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‘Foreplay’ judgment: problematic judicial views around consent in rape cases persists

- Sheena Swemmer

In SA it is alarming and legally dangerous to have a judgment that consensual foreplay implies consent for penetration and sex, and thus rape did not occur.

On 8 October 2021, Acting Judge Tembeka Ngcukaitobi and Judge Nyameko Gqamana handed down judgment in an appeal against a conviction of rape, in the Eastern Cape high court. The appeal was successful and the judges found that the previous sentence of seven years’ incarceration for rape was “unduly harsh, ignores interests of society, and induces a sense of shock”.  

Unfortunately, the judges seem to be wrong about the interests of society pertaining to the sentence handed down to the accused, as society’s sense of shock seems now to be centred on the judges’ rationale for overturning the Makhanda Regional Court’s decision.

Civil society organisations such as the International Commission of Jurists – Africa quickly tweeted that “ICJ Africa is appalled to see Acting Judge Ngcukaitobi has ruled in favour of the appellant in Coko v S, where appellant argued that the foreplay he had with his ex-girlfriend indicated she had tacitly consented to sex”. Lawyers for Human Rights similarly replied: “We are disappointed in this judgment” and “consent to one sexual act can never imply consent to all sexual acts”.  

The case dealt with a young woman who reported her former partner ignored her explicit wishes not to engage in penetrative sexual intercourse and raped her. The accused admitted in evidence before the court that “sexual intercourse was not part of the plans for the evening” and that the woman has previously discussed with him that she did not feel ready for intercourse. Yet, he admitted to the court that due to the “foreplay and the body language of the Complainant”, he believed that “she was a willing participant”. 

The judges set out the various times the victim both tacitly and actively said no, such as when the accused took off her pants and she said “no, I don’t want to have sex with you” and when he penetrated her and she said that she was crying and trying to push him off of her. Yet “he wouldn’t stop and he just carried on shoving it in and out and kept saying sorry in my ear”. 

Despite the evidence that the victim did not consent to intercourse with the accused and consistently objected to his advances, the judges instead found that during the alleged rape “the Complainant was an equally active participant, she was not merely passive” and based this inference on the fact that the victim “kissed the Appellant back” and had no objection to him taking off her clothes. The judges make another assertion that there was no rape as “no threats or force were used to coerce the Complainant”.  

Two issues emerge from this problematic 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. Even the act acknowledges this fact and establishes that there may not be consent if there is an “abuse of power or authority”; where a sexual act is committed under false pretences; where a person is unconscious; or where a child is under 12 years of age, in an altered state of consciousness or has a mental disability.

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.  

In a society such as South Africa, which is plagued with gender-based violence, it is both alarming and legally dangerous to have a judgment such as this. In light of this judgment and the problematic precedent that it sets — that when one consents to one form of sexual activity this can then be understood as consenting to all forms — we must call upon the National Prosecuting Authority to appeal. Our laws and judgments must not fall prey to the stereotypes around rape and the effects of rape culture if we aim to see a country with decreasing rates of gender-based violence. DM

Sheena Swemmer is the head of the Gender Justice programme at the Centre for Applied Legal Studies, Wits University. This article was first published in Daily Maverick.