims and reinforced the principle of affirmative consent.

However, challenges remain. Parliament must swiftly amend the law to reflect this ruling, and legal practitioners, law enforcement, and the judiciary must be trained on the new standard of consent. This decision is a step forward in eradicating gender-based violence and ensuring justice for all survivors of sexual offences.