From consent to coercive circumstances: Rape law reform on trial

by | Oct 19, 2019 | SAJHR, SAJHR V28 I3

From consent to coercive circumstances: Rape law reform on trial

Authors Louise du Toit

ISSN: 1996-2126
Affiliations: Senior Lecturer in the Department of Philosophy, University of Stellenbosch
Source: South African Journal on Human Rights, Volume 28 Issue 3, 2012, p. 380 – 404

Abstract

When South Africa’s rape law of 1957 was amended in 2007, consent was retained as a key element in the definition of the crime of rape, in contrast with the Law Reform Commission’s recommendation that the criterion of consent be replaced with the notion of coercive circumstances that would determine whether an act of sexual penetration should be deemed prima facie unlawful. The most salient aspect of the reformed law is its ostensible gender neutrality. However, this apparent neutrality is belied by, firstly, the preamble’s mention of ‘vulnerable persons’, explicitly understood as women and children, whose protection against sexual violence forms a main focus of the reformed rape law, and secondly, by the law’s retention of the notion of consent whose meanings are deeply embedded in modernity’s contradictory view of women’s sexual autonomy. Instead of the current (consent) approach in rape law which assumes even as it undermines the sexual autonomy of persons classified as feminine, an approach should rather be adopted which focuses on the material and symbolic conditions of meaningful consent. By asking about the possibilities for dissent from and refusal of sexual advances, and by focusing on a range of coercive circumstances which would undermine such possibilities, rape law has a better chance of protecting those most vulnerable to sexual violence, because it would help to equally protect everybody’s conditions for sexual autonomy rather than assume such autonomy to be always already in place.

Procedural relief, constitutional citizenship and socio-economic rights as legitimate expectations

by | Oct 19, 2019 | SAJHR, SAJHR V28 I3

Procedural relief, constitutional citizenship and socio-economic rights as legitimate expectations

Authors Marius Pieterse

ISSN: 1996-2126
Affiliations: Professor of Law, University of the Witwatersrand
Source: South African Journal on Human Rights, Volume 28 Issue 3, 2012, p. 359 – 379

Abstract

It is often argued that the Constitutional Court adopts an ‘administrative law approach’ in deciding socio-economic rights matters. Following from this, this article considers the methodology inherent to the so-called ‘second wave’ of the Court’s socio-economic rights jurisprudence. It argues that several features of this methodology correspond to the logic and method inherent to the doctrine of legitimate expectation in South African administrative law. While welcoming the extent to which this method of adjudication appears to have deepened participative democracy and enhanced accountability in the formulation and implementation of socio-economic policy, the article also points to the limits inherent to the Court’s approach. First, as with the conventional application of the doctrine which it appears to reflect, the Court’s method appears capable of yielding only procedural relief. Secondly (and more worryingly), in reflecting the liberal foundations of the legal culture from which it was adapted, the method appears to hinge on a neo-liberal concept of market-citizenship, which foregrounds entrepreneurial conduct and individual payment for public services in deciding whether a particular socio-economic rights claim is worthy of vindication. The article therefore argues, first, for the modification of the Court’s approach so that it may be capable, in appropriate circumstances, of yielding more tangible relief and, secondly, for the realignment of the notion of citizenship informing the approach with the concept of social citizenship evident from a purposive reading of the Bill of Rights.

Case Note: Defences under the protection of State Information Bill: Justifications and the demands of certainty

by | Oct 19, 2019 | SAJHR, SAJHR V28 I2

Case Note: Defences under the protection of State Information Bill: Justifications and the demands of certainty

Authors James Grant

ISSN: 1996-2126
Affiliations: Advocate of the High Court of South Africa and Senior Lecturer, School of Law, University of the Witwatersrand
Source: South African Journal on Human Rights, Volume 28 Issue 2, 2012, p. 328 – 350

Abstract

None