By Ashley Martin
On January 12, 2019, “South African President, Cyril Ramaphosa urged men to unite against rape and sexual assault.” In his speech, President Ramaphosa called for “harsher sentences for perpetrators, and ‘better skilled’ police and prosecution authorities ‘to improve the capacity to investigate and prosecute all crimes.’” Rape is a significant issue in South Africa. According to reporting statistics, between 2017—2018 there were 40,035 reported rapes. This is a 0.5% increase from 2016-2017. However, “the number of rapes committed each year cannot be estimated because there is no underreporting rate . . . that is recent or representative.” Besides increasing sentence and providing better training for police and prosecutors, how else can South Africa address this “national crisis” of gender-based violence?
First and foremost, is addressing the underreporting of rape. Managing Director of Law for All, Jackie Nagtegaal reports that about 90% of rapes are not reported to police. Why is this number so low? Because just like rape and sexual assault victims across the globe, “many victims feel as though they won’t be believed; there is a widespread belief that many victims are to blame for being raped because of wearing revealing clothes, being intoxicated, or even due to their sexual orientation among others.” Another cause of underreporting is “the female fear factory.” According to Professor Gqola, the “female fear factory” sends a specific message to women. For example, the rape and murder of 17-year-old Anene Booysen tells women “don’t go out at night, or that could happen to you.”
One of the main reasons rape is underreported is because the victims feel as though they will not be believed. And why wouldn’t they feel that way when arrests are made less than 50% of the time, less than 20% of those arrested are tried, and only 5% are actually convicted. If law enforcement made arrests in all cases that an arrest was possible, then each of these statistics would increase. Law enforcement should also be trained that “the victim is never at fault.”
Second, South Africa could shift the burden from the victim. In a prosecution for rape, the victim bears the burden of proving above a reasonable doubt that they were raped. There are two possible ways South Africa could shift the burden from the victim. One option is to adopt a system like the United States’ that requires the prosecution prove beyond a reasonable doubt that the defendant raped the victim. Under this system, the victim would only serve as a witness. Alternatively, South Africa could pass a law identical to Iceland’s new law that requires the accused prove the other person consented. The new law in Iceland “makes sexual relations with a person illegal unless [the accused] has [the other person’s] explicit consent.” The law requires that consent be “clearly and voluntarily expressed.” Additionally, consent is not given if violence, threats, or other unlawful coercion was employed to gain consent. Violence encompasses the “deprivation of independence by means of confinement, drugs, or other comparable means.” Adopting a law similar to Iceland’s could be the change that President Ramaphosa was searching for. Iceland’s law sends a clear message: all sexual relations without clear and voluntarily given consent is rape.
To address South Africa’s national crisis of rape and sexual assault, more is necessary than just increasing sentences and having better skilled police and prosecutors. Something must be done to encourage victims of rape and sexual assault to report their attacks to law enforcement. Training law enforcement and prosecutors that the victims are never to blame is easier said than done. Especially in a society where “both men and women assume that sexual violence is a fact of life, inevitable.” But by shifting the burden from the victim to the accused could be a step in the correct direction. Shifting the burden would no longer require the victims to prove a rape, but rather that the accuser prove consent. Adopting this type of law demonstrates to the victims that they are believed, and a burden shift of this type could address the national crisis.
 South Africa’s Cyril Ramaphosa urges action against ‘rape crisis’, BBC News (Jan. 12, 2019), https://www.bbc.com/news/world-africa-46851802.
 FACTSHEET: South Africa’s crime statistics for 2017/18, Africa Check (Sept. 11, 2018), https://africacheck.org/factsheets/factsheet-south-africas-crime-statistics-for-2017-18/.
 See BBC News supra note 1.
 Jackie Nagtegaal, The Cost of Rape: Seeking Justice in South Africa, Daily Maverick (Sept. 7, 2018), https://www.dailymaverick.co.za/opinionista/2018-09-07-the-cost-of-rape-seeking-justice-in-south-africa/.
 Rebecca Davis, How rape became South Africa’s enduring nightmare, The Guardian (Sept. 29, 2015), https://www.theguardian.com/world/2015/sep/29/south-africa-rape-nightmare-crime-stats.
 Id. Anene Booysen was gang-raped, horribly beaten, and left for dead in Bredasdorp. David Smith, South African girl’s gang-rape and murder triggers political outrage, The Guardian (Feb. 7, 2013) https://www.theguardian.com/world/2013/feb/07/south-africa-girl-gang-rape-murder.
 Nagtegaal supra note 7.
 Nkateko Mabasa, The high cost of proving sexual assault in South Africa, Daily Maverick (Sept. 27, 2018), https://www.dailymaverick.co.za/article/2018-09-27-the-high-cost-of-proving-sexual-assault-in-south-africa/.
 Criminal and Civil Justice, The Nat’l CTr. for Victims of Crime, http://victimsofcrime.org/media/reporting-on-child-sexual-abuse/criminal-and-civil-justice (last visited Jan. 13, 2019).
 Michelle Hennessy, Would it wok here? New law in Iceland means rape accused must prove they had explicit consent, The Journal (Apr. 8, 2018), https://www.thejournal.ie/iceland-consent-3943673-Apr2018/. This law can and does raise questions of due process rights, but it could be implemented as an affirmative defense that the accused may assert.
 See id.
 BBC News supra note 1.
 Nagtegaal supra note 7.
 See Hennessy supra note 18.