The Evolving Law of Consent in South African Sexual Offence Cases
Sexual offences remain among the most serious criminal offences prosecuted in South Africa. The legal framework governing such offences is principally contained in the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (“the Act”), which came into operation on 16 December 2007.
The Act represented a significant development in South African criminal law. Among other things, it replaced the former common-law definitions of rape and indecent assault with comprehensive statutory offences and established a broader, gender-neutral framework for the prosecution of sexual offences.
Despite these developments, questions concerning the meaning and legal significance of consent have continued to occupy the courts. The judgment in Embrace Project NPC and Others v Minister of Justice and Correctional Services and Others (04856/22) [2024] ZAGPPHC 961 (“Embrace Project”) is particularly significant in this regard. The judgment has generated important constitutional questions concerning the extent to which an accused person may rely on a subjective belief that a complainant consented to sexual conduct.
THE DEVELOPMENT OF THE OFFENCE OF RAPE
Historically, the common-law definition of rape was narrowly formulated. It was defined as the unlawful and intentional sexual intercourse by a man with a woman without her consent. That definition was fundamentally inconsistent with the constitutional values of equality, dignity and bodily integrity and was incapable of accommodating the full range of circumstances in which sexual violence may occur.
In 2007, the Constitutional Court considered the development of the common-law offence of rape in Masiya v Director of Public Prosecutions, Pretoria (The State) and Another (CCT54/06) [2007] ZACC 9.
The Court developed the common-law definition of rape to include the non-consensual penetration of the anus by the penis of a male person. The judgment represented an important constitutional development in South African criminal law and recognized that the traditional common-law conception of rape was no longer compatible with the constitutional order.
The subsequent enactment of the Act constituted a further and more comprehensive development of the law.
Section 3 of the Act provides:
“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.”
The statutory definition is deliberately gender-neutral and focuses on the absence of consent rather than on the gender or marital status of the persons involved.
CONSENT AS AN ELEMENT OF SEXUAL OFFENCES
The question of consent is central to a number of offences created by the Act. Section 1(2) provides that, for purposes of the relevant offences, “consent” means voluntary or uncoerced agreement.
The question that has subsequently arisen is not merely whether a complainant in fact consented to sexual conduct, but also how the law should approach an accused person's assertion that he or she believed that the complainant had consented. This distinction is NB.
In criminal law, an accused person may raise a defense based on a genuine mistake regarding a material element of an offence where that mistake negates the requisite intention. In the context of sexual offences, this has historically meant that an accused person could seek an acquittal by raising a subjective belief that the complainant had consented, provided that the State could not disprove that version beyond reasonable doubt.
The difficulty identified in Embrace Project was that the existing statutory framework did not expressly require the accused's belief in consent to have been objectively reasonable.
Consequently, the constitutional challenge concerned circumstances in which an accused person may have genuinely but unreasonably believed that a complainant had consented to the relevant sexual conduct.
THE EMBRACE PROJECT JUDGMENT
In Embrace Project, the applicants challenged the constitutional validity of sections 3, 4, 5, 6, 7, 8, 9 and 11A of the Act, read with section 1(2).
The challenge arose from concerns that the Act did not adequately address circumstances in which an accused person relied upon a subjective belief in consent, even where that belief was objectively unreasonable.
The applicants contended that this legal position infringed various constitutional rights, including the rights to equality, dignity, privacy, bodily and psychological integrity and freedom and security of the person.
The Pretoria High Court, per Baqwa J, accepted the constitutional challenge in substantial part.
The Court held that sections 3, 4, 5, 6, 7, 8 and 9, read with section 1(2) of the Act, were unconstitutional and invalid to the extent that they failed to criminalize sexual violence where the perpetrator wrongly and unreasonably believed that the complainant was consenting to the conduct in question, alternatively, to the extent that the provisions permitted a defense where there was no reasonable objective belief in consent.
The Court's reasoning was founded, among other things, upon the constitutional rights of victims and survivors of sexual violence and the State's obligation to take appropriate measures to protect persons against violence.
The judgment recognized the tension between two important constitutional considerations: on the one hand, the State's obligation to protect persons from sexual violence and to vindicate the rights of victims and survivors; and, on the other, the constitutional rights of an accused person to a fair trial and to the presumption of innocence.
The Court therefore did not simply remove consent from the statutory framework. Instead, it adopted an interim remedy directed at the manner in which an accused person's belief in consent may be relied upon.
