Outrage over courts ruling on rape; Agreeing to have oral sex is giving consent to penetrative sex

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WARNING: This story contains content that may be triggering

The controversial court judgment on the issue of sexual consent could undermine South Africa’s quest to assert the human rights of women, according to a legal expert.

This comes after acting Eastern Cape High Court Judge Tembeka Ngcukaitobi overturned the conviction of a former paramedic who was found guilty of raping his girlfriend because, by agreeing to oral sex, Ngcukaitobi ruled, she had tacitly agreed to penetrative sex. She was a virgin.

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Ngcukaitobi set aside Loyiso Coko’s seven-year sentence, saying that the findings of the Makhanda Regional Court were “erroneous”. That court had found Coko guilty of raping his girlfriend, a Rhodes University master’s student, on July 1 2018.

Coko and the student, who was 23 years old at the time, were in a romantic relationship.

Ngcukaitobi’s judgment has sparked furious debate on the airwaves and on social media amid divided opinion on its interpretation of the meaning of consent.

Legal expert Advocate Modidima Mannya said he was concerned that the interpretation the judgment could reverse the gains made in the fight for the rights of women who had been raped, and for the definition one gives to consent within the context of human rights.

“My understanding is that this woman had said she would be interested in other forms of [sexual acts] except penetrative sex. Surely she had a reason for it. And I would be very concerned if we then interpreted this to mean that it is the responsibility of the woman to rebuff the man,” he said.

Mannya said, in the context of human rights, one has the responsibility to uphold the rights of other people.

“I think, in the context of saying a man and a woman agree to have sexual intercourse and define the parameters of that intercourse, that must be binding on the parties and it must be the duty of both to uphold.”

He said the magistrate who had convicted Coko would have considered the fact that the woman had stated that she did not want to have sexual intercourse, only oral sex. “You can’t say that, because we had oral sex, then you are entitled to penetration,” Mannya said.

He said the argument about the fact that the woman was not wearing underwear was neither here nor there.

“Why should she wear panties? And what [does] the fact that she was not wearing panties have to do with whether she agrees or disagrees? I think the judgment is not helpful in our fight to assert and uphold the human rights of women, who have been the subjects and objects of human rights [violations] for many years,” said Mannya, adding that he hoped the state would appeal Ngcukaitobi’s judgment.

However, another lawyer agrees with the judgment.

“It’s an excellent judgment on the law of implied consent, which is different from expressed consent and informed consent,” said Themba Langa.

“Ngcukaitobi probably noted that the guy didn’t intend to make the organ penetration as they had agreed not to have sex, therefore that deprives the guy of intention to act unlawfully.

Langa said:
Secondly, the organ penetration was the third instance of penetration after the two earlier instances of penetration during foreplay, namely oral and finger penetration, respectively, and that appear not to have elicited an objection or demonstrable lack of consent from the lady. It is the sequential chain of events that create or give rise to implied consent. This judgement doesn’t undermine the requirement of expressed consent or ‘no means no,’ as she didn’t say no either.

Javu Baloyi, spokesperson for the Commission for Gender Equality, said their lawyers were studying the judgment, as the commission has a keen interest in its interpretations and implications.

Nomvano Zibonda, the DA Women’s Network chair in the Eastern Cape, said the judgment was problematic as it took away the power of a woman to say no.

“My problem with the judgment is that it takes away the voice of women because, if at any time you are uncomfortable as a woman, you are entitled to say, ‘No, stop!’

“The minute you say stop, the person should stop. It cannot be that by allowing a person to kiss you, it means you have signed away all your rights as a woman or a person in the act. That does not sit well with me.”

In court, the National Prosecuting Authority said that Coko and his girlfriend had agreed to have oral sex, but the woman had expressly warned Coko against any penetration because she was still a virgin, News24 previously reported.

However, Coko forced himself on her and raped her. He was arrested in September 2018 after the woman laid a charge against him.

According to court papers, Coko said he had believed that consent had been given. He said that 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.

“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 also said that, even after the incident, the two had remained in contact and that between July 7 and July 10 2018, both the complainant and the appellant were concerned about the possibility that she had fallen pregnant.

“It was common cause that the appellant and the complainant were in a love relationship, which was terminated by the complainant shortly after the rape allegation.

“Notwithstanding the end of the relationship, they remained in contact as demonstrated by their communication by WhatsApp from July 7 2018 until August 23 2018,” Ngcukaitobi said in his judgment.

He added that, because the onus rested on the state to prove the guilt of an accused beyond reasonable doubt, there was no onus on the accused to prove their innocence.

– Citypress


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