Legal scholar calls for overhaul of South Africa’s rape consent laws

– Recent Master of Laws graduate from Nelson Mandela University, Moi-Sui Ah Goo, is challenging one of the entrenched assumptions in South Africa’s criminal justice system: what constitutes consent in rape cases.

As South Africa continues efforts to combat gender-based violence, a young legal scholar from Nelson Mandela University is contributing to the debate on consent and rape law reform.

Recent Master of Laws graduate Moi-Sui Ah Goo has completed research examining one of the most contested aspects of South Africa’s rape legislation. Her dissertation proposes replacing the defence of subjective consent with an affirmative consent model.

Titled Abolition of the Defence of Subjective Consent: Towards an Affirmative Consent Model for Rape, the study is among the first Master’s-level research projects in South Africa to comprehensively explore the affirmative consent model within the country’s rape laws.

Ah Goo argues that consent should never be assumed and should instead be clearly communicated throughout a sexual interaction.

Under the affirmative consent model, consent cannot be inferred from silence, passivity, previous sexual history or a lack of physical resistance. Rather, it must be actively sought and maintained through words or conduct that clearly indicate agreement.

She said the model would shift accountability away from complainants and place greater responsibility on individuals seeking consent.

Ah Goo noted that rape prosecutions have historically focused heavily on the conduct and credibility of complainants, with courts often examining factors such as clothing, physical resistance and behaviour before and after an incident. She said this has contributed to what many advocates describe as secondary victimisation.

While acknowledging reforms introduced through the Criminal Law (Sexual Offences and Related Matters) Amendment Act of 2007, Ah Goo believes challenges remain.

According to her research, the continued recognition of a subjective belief in consent creates uncertainty in rape prosecutions, as prosecutors are often required to disprove an accused person’s state of mind beyond reasonable doubt.

She argues that this can make convictions more difficult to secure and may discourage survivors from reporting sexual violence.

The research comes amid growing legal scrutiny of consent laws following the Embrace Project case, which is awaiting a final ruling from the Constitutional Court. The case has raised questions about whether an accused person should be permitted to rely on a belief that consent existed without taking reasonable steps to establish it.

Ah Goo’s dissertation recommends that any future reforms include clear criteria to guide courts, prosecutors and legal practitioners.

The young legal professional is due to be admitted as an advocate on July 24. She has worked on several high-profile criminal matters, including the successful prosecution of the Ayuk brothers human trafficking case and the ongoing Nafiz Modack trial.

Now specialising in criminal and immigration law while pursuing a PhD in Public Law, Ah Goo hopes her research will contribute to strengthening protections for survivors and advancing a more effective and equitable justice system.