"She claims that I raped her but we normally sleep together and she is my girlfriend"

A lot of people are under the impression that one cannot be charged with rape if the complainant is your partner or spouse. This is totally incorrect and the current legal position in South Africa under the Sexual Offences Act together with the Domestic Relations Act is that a person may be charged with rape if the victim did not consent to same, irrespective of the nature of the relationship between the perpetrator and the victim.

A person only agrees to sexual intercourse if that person freely and voluntarily consents to such act taking place. Having sexual intercourse with a lady who is under the influence of any substance which challenges her sobriety is very risky, especially if the lady is not somebody you are familiar with or acquainted to. Under the South African law, a person cannot consent to sexual intercourse if he/she is asleep, unconscious or under the influence of alcohol or drugs. The Act further states that if the person is under the age of 12, is mentally disabled or threatened or is a victim of abuse of power.

Consent is something which should never be assumed to be given and should be present each and every time. Consent should be crystal clear, whether in writing or verbally. Consent in sexual acts refer to voluntary and unforced agreement between two parties. Consent may also be withdrawn at any given time, whether before or after penetration. Therefore is it possible for your own partner or spouse to lay a criminal charge of rape against you as per the South African law.

Nowadays in our society there is also a trend of young gentlemen leaving places of fun with females they just met and proceed to sleep with the latter mentioned. In most cases, both parties would be under the influence of alcohol and subsequently not in their rightful state of mind. The fact that a female left at a place of fun with a certain gentleman would be interpreted wrongly in that she left with the gentleman with the intention of having sexual intercourse with him. Should the male proceed and engage in sexual intercourse with the female and the following day the female alleges that the male raped her, what would be the male's defense in that regard? This trend includes the female seeking compensation the following day from the male and should the male fail to provide same, the female would proceed to go to the police station to lay criminal charges against the perpetrator.

Based on my experience this case would be much easier for the State than it is for the Defense as the State will only need to be prove beyond reasonable doubt that there was NO consent and the fact that there existed no prior relationship between the perpetrator and the victim will make it easy for the court to believe that there was indeed NO consent between the two parties, despite the fact that they left the place of fun together. It is rather better to NOT engage with anybody sexually whom you just met as it will only make it difficult for you to build your defense based on the fact that you have no witnesses who would correlate your version that there was indeed consent nor that there was prior relationship between yourself and the victim.

Even though in most cases there would be no witnesses that may have witnessed consent between two parties, but the determining factor in a criminal case might be the fact that there was consent in writing, whether on whats app or face book, or that the two parties had some sort of intimate relationship which might not be conclusive evidence in a court of law but it might assist in building a proper defense.    

In light of the above discussion, engaging in sexual intercourse with anybody is very risky and should be done cautiously so with explicit consent between both parties involved in same.