Assessing South Africa’s rape laws against due diligence criteria

Abstract

This dissertation critically examines the ‘mistaken belief in consent’ defence within South Africa’s rape laws, employing African feminist theory and international due diligence standards as analytical frameworks. The research explores the enduring influence of patriarchal biases in the South African judicial system and their disproportionate impact on female rape survivors, particularly those from historically disadvantaged communities. The primary research question investigates how the ‘mistaken belief in consent’ defence aligns with South Africa’s international human rights obligations to prevent and prosecute sexual and gender-based violence (SGBV). By analysing the implementation of these international obligations and the effects of this defence on survivors; experiences, the study identifies significant gaps between legal reforms and their practical outcomes, revealing systemic barriers that hinder justice for survivors. In response, the dissertation proposes complementary feminist strategies that enhance existing legal frameworks by prioritising social justice, advocating for community-driven justice approaches, and promoting legal empowerment. These strategies aim to align South Africa’s legal framework more closely with international human rights standards, addressing the challenges posed by the ‘mistaken belief in consent’ defence. The findings offer practical insights for civil society organisations, informing the development of culturally sensitive interventions that enhance public awareness, support services, and legal training programs, ultimately aiming to create a more effective and survivor-centred approach to SGBV.