The end of the rope: The Criminal Law’s perspective regarding Acts of Consensual Sexual Violence between adult partners within the South African, English and Canadian legal frameworks.
Soni, Vishay Kumar.
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Nestled within the Constitution lies a guarantee for the sanctity and enforcement of sections 10, being the right to human dignity, 11, promising the right to life and 12, protecting the freedom and security of the person.1 On the converse, the acts of consensual sexual violence between adult partners, from the practices of sadomasochism and BDSM, question the very essence of these protected Constitutional rights. South African criminal courts have not yet heard a matter concerning a dispute arising from consensual sexual violence. However, such may not be completely obscured within the vast discord of legality. The complexity and lingering shroud of legal ambivalence over this practice raises the question of whether South African courts will deem such activity as inherently criminal, based on existing legislation; along with the similarities in both national and international case law. Will a court find its definition within the common law crime of assault, or pay homage to the aforementioned Constitutional rights and rule in favour of the rights to privacy, dignity and freedom of expression? A court may also draw inspiration from the assessment of public policy, public interest and the often-illusive judicial perspective of victimless crimes. This dissertation analyses the development of relevant criminal cases within the jurisdictions of England and Canada involving consensual sexual violence, bringing varying degrees of bodily harm, and its displacement within those legal systems. The dissertation interprets and compares such developments by the implementation of a cross-jurisdictional timeline regarding cases of consensual sexual violence and similar acts. Such leads to the juxtaposition within South African criminal jurisprudence, paying homage to the relevant Constitutional rights guaranteed to every citizen within South Africa. The dissertation delves into the assessment and interpretation of relevant South African viewpoints regarding legal aspects such as consent, public policy, autonomy, dignity, sexuality, and elements of assault. This inquiry determines whether there is a duty upon the State to intervene and control such practices of consensual sexual violence in the democratic society,or whether there is any respite for the State within the private confines of consensual adult interactions. Ultimately, this dissertation analyses the possible legality of consensual sexual violence arising in varying degrees of bodily harm between consenting adult partners within South Africa. This is explored through perspectives of English and Canadian law by implementing a cross-jurisdictional timeline, in juxtaposition to the South African Constitutional prerogatives. Such a comparative inquiry leads to the possible position of the South African law in dealing with acts of consensual sexual violence and the interpretation of harm that emanates from these practices.