Master's graduate Moi-Sui Ah Goo together with Executive Dean of Law Professor Lynn Biggs
“South Africa's rape laws are in urgent need of reform,” says Ah Goo whose ground-breaking Master’s research, Abolition of the Defence of Subjective Consent: Towards an Affirmative Consent Model for Rape, argues that the legal system should move away from a framework that focuses on what an accused person claims to have believed.
"The law should require more than a claimed belief that someone consented, it should demand a clear and unequivocal ‘yes’," explains Ah Goo who will be admitted as an advocate on 24 July.
A clear and unequivocal ‘yes’
At a time when the nation is searching for more effective responses to sexual and gender-based violence, Ah Goo's research is among the first Master's dissertations in South Africa to comprehensively examine the affirmative consent model (ACM) within the context of rape law.
Under the ACM model, consent is not assumed from silence or passivity, nor from previous sexual history, or a lack of physical resistance. Instead, consent must be actively sought and maintained throughout the sexual interaction through words or conduct that positively indicate agreement to engage in sexual activity. It needs to be clear, voluntary, conscious and ongoing.”
Rethinking Consent
The shift may sound subtle, but its implications are profound.
Currently, South African law allows an accused person to rely on a defence known as "mistaken belief in consent". This means an accused may avoid conviction if they genuinely believed the complainant consented, even if that belief may have been unreasonable under the circumstances.
According to Ah Goo, this subjective standard places excessive emphasis on the accused's state of mind rather than on the objective reality of whether consent was actually obtained.
Under an affirmative consent model, courts would ask different questions:
Did the accused obtain clear consent?
Did they take reasonable steps to establish that consent existed?
Was consent ongoing throughout the encounter?
Could a reasonable person, based on the available evidence, conclude that consent had been clearly communicated?
These questions, Ah Goo argues, shift accountability from the complainant to the accused.
Secondary victimisation
“For decades, rape prosecutions frequently focused on the complainant's conduct, behaviour and credibility,” she explains. “Courts routinely examined what a complainant wore, whether they resisted physically, or how they behaved before and after an incident. Invasive cross-examination of complainants contributed to what many advocates describe as secondary victimisation.”
Although legal reforms introduced through the Criminal Law (Sexual Offences and Related Matters) Amendment Act of 2007 represented significant progress, Ah Goo argues that important shortcomings remain: “The continued recognition of a subjective belief in consent creates uncertainty and inconsistency in rape prosecutions. Prosecutors often face the difficult task of disproving an accused person's internal state of mind beyond reasonable doubt.”
The consequences, she adds, extend beyond individual cases. When convictions become difficult to secure because of subjective interpretations of consent, many survivors become reluctant to report sexual violence, fearing that their experiences will be scrutinised rather than the conduct of the accused.
“I hope that my research will contribute to a future in which South African rape law more effectively protects survivors.”
A Landmark Court Case Signals Change
Ah Goo's research gained additional relevance following the landmark Embrace Project NPC and Others v Minister of Justice and Correctional Services case, decided by the Gauteng High Court in Pretoria in September 2024.
The court found that aspects of South Africa's current legal framework permit accused persons to avoid criminal liability based on a subjective belief in consent, even where that belief may be unreasonable.
The High Court held that this approach may undermine constitutional rights to dignity, equality and bodily integrity.
In a significant development, the court ruled that accused persons should not be able to rely on a belief in consent unless they took objectively reasonable steps to establish that consent existed.
The judgement has since been heard by the Constitutional Court, with a final ruling still pending.
For Ah Goo, the case represents a pivotal moment in South African legal history and closely aligns with the principles underlying the affirmative consent model. However, one of the challenges identified in her research is the absence of detailed statutory criteria explaining what constitutes "reasonable steps" to establish consent. Without clear guidelines, judges may still rely heavily on individual interpretation, potentially creating inconsistency in future cases.
“My dissertation therefore recommends that any future reforms include explicit criteria to guide courts, prosecutors and legal practitioners,” says Ah Goo.
Her practical legal experience already includes work on two high-profile, high court South African criminal cases in Cape Town, including the kidnapping and sex/human trafficking prosecution of the Ayuk brothers where Edward Ayuk was sentenced to five life terms; and the ongoing racketeering and murder trial of Nafiz Modack and his co-accused.
She is now specialising in criminal and immigration law while pursuing a PhD in Public Law at Nelson Mandela University.