State win in contentious rape case

The supreme court of appeal confirms the stringent standards for consent to sexual intercourse as a defence

The supreme court of appeal (SCA) on Wednesday upheld the state’s appeal to the controversial acquittal of a paramedic accused of raping his girlfriend in the case of S v Coko.

The appellate court found that the Eastern Cape high court had erred in accepting that, on the facts, it was plausible that the accused had believed that consent to sexual intercourse had been tacitly given.

“Taking into account the conspectus of the evidence, there can be no doubt that rape was proved beyond a reasonable doubt in this case,” it said, and referred the matter back to the high court to determine whether an initial seven-year sentence imposed by the Grahamstown magistrate’s court was appropriate.

In doing so, the SCA confirmed a stringent test for consent as a defence to the charge of rape and, crucially, made it clear that the presence of dolus eventualis — meaning that the accused must have foreseen the possibility that consent was absent but continued regardless of the harm that would follow — was cause to convict.

It was not in question that intention was integral to the definition of rape; in other words the accused must know the complainant had not consented to penetrative sex, the court said, before adding: “Even dolus eventualis suffices.”

The acquittal of the accused in 2021 by acting Judge Tembeka Ngcukaitobi raised considerable debate about the subjective test on consent in terms of which an accused can plead that he held the genuine, if mistaken, belief that he was not acting against the will of the victim.

The case dates back to July 2018. 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 but then decided to lay charges.

In court, the complainant testified he “went with the motion” of what was transpiring, based on her body language and the fact that she had not resisted oral sex and had not 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 found that on the prescribed subjective test, the accused could plausibly have believed this equaled consent. Therefore, the appeal against the finding of the magistrate’s court was upheld.

But the supreme court of appeal said the high court had erred, in particular in accepting that the victim was an active participant because she had not objected to what had preceded penetration.

“Consent for penetrative sex must be communicated by the complainant to the accused,” it said.

The court found that the complainant in this case had demonstrated her unmistaken objection to continued penetration. The accused accepted that she complained of pain, it noted.

“The respondent would, as he testified, however, merely pause and then continue. There is no evidence that he first established from TS [the victim] whether he could continue, or that she communicated her consent to him to continue, even by her conduct,” it said.

The court emphasised that consent ceased to be a defence if it was withdrawn during penetration, even if the complainant had initially consented to penetration, which was not the case here.

“At this juncture, a pertinent observation of considerable weight may be mentioned,” it said.

“Logic dictates that, even in circumstances where consent has been given to a specific sexual act, it may also be withdrawn during the sexual act to which the consent relates.

“This then means that, if B changes her mind and communicates her change of mind to A, there would be no consent to speak of beyond the withdrawal of the consent previously granted.”

The high court ruling was widely — and loosely — criticised as equating willing participation in foreplay to consent to penetration.

The appellate court appeared to agree that the high court had accepted this as a defence on the part of the accused.

“Consent to foreplay does not constitute consent to an act of penetration. The respondent squarely relied on and equated the complainant’s consent to ‘foreplay’ and oral sex as constituting consent to sexual penetration.”

The court, in the preface to its ruling, said the prevalence of rape in South Africa eroded the basic rights of women and children.

“For most women and children, in particular, the rights guaranteed everyone in the Bill of Rights, such as the right to be free from all forms of violence from either public or private sources, bodily and psychological integrity, including the right to make decisions concerning reproduction and security in, and control of, their bodies, ring hollow.”

A constitutional challenge to the retention of the subjective test on consent is pending before the Pretoria high court.

It was filed by the Embrace Project, which submits that the defence allowed men to successfully raise a legal defence based on rape myths and placed an excessive burden on the state to prove the mindset of the accused.

The ministry of justice is opposing the application.

‘An accused cannot solely rely on the ‘body language’ of a rape victim to override his or her express words’