Pretoria High Court Rules in Favor of Sexual Violence Victims

Pretoria High Court Declares Sections of the Sexual Offences Act Unconstitutional

South Africa has long been haunted by the scourge of gender-based violence (GBV) and sexual assault, a crisis that has left many women and survivors trapped in cycles of trauma, shame, and injustice. But a recent decision by the Pretoria High Court has the potential to turn the tide in the country’s fight against these violent acts. For decades, rapists have exploited a grotesque loophole—claiming they "believed" the victim consented, no matter how unreasonable or absurd their belief was. This defense, built on the notion of "subjective consent," has finally been struck down. And with it, South Africa begins to close the door on a dark chapter of systemic injustice, where survivors were too often betrayed not just by their abusers, but by the very laws meant to protect them.

This decision marks a monumental shift in our legal landscape. No longer can rapists hide behind the flimsy shield of their own "beliefs." No longer can they twist the narrative to their favor, distorting the truth of their victim’s terror, paralysis, and silent suffering. This ruling speaks loudly: consent is not something that can be assumed, misinterpreted, or manipulated. It must be clear, affirmative, and mutual.

In one of the most chilling cases, a young woman was raped by a man she met online. Expecting a party, she arrived at his home to find she was the only guest. What followed was an act of violence and betrayal, but when the case went to court, the man was acquitted. Why? Because he argued that while she hadn’t expressly consented, she hadn’t fought him off either. Her silence, her immobilization, her trauma-stricken passivity—these were all twisted into his defense. This is the grotesque reality of "subjective consent."

This loophole is not just a legal technicality; it is an assault on logic, reason, and human dignity. What does it say about a society that allows a rapist to argue, in essence, that his victim’s silence meant yes? The very idea that someone can claim ignorance of a lack of consent, without taking the necessary steps to ensure it, is as dangerous as it is absurd. And this is precisely why the court’s ruling is so critical—it reclaims the narrative from those who would manipulate it for their own gain.

But to fully grasp the significance of this ruling, we must look beyond the law and into the human psyche. When we talk about consent, we are not merely talking about words. We are talking about power, manipulation, fear, and trauma. The human brain, in moments of extreme terror or shock, can respond in ways that defy expectation. We’ve long known that the "fight or flight" response isn’t the only one. There is a third, often misunderstood reaction: freeze.

For countless survivors of sexual violence, freezing—becoming immobilized, mute, passive—is not a choice. It is an automatic response, an evolutionary defense mechanism triggered by overwhelming fear. When the body and mind are overtaken by this kind of paralysis, the ability to verbally or physically resist becomes impossible. This is why the argument of "she didn’t say no" is not just legally flawed; it is psychologically ignorant. Silence is not consent. Paralysis is not permission. These are the realities that survivors live with, realities that this ruling finally acknowledges.

This court ruling is more than just a legal victory—it is a profound moral correction. It sends a message that our laws will no longer tolerate manipulation masquerading as defense. It recognizes that perpetrators of sexual violence have an obligation, not to assume, but to actively ensure that consent is present. This is a radical departure from the past, where men could weaponize ambiguity and silence to justify their actions.

Let’s not fool ourselves into thinking this ruling alone will solve South Africa’s GBV crisis. But it is an essential step in the right direction. It aligns our legal system with the principles of justice, respect, and human dignity. It closes a loophole that has shielded predators and thrown survivors into the shadows of doubt and humiliation.

What’s more, this ruling also places South Africa on par with international standards for sexual offense laws. Countries like England, Wales, and Canada have long required perpetrators to prove they took reasonable steps to confirm consent. No longer will South Africa lag behind, treating the word "yes" as optional or implied. Consent, from this day forward, will be something that must be earned, clearly communicated, and respected.

The underpinnings of this ruling cannot be ignored either. At its core, it is a rejection of the notion that one person’s interpretation of reality can override another’s autonomy and agency. Subjective consent, by its very nature, is a violation of the victim’s humanity. It prioritizes the perpetrator’s perspective, allowing them to define what happened based on their own biased, self-serving narrative. This ruling restores balance, ensuring that a victim’s silence or passivity will no longer be distorted into a "yes."

South Africa has long struggled with the weight of its GBV crisis, with women living in fear, knowing that the legal system often fails them. But this ruling offers hope. It signals that we are moving toward a future where survivors will not be blamed for their trauma, where justice is not contingent upon whether a victim fought hard enough, screamed loudly enough, or resisted forcefully enough.

For too long, the law has been complicit in the violation of women’s bodies and dignity. But today, with this ruling, we can begin to dismantle the structures that perpetuate that violation. Today, we can say that South Africa is stepping out of the shadows and into a future where the law stands firmly on the side of justice, accountability, and the undeniable truth that no means no—and silence, too, is no.