All you need to know about sexual consent

Written by Sphelele Ngubane

You may be guilty of committing a sexual offence without even knowing it, if you are not aware of the laws around sexual consent in South Africa.

Before you engage in a sexual activity with anyone, you need to be sure they have given their full consent and are over 16 years of age.

National Prosecuting Authority (NPA) Senior State Advocate Mzoxolo Rusi from the Sexual Offences and Community Affairs Unit, spoke to Vuk’uzenzele to explain sexual consent under South African law.

Consent has to be free and voluntary. A person must not be forced to agree to a sexual activity.

“There is also a difference between consenting and submitting. Some people may find themselves not wanting to have sex, but the circumstances at the time force them to submit themselves to a sexual activity. You must be sure that the person you want to be intimate with is voluntarily agreeing, and not submitting themselves,” he says.

Children under 16 cannot consent

Under South African law, any person under the age of 16 may not consent to any sexual activity, because they are legally minors. Even if the minor has voluntarily agreed to take part in a sexual activity, it is still unlawful and the adult will face statutory rape charges.

However, if two minors are less than two years apart in age, and both agree to a sexual activity, police will not charge them, says Adv Rusi. Instead, he says, they may be sent for counselling. 

If the children are more than two years apart, however, the older one will be charged.

Adv. Rusi says the NPA has had cases in which parents want charges pressed, but the children refuse to co-operate, because they say they are in a relationship with the other person.

“In that case, we encourage parents to take their children for counselling, so they realise they were violated. Even if a person realises many years later that they were sexually assaulted, they need to come forward and we will investigate. Rape cases never get old,” explains Adv Rusi.

Sexual offences do not only include the obvious cases of rape or sexual assault. Other offences include:

Using your power to pressure someone into giving consent. For example, a parent or a teacher cannot use their status and financial power to get a child to engage in sex with them.

Misrepresenting yourself. There are cases in which an identical twin has sex with a person who has consented to sex with the other twin.

Having sex with a drunk person. An intoxicated person cannot give consent. Letting someone buy you drinks or a meal is not consent.

Having sex with a mentally challenged person. In most cases, a mentally challenged person has no understanding of the sexual activity or even knowledge that they need to give consent.

Withdrawing consent

A person may change their mind even after giving consent – even during the act. When a person says ‘stop’, you have to stop.

If you are a victim of gender-based violence (GBV), or you know someone who needs help, contact the national GBV Command Centre;
Call 0800 428 428
Send a ‘please call me’ by dialling *120*7867#
SMS ‘help’ to 31531