The letter raised a constitutional issue with the statutory definition of rape contained in section 3 of the act and the meaning of consent in section 1 of the act.
The NPO asked that the bill be sent back to the National Assembly, in terms of section 79 of the constitution, to address sections 1 and 3 of the act, which they said infringe on rape survivors’ constitutional rights to bodily and psychological integrity, human dignity and equality. “It was pointed out that the statutory requirement that a perpetrator must have subjectively intended to rape a victim, in cases where it had been proven there was sexual penetration without consent, was unconstitutional and created an almost insurmountable barrier to the conviction of guilty accused persons.
“The Embrace Project also pointed out that the issue with the vague definition of consent in the act was most recently highlighted by the public and legal criticism attracted by the appeal judgment in the case of Coko v S.”convicted of raping his girlfriend and sentenced to seven years in prison by the Grahamstown magistrate’s court, on the basis that he genuinely believed his alleged victim had consented to sex.
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