Consent and the law

Consent means freely agreeing to sexual activity. It sounds simple, but many young men are never clearly told what the law says or what it means in real life. Knowing the rules protects you and the people you are with. It also helps you recognise when your own consent was ignored.

In South Africa, the main law on this is the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, usually called the Sexual Offences Act.

What consent means

Under the Sexual Offences Act, consent means voluntary and uncoerced agreement. In practice:

• It must be freely given. Agreement that comes from pressure, threats, force or fear is not consent.
• It is specific. Agreeing to one thing does not mean agreeing to everything.
• It can be withdrawn at any time. Anyone can change their mind, even partway through. When they do, you must stop.
• Silence is not consent. Someone who goes quiet, freezes or doesn't push you away has not agreed.
• A relationship is not consent. Dating, living together or being married does not give anyone a right to sex. Rape within a marriage is still rape.

If you are not sure whether the other person wants to continue, stop and ask. If you are still not sure, don't go ahead.

When a person cannot consent

The law says there is no consent in certain situations, even if the person seemed to go along with it. These include when:

• force, threats or intimidation are used against them or someone close to them
• someone abuses power or authority over them, such as a boss, teacher, coach or older relative
• they are tricked or deceived, for example about who the other person is or what is happening
• they are asleep or unconscious
• they are too drunk or high to understand what is happening
• they have a mental disability that means they can't understand what they would be agreeing to

If either of you has been drinking or using drugs, be extra careful. When in doubt, wait.

The age of consent

The age of consent in South Africa is 16. It is the same for everyone, whatever their gender or sexual orientation.

• Sexual activity with someone under 16 can be a serious crime, even if they said yes.
• Children under 12 cannot consent to any sexual act at all.
• The law has special rules for teenagers who are close in age to each other, so that two young people who both agree are not treated as criminals in the same way as an adult would be. These rules are narrow and depend on both people's ages.
• Where there is a bigger age gap, or one person is an adult, sexual activity with someone under 16 can lead to criminal charges even if the younger person agreed.

At 16 or 17 you are still a child under the law for some purposes. Asking for, taking, keeping or sharing sexual images of anyone under 18 is a serious crime, even if they agreed. See sextortion and online blackmail.

Myths and facts

If your consent was ignored

If someone did something sexual to you without your consent, it was not your fault. That is true whether they were a stranger, a friend, a partner or an adult you trusted, and whether they were a man or a woman. It is still not your fault if you had been drinking, if you froze, or if your body responded.

You have choices:

• Get medical care as soon as you can. Some treatments, including medicine to prevent HIV, work best when started quickly. A Thuthuzela Care Centre, clinic or hospital can help.
• Report it to the police by opening a case, if and when you are ready. See what to do after a sexual assault.
• Tell an adult you trust if you are under 18, or call Childline on 116.
• Talk to someone. A counsellor or helpline can help you deal with what happened.

If you are accused

False accusations do happen, and they can turn a man's life upside down. At the same time, every report deserves to be taken seriously, and everyone accused has the right to a fair process. If someone says you did something without their consent, don't contact them to argue or explain, and don't post about it online. Get legal advice early. See if you are falsely accused.

Getting support

• GBV Command Centre: 0800 428 428 (all genders, 24/7)
• Childline South Africa: 116 (for children and teens)
• Lifeline South Africa: 0861 322 322 (24/7)
• Legal Aid South Africa Advice Line: 0800 110 110
• SAPS emergency: 10111, or 112 from a cell phone

If something happened to you, you can make an anonymous report and tick that you would like support. You can also contact the Men for Change support team. More helplines are on our resources page.