Understanding the definition of Rape and Consent in the context of South African Law

Abstract

This article examines the understanding of rape and consent in the South African Law. In South Africa, rape is one of the most serious crimes in which a person uses sexual acts to intentionally hurt another person without their consent. The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 was abolished in South Africa, which states that it is a crime to intentionally and unlawfully commit a sexual act with another person without their consent (The Criminal Law (Sexual Offences and Related Matters) Amendment Act 2007). 

Introduction

Rape is one of the most complex offences in the history of the law. In South Africa, rape is considered a serious crime because it violates a person’s dignity, which is protected under Section 10 of the Constitution. Many South African citizens still do not understand what the law means by rape, especially since definitions have been changed to protect both men and women (Legal Experts, What Is Considered Rape in South Africa, 2025). Before the Amendment Act, rape was committed in respect of females. In other words, women were the victims of rape, but after the Act was enacted, our law stated that anyone can be a victim of rape regardless of their gender. A person is guilty of rape if he or she sexually penetrates another person without their consent. Henceforth, people must understand what consent entails. This article will discuss what rape and consent mean in terms of South African Criminal Law.

1. What is Rape?

In the past, rape was a common law crime. It was defined as an unlawful and intentional act of having sexual intercourse with a female without her consent, committed by a male (SV Hoctor, Snyman’s Criminal Law, 318, 7th ed. 2020). In this context, rape was considered only when a male inserted his penis into the female’s vagina. In the case of Masiya v The Director of Public Prosecution, the Constitutional Court extended the common law definition of rape by including within its ambit also penetration by a male's penis into the woman's anus (Masiya v The Director of Public Prosecution, 2006). 

Section 3 of the Sexual Offences Act defines rape as any person who unlawfully and intentionally commits an act of sexual penetration with a complainant without the consent of the complainant is guilty of rape (The Criminal Law (Sexual Offences and Related Matters) Amendment Act 2007). Rape involves sexual penetration. Sexual penetration involves penetration of the genital organs, a person’s anus, or mouth. It also includes penetration by genital organs, a part of the body of one person, objects, and the genital organs of animals (SV Hoctor, Snyman’s Criminal Law, 319, 7th ed. 2020). Rape is not limited to male-on-female acts; it covers all forms of non-consensual sexual penetration, regardless of gender or relationship (Legal Experts, What Is Considered Rape in South Africa, 2025). 

2. Consent

Sexual intercourse is not an offence; it becomes an offence if it is not accompanied by consent between the participants (University of KwaZulu-Natal School of Law, A critical analysis of the offence of rape in the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007: Identifying challenges and providing solutions, 2021). In other words, if there is no consent between the participants, or one has forced himself or herself to have sexual intercourse with the other person without their consent, that person has committed rape.

Consent is a voluntary agreement between two people to have sexual intercourse. Consent must be voluntary by a person who has the mental capacity to understand what they are consenting to. Consent can be withdrawn before and during sexual activities. However, there are certain ways in which consent is invalid. Consent is invalid due to force, fraud, abuse of power, when someone is intoxicated, or when the person is unable to appreciate the nature of the act, such as when the person is asleep or mentally ill.

Conclusion

In essence, everyone must refrain from committing rape because rape is a serious crime, and one can get arrested and be sentenced to life imprisonment. The law stipulates that consent must be given freely and without coercion or force. 

Bibliography

Books

SV Hoctor, Snyman’s Criminal Law, 7th ed. 2020.

 Cases

Masiya v The Director of Public Prosecution, 2006.

Journals

Legal Experts, What Is Considered Rape in South Africa, 2025.

University of KwaZulu-Natal School of Law, A critical analysis of the offence of rape in the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007: Identifying challenges and providing solutions, 2021.

Legislation 

The Criminal Law (Sexual Offences and Related Matters) Amendment Act 2007.  

This article is authored by Elsie Mbalane, who was among the Top 40 performers in the Quiz Competition on International Human Rights organized by Lets Learn Law.