From consent to coercive circumstances: Rape law reform on trial
Authors Louise du Toit
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
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.