Aspects of consent in sexual offences: an analysis of emerging case law and calls for legislative reform in South Africa

Abstract

The interpretation and definition of consent have been at the centre of challenges when it comes to the prosecution of sexual offences. However, due to conflicting views there seems to be no consensus regarding the type of legislative reform required. The various links between mens rea, intention, implicit and express consent, subjective and objective belief of consent has led to calls that absence of consent as a key aspect of sexual offences should be removed entirely, with some arguing that only certain aspects of consent should be removed. This research paper will explore the discourse around the concept of consent in sexual offences trials in South Africa. Case law will be used to highlight issues of interpretation and the subjective beliefs of presiding officers that has led to confusing case law precedents. Lastly, this research paper will explore legal reform arguments that have been made through case law. Additionally, before I make my own recommendations, I will explore recommendations made through available literature with regards to closing the gap in common law and legislation when it comes to consent and sexual offences.