The case against a subjective test
Acting judge Tembeka Ngcukaitobi’s acquittal on appeal of a rape suspect has raised controversy, but legal experts say the fault lay with legislators and not the court
Should a rape suspect be allowed the legal defence that he genuinely, if mistakenly, believed his alleged victim had consented to sex? The question has occupied the legal commentariat for a fortnight after the acquittal on appeal by the Eastern Cape high court of a young paramedic convicted of raping his girlfriend and sentenced to seven years in prison by the Grahamstown magistrate’s court.
The high court ruling by acting judge Tembeka Ngcukaitobi has outraged others less schooled in criminal law, who have understood it to say the court found that consent to foreplay or oral sex equals consent to penetrative sex.
This is not the law and it was not Ngcukaitobi’s conclusion, but it is doubtful that a more careful reading of the ruling and his reasoning will silence the controversy, for two or more reasons.
The summary of the facts tell affectingly of banal intimacy becoming, at the least, abuse. There are no ready statistics about how often the same defence is successfully raised on similar facts in the magistrate’s courts, where most rape matters are finalised, partly because rulings here do not reach the law journals. Coko vs S was reported, but it arguably drew more scrutiny still because it was delivered by Ngcukaitobi, the silk who in June secured Jacob Zuma’s committal for contempt of court.
The National Prosecuting Authority is weighing whether to appeal, according to its spokeswoman for the Eastern Cape, Anelisa Ngcakani. If it does, the supreme court of appeal (SCA) can consider only whether there was a misdirection in law or a mistake in sentence that raises a reasonable possibility that it could reach a different finding.
It may not interfere on questions of fact and has no jurisdiction arising out of public interest in criminal cases, and is, therefore, “exceedingly” unlikely that the case will reach the SCA, said criminal law expert and scholar, advocate James Grant. “They would somehow have to frame what happened as a miscarriage of law, and I don’t see anything; I might disagree with the evaluation of the evidence, but that is a question of fact, and it is off the table completely because it would violate the right against double jeopardy,” Grant said.
The case has not only prompted unrealistic calls for appeal, but for legal reform to get around the minefield that is the ambiguity of consent and how it is determined in cases of acquaintance rape.
The 2007 amendment to section 3 of the Criminal Law Act widened the definition or rape, but the discourse on sexual violence has shifted in the decade that spawned the #Metoo movement.
So have normative ideals of consent — away from an acceptance of ambivalence as inherent in intimacy — to something constantly negotiated, never assumed.
The opposite happened in this case. The accused and the complainant, a 23-year-old master’s student, agreed to spend the night at his home. They had been dating for a few weeks and had a physical relationship, but
the complainant was a virgin and clear at the outset of that evening, as before, that she did not want to have intercourse.
They watched a film in bed, cuddled and the accused performed oral sex on her. The complainant testified that they kissed afterwards and, at this point, she felt more at peace, but subsequently powerless and violated when penetrative sex followed. They argued for days. He sent a message saying he doubted he deserved her forgiveness. She agonised for weeks before laying charges.
In court, the complainant testified that he “went with the motion” of what was transpiring, based on her body language and the fact that she had not by then reiterated her earlier refusal to have sex.
According to both parties, she objected only when there was penetration, complaining of pain. On both their versions, he would stop, then continue. Where their testimony differs is that she claimed to have tried to push him away.
The high court stressed that the state had an onus to prove that the appellant was aware that there was lack of consent, and that his main defence was that he genuinely believed that consent had at some point been given tacitly.
“An accused cannot solely rely on the ‘body language’ of a rape victim to override his or her express words. But the record does not suggest that this is what happened here,” Ngcukaitobi said.
He noted that subsequent to her stated refusal to have intercourse, the complainant allowed oral sex, kissing and penetration, and finds that on the prescribed subjective test, the accused could plausibly have believed this equaled consent. The complainant conceded that this could have been possible.
