Consent is not the same as submission. Consent requires submission, but submission does not require consent. So when someone submits to something, it doesn’t mean they consent to it. This is important because our rape legislation is the only legislation in the country which specifies that the burden of proof rests on the survivor of the crime. In all other cases, the responsibility to prove innocent rests on the alleged perpetrator. In cases of rape, it is the duty of the survivor to prove that she or he did not consent.
This burden is a heavy one, and is worsened by our problematic rape legislation. In fact, as Zapiro’s many comics show, the criminal justice system — including the courts– subjects the survivor to further trauma and victimisation. Yes, The Criminal Law (sexual offences and related matters) Act 32 of 2007 is a landmark piece of legislation in our history, and when compared with other countries in southern Africa. But when you’re best of a bad bunch, it’s not much to celebrate.
So in the interest of avoiding the label “whinge bag” what was the other option? Well, many civil society organisations pushed for the inclusion of coercive circumstances, rather than lack of consent as the thing that would mark out an act of sexual violence. Countries like Namibia have included coercive circumstances in their legislation, and in the Namibian example, these can be summarised as:
a) the application of physical force on the complainant or a person other than the complainant
b) threats of force (verbal/conduct) as described in a)
c) plausible threats of harm to the complainant
d) circumstances where the complainant is under 14 and the perpetrator is more than 3 years older than the complainant
e) circumstances where the complainant is unlawfully detained
f) circumstances where the complainant affected by
i) mental or physical disability
ii) drugs or alcohol
The South African decision-makers in Parliament decided to exclude the recommendations for these inclusions because they were deemed “too vague”. In doing so they condemned survivors of sexual violence to proving that they had not consented. Surely consent is a far more blurry term?
Does consent mean saying yes or no? Does consent mean indicating with your actions yes or no? Does consent mean signing a paper to say yes or no? There are far more grey areas when you use a broad term like consent than when you specify conditions. Perhaps this is what they had hoped would protect the survivor, but instead it merely placed them in the difficult position of justifying their actions, trying to prove their innocence rather than that responsibility being placed on the perpetrator.
It is a failure of justice.