THE INTERIM READING-IN
The declaration of invalidity was suspended for a period of 18 months to afford Parliament an opportunity to remedy the identified constitutional defect.
During that period, the Court directed that the following provision be read into the Act:“56(1A) Whenever an accused person is charged with an offence under section 3, 4, 5, 6, 7, 8, 9 or 11A, it is not a valid defense for that accused person to rely on a subjective belief that the complainant was consenting to the conduct in question, unless the accused took objectively reasonable steps to ascertain that the complainant consented to the sexual conduct in question.”
The effect of the interim order was significant. It shifted the focus away from an entirely subjective enquiry and introduced the requirement that an accused person must have taken objectively reasonable steps to ascertain whether the complainant consented.
The Court further directed that its declaration of invalidity and the reading-in operate prospectively and have no effect on conduct occurring before the date of the order. This is consistent with the fundamental principle against retrospective criminalization.
THE CONSTITUTIONAL COURT PROCEEDINGS
The significance of Embrace Project extends beyond the Pretoria High Court judgment. Following the High Court's order, the matter proceeded to the Constitutional Court under CCT 314/24, with the Centre for Applied Legal Studies' appeal being considered under CCT 315/24.
The Constitutional Court heard the consolidated matter on 25 September 2025. Judgment was reserved.
The Constitutional Court proceedings are important because a declaration of constitutional invalidity made by a High Court is subject to confirmation by the Constitutional Court in terms of section 172(2) of the Constitution.
Accordingly, the High Court judgment cannot be treated in isolation from the subsequent Constitutional Court proceedings when considering the legal position in 2026.
As of August 2026, the Constitutional Court's published case information does not reflect a final judgment in the Embrace Project proceedings. The matter therefore remains an important and developing area of South African sexual-offence jurisprudence.
WHAT DOES THIS MEAN FOR ACCUSED PERSONS AND COMPLAINANTS?
The Embrace Project litigation illustrates the increasingly important role played by constitutional principles in the interpretation and development of South African sexual-offence law.
For complainants and survivors, the litigation highlights the constitutional importance of sexual autonomy, dignity, bodily integrity and the right to be free from violence.
For accused persons, however, the constitutional right to a fair trial remains fundamental. The prosecution retains the obligation to prove every element of the offence beyond reasonable doubt and the accused remains entitled to the protections afforded by section 35 of the Constitution.
The determination of consent must therefore be approached carefully and in accordance with the applicable statutory and constitutional framework.
Importantly, consent is specific to the sexual conduct in question. Consent to one form of sexual activity does not necessarily constitute consent to another form of sexual activity. Equally, consent may be withdrawn. The circumstances in which consent was allegedly given, the nature of the conduct, the surrounding circumstances and the accused person's state of mind may all become relevant to the determination of criminal liability.
THE IMPORTANCE OF EMBRACE PROJECT IN 2026
The Embrace Project litigation represents an important moment in the continuing development of South African sexual-offence law.
The judgment demonstrates how constitutional scrutiny may expose tensions between established principles of criminal liability and the State's constitutional obligation to protect persons from sexual violence.
At the same time, the litigation demonstrates that significant changes to the criminal law must be approached with caution. Any alteration to the requirements for criminal liability necessarily engages the constitutional rights of accused persons and must be carefully considered within the framework of legality, the presumption of innocence and the right to a fair trial.
The final position will ultimately depend upon the Constitutional Court's determination of the consolidated proceedings and any subsequent legislative response.
Until that process has been concluded, Embrace Project should be understood as a significant but developing chapter in the law of sexual consent in South Africa.
CONCLUSION
South African sexual-offence law has undergone substantial development since the traditional common-law definition of rape. The enactment of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 represented a fundamental reform of the law, while Masiya marked an important constitutional development in the recognition and protection of bodily integrity and sexual autonomy.
The Embrace Project judgment has taken the debate a step further by placing the question of an accused person's belief in consent under direct constitutional scrutiny.
The central issue is ultimately one of balance: the law must provide meaningful protection to victims and survivors of sexual violence while simultaneously preserving the constitutional rights of persons accused of sexual offences.
The ongoing Constitutional Court proceedings will be critical in determining the future legal framework governing consent and criminal liability in sexual-offence cases in South Africa.
By Christiaan Small (Associate) and John Macdonald (Candidate Attorney)
20 August 2026
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