The ruling flagged that the court a quo had here erred by finding that, on her evidence, the complainant had again, after oral sex, warned the accused that she did not want inter
course. On the contrary, the high court held: “On the complainant’s version, there was no manifestation of any refusal of consent between the kissing, the oral sex and the penetration. The evidence was that it was only after the penetration that the complainant experienced pain and told the appellant to stop as he was hurting her. The appellant accepted this, but said he would stop and then continue.”
Nowhere did the record justify the magistrate putting it to the accused that at this point the accused made plain she did not want penetration, “but all of a sudden you did exactly that”.
It was a clear misdirection, the high court noted, adding that the court a quo further erred by going as far as to conclude that the accused had lured his girlfriend to his home with premeditated intent. Again, the evidence did not lend itself to this interpretation.
The proverbial jury is out as to whether the high court found that consent was indeed lacking.
“As many times as I have read it, I cannot discern whether the court is making a finding as to whether there was consent or not,” Grant said.
“I abandoned that and sought instead to answer the question the court set for itself, which was the defence: that the accused either believed or mistakenly believed that there was consent. And that is enough in our law as it stands.”
Advocate Ben Winks said it can be inferred that the court found consent was absent, but the ruling showed again why the defence of subjective belief of consent should be scrapped.
“A lot of people are misinterpreting the judgment as saying there was tacit consent in this case and foreplay implies tacit consent. It is not what the judgment is saying: the judgment found that there was no consent, as an objective consent, but he was acquitted because he subjectively believed that there was tacit consent,” he said.
“So for the state to succeed in a rape case they have to prove both elements, first the objective element that consent was lacking [and] also the subjective element that the accused knew that consent was lacking.”
In other words, the court’s inquiry was not whether it was reasonable for the accused to believe that there was consent, but whether the state could
prove beyond a reasonable doubt — the standard in criminal cases — that he did not believe that consent was given.
Winks said had the test rather been whether the accused’s belief was reasonable, the conviction would have been upheld. The subjective test meant rape myths could be raised as a defence, provided the accused believed them, as Zuma’s acquittal on rape charges in 2006 arguably showed.
Johan Lorenzen, an associate at public interest law firm Richard Spoor Inc, said: “Judges’ personal sensibilities will often influence their outcomes in considering whether to accept a subjective account.”
An objective test, he submitted, would allow their reasoning to be set
out more transparently and make convictions easier to obtain.
But even as the law stood, Lorenzen said, the courts had leeway to apply the principle of dolus eventualis — which passed into popular parlance during the Oscar Pistorius murder trial.
Here it could have allowed the court to conclude that, on the facts, the accused must have foreseen the possibility that the complainant continued to withhold consent, but proceeded regardless of the harm that might follow.
Grant said dolus eventualis “actually throws the net for finding an accused person guilty in circumstances such as this very widely” and may well have applied in this case.
“The way the judgment is reasoned on the facts, I can say that I may well have concluded differently,” Grant
said. “I may well have found that there was dolus eventualis, but I have to say that and then immediately say that I was not sitting with the full record before me. I have not seen the full record.”
For him, it was striking that the court was not swayed by the complainant’s testimony that she tried to make the accused stop.
“I don’t think the court treated that as the charge of rape against him; I think the court treated the question of rape in a very formalistic way as to whether there was consent at the moment of penetration, and I do think a proper understanding of the law must read in that where consent is withdrawn, that no matter whether penetration has commenced, it would be rape to continue.”
Grant recalled that this was proposed to the law commission at
the time of drafting the section 3 amendment.
“That argument was made and it was something that needed to be corrected in the law; unbelievably the law commission simply ignored that argument and went ahead and defined rape around penetration, stupidly,” he said.
The legislators had a further option still, he said. They could have defined rape more eloquently as unlawful, intentional intercourse without the emphasis on the absence of consent. It would have meant that consent was not only weighed as a matter of fact, but of normative law, and this would have allowed the courts a less static approach to their inquiry.
But the amendment went the other way and, given criminal law evolved so slowly, Grant said further reform was now unlikely “in our lifetime”.