A young legal scholar from Nelson Mandela University is shaking up the conversation around consent and justice in South Africa's rape laws.
Recent Master of Laws graduate Moi-Sui Ah Goo has completed research that questions one of the most controversial aspects of South Africa's rape laws: the defence of subjective consent. Her dissertation proposes switching to an affirmative consent model (ACM) that demands a clear and unequivocal 'yes' throughout sexual activity.
"Under the ACM model, consent isn't assumed from silence or passivity, nor from previous sexual history, or a lack of physical resistance," Ah Goo explained. "Instead, consent must be actively sought and maintained through words or conduct that positively indicate agreement."
This approach shifts the focus from the survivor to the accused, making it harder for someone to claim they believed consent existed without taking reasonable steps to confirm it. Ah Goo argues this would reduce secondary victimisation, where survivors face invasive scrutiny over what they wore, whether they resisted, or their behaviour before an incident.
"These questions shift accountability from the complainant to the accused," she said.
While South Africa's Criminal Law (Sexual Offences and Related Matters) Amendment Act of 2007 introduced reforms, the continued recognition of a subjective belief in consent creates uncertainty and inconsistency in rape prosecutions, Ah Goo says. Prosecutors often struggle to disprove an accused person's internal state of mind beyond reasonable doubt.
This makes convictions hard to secure, and many survivors become reluctant to report sexual violence, fearing their experiences will be scrutinised instead of the accused's conduct.
Ah Goo's research has gained added significance after the Embrace Project case, which questioned whether an accused person can rely on a belief that consent existed without taking reasonable steps to establish it. The Constitutional Court hasn't yet delivered its final ruling.
"The law should require more than a claimed belief that someone consented; it should demand a clear and unequivocal 'yes'," Ah Goo said.
Ah Goo will be admitted as an advocate on 24 July. She's already worked on major cases, including the successful prosecution of the Ayuk brothers human trafficking case and the ongoing Nafiz Modack trial. Now specialising in criminal and immigration law while pursuing a PhD in Public Law, she hopes her work will contribute to a justice system that better serves survivors.
"I hope that my research will contribute to a future in which South African rape law more effectively protects survivors," she said.
For Ah Goo, the research is part of a broader effort to build a society where dignity, equality and bodily autonomy aren't just constitutional ideals but lived realities for all South Africans.