By Lehlohonolo Lehana.
A new judgment looks set to raise questions about whether foreplay that includes extensive kissing, undressing and engaging in oral sex constitutes tacit consent for penetrative sex.
There has been an uproar over the judgment handed down by Acting Judge Tembeka Ngcukaitobi and Judge Nyameko Gqamana in an appeal against a conviction of rape in the Eastern Cape high court.
The head of the Gender Programme at Centre for Applied Legal Studies at Wits University Sheena Swemmer during an interview with radio 702 said the two issues emerge from this judgment. They both centre on South Africa’s prevalence of rape culture and thus rape stereotypes. The first is that a woman must be threatened or forced in order for a rape to be considered as “legitimate”. This is explicitly absent from our laws on sexual offences, the Criminal Law (Sexual Offences and Related Matters) Act.
“Here, the definition of rape does not require any type of force or threat and instead requires intention on the part of the accused and a lack of consent from the victim. Threats and force can and often are absent from many rape cases.”
The second issue that emerges from this judgment is the idea that if one consents to one type of sexual encounter, then one consents to everything. This is not part of our law either. The act establishes instead that there can be a lack of consent where someone agrees to one form of sexual act and then another, which they did not consent to, occurs. There is no basis in our law to support the judges’ arguments that consenting to kissing or having your clothes removed necessarily implies consent to intercourse, added Swemmer.
Acting Judge Ngcukaitobi set aside Loyiso Coko’s seven-year prison sentence, saying the findings of the Makhanda Regional Court were “erroneous”.
The regional court had found Coko guilty of raping his girlfriend, a Rhodes University Master’s student, in July 2018.
Coko, a former paramedic, and the student, who was 24 years old at the time, were in a romantic relationship.
The National Prosecuting Authority had said the two had agreed that they could have oral sex, but the woman had expressly warned Coko against any penetration because she was still a virgin.
However, Coko forced himself on her and raped her.
He was arrested in September 2018 after the student laid a charge.
But according to court papers, Coko said he believed that consent had been given, and had he known that consent had been withheld, he would not have proceeded with intercourse.
In his judgment, Ngcukaitobi said: “It was the evidence of the appellant (Coko) that throughout the encounter, the complainant was an equally active participant, she was not merely passive – she kissed the appellant back, she held him, she had no problem with the removal of her clothes, she watched him take off his clothes without raising an objection, she knew he was erect, she did not object to the oral sex.
Ngcukaitobi said:The only area where there was a dispute was after the penetration. It is in this area where the complainant says she objected and said the penetration was hurting. The appellant’s evidence was that when the complainant said the penetration was hurting, he ‘would stop and then continue’.
Ngcukaitobi said this aspect was not taken up during cross-examination nor was it weighed in the assessment of the probabilities by the magistrate.
“It was not the evidence that the appellant simply continued with the intercourse in disregard of the wishes of the complainant, as held by the magistrate.”
He added: In these circumstances, I cannot uphold the findings of fact of the magistrate which are unjustified when one has regard to the record. I cannot hold that the state proved that the version of the appellant that he genuinely believed there was at least tacit consent was false beyond reasonable doubt.
The acting judge also said the finding by the magistrate that the woman made it clear to Coko that she did not consent during the kissing and the oral sex was “not correct and not borne out by the record”.
“The magistrate found that the rape was planned beforehand. He concluded that the appellant lured the complainant to his apartment thinking that he could get away with the rape. There is no evidence to support this conclusion,” Ngcukaitobi said.