Rape and Consent
This article was originally written for the Times of Swaziland, 2 May 2019
By Mkwakha Indvodza
Welcome to our weekly column on the Sexual Offences and Domestic Violence Act (2018). Each week we are going to unpack a clause of this new law, exploring what the law actually states and how it will affect our lives. After all, knowledge is power!
Rape and sexual assault are violent crimes affecting many emaSwati. Reports of rape frequent our police stations, human rights organisations and newspapers proving that this is a concern in our country which we cannot, and should not, ignore. Most of us would be able to give a fairly strong definition of rape off the top of our heads but it may be more complicated than the images of a violent crime perpetrated by a stranger that most of us would immediately think of.
Rape is broadly defined as a type of sexual assault usually involving sexual intercourse or other forms of sexual penetration carried out against a person without that person’s consent. According to (WHO, 2002) rape may occur by physical force, coercion, abuse of authority, or against a person who is incapable of giving valid consent, such as one who is unconscious, incapacitated, has an intellectual disability or is below the legal age of consent.
The SODV Act of 2018 defines rape as ‘unlawful insertion, even to the slightest degree, of the genital organs of a person or any other part of the body of a person – for purposes of sexual gratification of the person performing the insertion – into the genital organs, an*s or other orifice of another person’.
Importantly, Clause 3 of the Act states; “For the purposes of this Act rape is committed either by a male or female person against another person.” The legal definition of rape has changed substantially since the introduction of the Act last year.
The pre-existing definition (some of which was drafted in 1920 before even the reign of King Sobuza II), was narrow with respect to both gender and age; rape was an act of sexual intercourse committed by a man towards a woman against her will. As such, the SODV Act provided a long-overdue update to an obsolete, legal definition. The law now identifies rape as a crime which can be perpetrated by any person of any gender, on another person of any gender.
The SODV Act was drafted with the intention to better protect the rights of everyone, be it women, men or children. While in previous legislature rape was recognised, the difference now is that the Act takes into cognisance other acts which were not previously defined as rape and qualified as lesser crimes.
For instance, Eswatini now recognises rape against men and boys by either a woman or another man as rape and not indecent assault which was a much lesser crime and which often afforded perpetrators of these violent acts lesser sentences. It is worth noting that the provisions on rape in the SODV Act are not completely new but were found in different pieces of legislation (Common Law, Crimes Act, Women and Girls Protection Act to name a few). Under the SODV Act, they have been collated into one piece of legislation for ease of reference and consistency in sentencing.
If we are really to understand rape, it is first important to understand consent. Consent is permission for something to happen or agreement to do something. This implies that there should be a positive and affirmative ‘YES’ for something to happen, not the absence of a ‘NO’. When sex is involved, this is often where it all gets quite confusing and so today we are just going to focus on the ability to give consent.
In situations where an individual is not able to give consent to a sexual act, then any sexual act committed may be defined as rape. Clause 6 of the Act identifies circumstances in which a person is incapable in law of appreciating the nature of the sexual act as:
- A person who is asleep
- -A person who is unconscious
- A person who is under the influence of any medicine, drug, alcohol or other substances to the extent that the consciousness of that person or judgment is adversely affected
- A person below the age of 18.
I am sure that many of us will agree that these provisions are reasonable to protect those who are temporarily or permanently vulnerable from sexual assault. The legal age for consent to a sexual act is 18 years and above and an individual below this age cannot legally give consent for any sexual act, no matter what the age of the other person. The SODV Act further defines a non-consensual sexual act and makes intoxication and other excuses immaterial, which we will explore in future.
Rape or sexual assault often happens because a person believes that they are entitled to have sex with another person without obtaining that person’s consent (we prefer an enthusiastic ‘YES PLEASE’!).
Sexual assault can never be justified as a crime of passion, an entitlement, a possession or an irresistible desire for sex. Two people kissing or flirting all night at a club or drinking spot, for example, does not constitute consent, nor does accepting drinks or gifts.
When someone explicitly says ‘no’ to another’s sexual advances, then there is a real and genuine likelihood that any sexual act which follows that ‘No’ could be defined as rape. Simply put: each and every sexual act requires active and willing consent, freely given, no matter where it is or what has been said or done in the past.
Catch our column next week as we explore these complicated issues further and give some practical advice so that you can ‘sleep at night’ knowing that you’re on the right side of the law.