Rape: An unreasonable belief in consent should not be a defence

Author PJ Schwikkard

ISSN: 1996-2118
Affiliations: BA (Witwatersrand) LLB (Natal, Pietermaritzburg) LLM (Natal, Durban) LLD (Stellenbosch), Professor of Law, University of Cape Town
Source: South African Journal of Criminal Justice, Volume 34 Issue 1, p. 76 – 102


Section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 defines rape in the following terms: ‘Any person (‘A’) who unlawfully and intentionally, commits an act of sexual penetration with a complainant (‘B’), without the consent of B, is guilty of the offence of rape.’ This paper focuses on one component of the definition, namely fault. It is argued that a mistaken but unreasonable belief in consent should not be recognised as a defence and that a normative approach could soften the focus on the behaviour of the complainant and send a clear signal that our commitment to constitutional values requires us to take due care in our interactions with others. The argument is made with full awareness that law reform is a very small cog in addressing the scourge of rape.