A Closer Look at Sexual Consent in South Africa

Ntsiki (23) and Thabo (26) have been seeing each other regularly for a few months. They have a lot in common, enjoy each other’s company, but haven’t been intimate just yet.  One night, after getting back from a dinner with friends, the couple start kissing and getting sensual. After a few minutes of making out, they start removing their clothes. But as Thabo reaches to remove Ntsiki’s underwear, she mutters that she is uncomfortable.

“We’ve come this far, babe. Did you not enjoy the kissing?” asks Thabo.

“I did…very much,” replies Ntsiki.

“So, what’s the problem? I promise we will have a good time.”

After a few seconds of uncomfortable silence, Ntsiki quietly states, “ I don’t think I want to carry on. I’m not ready.”

“Of course, babe. Can I make you a cup of tea or something?”

In this case, Ntsiki is one of the lucky few who has a partner who understands the nuances of what it means to consent to engaging in a sexual act and respecting boundaries.  Ntsiki may not have explicitly said the word “no”; but she said “no” in different ways. To unpack this further, LAW FOR ALL takes a closer look at sexual consent in South Africa.

Trending topic: how the #MeToo movement reignited a much-needed debate

Thankfully, if Ntsiki wanted to tell her story, she wouldn’t have had to use #MeToo.  That hashtag, as many may already know, went viral in October 2017. It gained global traction and attention after thousands and thousands of brave women (and some men) posted their stories on social media of being sexually abused or assaulted. It was dubbed the “Me Too Movement”.

In addition to revealing just how prevalent sexual assault is and how it hasn’t been properly dealt with, the trending topic also shed light on consent, and how it isn’t always just a matter of “yes” or “no” when it comes to accepting or rejecting sexual advances. It’s a nuanced issue that needs to be looked at from many angles, and not just once.

As an article on Planned Parenthood points out: “ Consent is never implied by things like your past behaviour, what you wear, or where you go. Sexual consent is always clearly communicated — there should be no question or mystery. Silence is not consent. And it’s not just important the first time you’re with someone. Couples who’ve had sex before or even ones who’ve been together for a long time also need to consent before sex — every time.”

Another layer: a closer look at sexual consent in South Africa

While sexual consent is important in any context, it must also be dealt with and addressed within the framework of a specific country. Long before the #MeToo movement, there was the #EndRapeCulture campaign that was started in South Africa in 2016.

The movement sought to address the high rates of rape and gender-based violence in the country. Sadly, the rate of gender-based violence in South Africa is one of the highest in the world. According to the Crime against Women in South Africa 2018 report, there has been a 53% increase in sexual offences against women in a short period – from 31 665 in 2015/16 to 70 813 in 2016/17.

Exposing what rape culture is and how it contributes to sexual violence has been an eye-opener for many. “It is the acceptance of rape as “inevitable” in a society that says “don’t get raped” as opposed to “do not rape.” A society that teaches rape prevention instead of consent. Rape culture ranges from things that seem “normal” to those that are more blatantly and explicitly violent,” writes Jesse Jade Turner for Parent24.

Ultimately, teaching children about sexual consent and integrating lessons about rape culture in school curricula could have an enormous impact on reducing sexual offences against women in South Africa. “Discussions and conversations about consent need to start at an early age,” maintains Adv. Jackie Nagtegaal, LAW FOR ALL’s Managing Director. “It’s all about starting to change perceptions of entitlement and engraining notions of respecting boundaries in young minds, all of which will have a larger effect on changing the culture that younger generations are raised in”.

For instance, UCT’s Gender Health and Justice Research Unit created a guide to sexual consent in South Africa, and includes examples of and myths surrounding sexual consent.

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What does the law say about the legal age of consent in South Africa?

According to the Criminal Law (Sexual Offences and Related Matters) Amendment Act (2007), the age of consent for both boys and girls is 16 years of age.  Of course, there are some exceptions; for example, if both partners are between the ages of 12 and 16 they won’t be criminally charged; and it is not criminal for a child under the age of 16 to have sex with a partner who is less that years older than they are.  Furthermore, South African law states that no child under the age of 12 has the capacity to consent to sex, and therefore any sexual act with a pre-teen is rape and/or sexual assault.

An important takeaway here, though, is that even if someone is of age to have sex, it doesn’t mean they automatically consent to having sex. They can still say or imply “no”.

What the South African Government and Law are doing about addressing sexual consent and violence in South Africa:

In 2019, President Cyril Ramaphosa officially launched the Gender-Based Violence and Femicide (GBVF) Declaration, which calls for the Government, society and other key players to “find solutions to the scourge of gender-based violence and femicide”. Amongst other things, the declaration “promises adequate resourcing of Thuthuzela Care Centres, sexual offences courts and shelters that respond to the needs of all people including people with disabilities and LGBTQIA+”.

Additionally, the declaration also coincided with the launch of the Booysens Magistrates’ Court in Oakdene South of Johannesburg.  The Court is fully equipped to help and support survivors of sexual assault, gender-based violence and femicide, and it offers the following services:

  • A fully-fledged Sexual Offences Court
  • Family Law services such as maintenance, domestic violence, harassment and children’s court matters
  • Small claims court services
  • Civil and Criminal Court services – Regional and District

Taking an individual and collective stance to advance the discussion of sexual consent in South Africa

It clear that we as South Africans need to educate ourselves, our children and our loved ones on what sexual consent really is, and it is a broad-brush-stroke issue.  These discussions will hopefully lay the foundations for change: a change in understanding, perception and culture. So many lives depend on this.

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Inappropriate and criminal behaviour is also, unfortunately, prevalent in offices around the country. LAW FOR ALL takes a closer look at how to deal with sexual harassment in the workplace.

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