Actual cases
Don’t let fear or self-doubt silence you!
Speak out about consent and reporting sexual assault
Zamile* meets up at a restaurant with her date and goes to his apartment afterwards where things get physical involving kissing and touching. However, Zamile feels uncomfortable about taking things further and she tells him that “I am not ready for that”. In spite of this, he continues and Zamile freezes up. Later, confused and dazed, she talks herself out of going to the police station to report this assault as she fears that they will not believe her due to her freezing up in the moment and not actively trying to run away, screaming or pushing him off her.
Many women in South Africa have found themselves in similar situations where they do not consent to all sexual acts and think that consenting to one specific sexual act includes consent for everything. Women in these circumstances question whether they were really sexually assaulted, blame themselves for what happened, and as a result, do not report the sexual assault as they fear the trauma of recounting the assault.
This article will provide clarity on what is meant by consent, as well as provide guidance on the rights one has when reporting sexual offences.
What does consent entail in the context of sexual acts?
According to South African law, the Criminal Law (Sexual Offences and Related Matters) Amendment Act provides that consent must be clear, conscious and voluntary for each specific sexual act. It can be withdrawn at any time and even in the middle of an act. This means that if someone agrees to kissing and touching, it does not mean that they have agreed to any other sexual act.
This meaning of consent was re-affirmed by the Supreme Court of Appeal (“SCA”) in the case of Director of Public Prosecutions, Eastern Cape, Makhanda v Coko (Women's Legal Centre Trust, Initiative for Strategic Litigation in Africa and Commission for Gender Equality intervening as Amici Curiae) (2024) ZASCA 59.
The SCA emphasised that consent is not automatic just because a complainant does not physically fight back or scream. The SCA further held that the lack of resistance does not equal consent, which means that:
> Yes, means Yes
> Anything else, including silence, fear, or hesitation, means NO!
> Consent to one form of sexual activity like foreplay, does not imply consent to another activity such as penetrative sex.
> Consent can be withdrawn at any time.
What is the process of reporting sexual offences?
When a complainant goes to a police station to report a sexual offence, police officials have a duty to provide victim-friendly service as part of the South African Police Services' Victim Empowerment Service, such as:
“… a service where the dignity and rights of victims are protected, and the victim is empowered and not subjected to secondary victimisation by the inefficiency of the members of the criminal justice system. The four basic elements of victim empowerment are -
> Emotional support
> Practical support
> Providing information
> Referral to professional support services.”
This means that when a complainant reports a sexual offence, the police official must take down the statement and allow the complainant to tell their story in a private and safe environment. A friend or family member can accompany the complainant and be in the room when they are making their statement, provided that person is not a potential witness to the case.
Due to the sensitive nature of sexual offences, the complainant can request to be assisted by a female police official. If no official is immediately available, attempts must be made to provide the request in an alternative manner. For example, the complainant may request to wait until such time that one is available or if it is time sensitive, be referred to another police station where female police officials are available.
Once the sexual offence has been reported, a case file will be opened and registration of the case docket will take place immediately or as soon as possible. The police official will provide the complainant with the case number/CAS reference number, which must be used at all times when following up on the case.
The case will then be referred to an investigating officer, whose duties include the following:
> conclude the full investigation of a case as soon as possible;
> explain applicable procedures to the complainant;
> consider the safety of victims and other witnesses during the investigation.
> keep the victim informed of progress made with the investigation; and
> prepare the victim for the court process.
It is vital to note that in sexual offences, complainants may be required to be examined by an accredited health care worker who will complete a medical report and collect medical evidence. The police officials must refer the victims of sexual offences to Crisis Centres, Community Services Centres and/or other organisations for treatment, counselling and/or support services.
Conclusion
What happened to Zamile* could happen to any woman, which is why reporting sexual offences is vital as it brings more awareness to what is happening in our communities and may also inspire other women in similar situations to speak out and report these offences. You have the legal and human right to speak out, to be heard, and to be treated with dignity and respect. No complainant should ever be blamed, dismissed or made to feel ashamed when reporting a sexual offence.
*Names are for illustrative purposes only.
Did you know…Complainants have the right to request to be assisted by police officials who are of the same gender when reporting sexual offences.