Controversial rape acquittal goes to Supreme Court
- Lee-Anne Bruce
ISLA and CALS are intervening in the controversial S v Coko appeal
The Initiative for Strategic Litigation in Africa (ISLA) is represented by the Centre for Applied Legal Studies (CALS) in an appeal which raises important questions around how courts respond to cases of intimate partner violence. CALS will appear in the Supreme Court of Appeal on 14 November 2023 to argue the matter.
In October 2021, the Eastern Cape High Court handed down judgment in an appeal by Loyiso Coko, who had been found guilty of raping his then-partner by the Regional Magistrates Court. Although the complainant had said ‘no’ to sexual intercourse and had cried and tried to push the accused off her, the High Court found that the accused had not intended to rape her, and instead had mistakenly believed that she had consented. In making its determination, the Court relied upon certain facts to support the accused’s interpretations, such as the fact that he and the complainant had engaged forms of intimacy such as kissing and oral sex prior to the intercourse.
The Court’s findings, which essentially negated the complainant’s voice and utilized certain rape myths, subsequently prompted public outrage and is currently being appealed to the Supreme Court of Appeal by the Director of Public Prosecutions, Eastern Cape Division. Several institutions, including the Women’s Legal Centre and the Commission for Gender Equality, have applied to join the matter as “friends of the court” to assist the Court in determining this important case. The Initiative for Strategic Litigation in Africa (ISLA), represented by the Centre for Applied Legal Studies (CALS), was admitted as a friend of the court on 12 September 2022. The matter is set to be heard in Bloemfontein on 14 November 2023.
The Coko v S case is critical for exposing how South African courts still fail to adjudicate cases of intimate partner violence in a way that aligns with the country’s constitutional values and with international human rights norms. Although rape committed by women’s husbands, boyfriends or ex-partners is the most common form of sexual violence, these cases seldom reach the courts. Survivors of intimate partner sexual violence are confronted by lack of awareness, and discriminatory attitudes held by police and prosecutors, with the result that their cases rarely proceed to trial. When cases do reach the court, it is not uncommon that judges also fail to understand the dynamics of this form of rape. What we are left with is a high level of impunity for sexual violence that affects a large segment of women in South Africa.
ISLA and CALS have applied to join the matter in the public interest to assist the Court with information on what international human rights norms require of governments in responding to intimate partner violence. It is imperative that not only cases involving strangers, excessive violence, and use of weapons are the ones taken seriously by the justice system. Authorities must also diligently respond to cases with facts similar to those in Coko v S, by ensuring that partners who rape are properly prosecuted and punished. A human rights-aligned approach requires that courts understand all forms of sexual violence, including rape by intimate partners, and that they examine cases within the context of this knowledge so that victims are not discriminated against in the court process. Courts must also centre the voices and experiences of victims, and avoid using rape myths and stereotypes which have the effect of diminishing victims’ experiences, and bolstering the perspectives of perpetrators.
ISLA maintains hope that this case will play a critical role in lessening bias against intimate partner cases within South Africa’s criminal justice system, and will also help to foster a more victim-centred and rights-oriented response by authorities to women who report that they have been sexually victimized within the context of a relationship.
“There is no justifiable legal basis for the High Court’s finding,” says Sheena Swemmer, Head of Gender Justice at CALS. “The Court failed to perform a contextual analysis of consent in the case, which has resulted in a flawed judgment with dire public interest implications if left unchallenged. This places undue emphasis on the actions of the complainant instead of the perpetrator.”
CALS is represented in the matter by advocate Loyiso Makapela.
The matter is set to be heard on 14 November 2023 by the Supreme Court of Appeal.
For inquiries, please contact:
From the Centre for Applied Legal Studies (CALS):
- Sheena Swemmer (Head: Gender Justice) at Swemmer@wits.ac.za
From the Initiative for Strategic Litigation in Africa (ISLA):
- Sibongile Ndashe (Executive Director) at email@example.com
ABOUT THE CENTRE FOR APPLIED LEGAL STUDIES
The Centre for Applied Legal Studies (CALS) is a civil society organisation based at the School of Law at the University of the Witwatersrand in Johannesburg. Our vision is a society where historical and social justice is achieved, state institutions are strengthened and oppressive systems are dismantled. Read more about our work at https://www.wits.ac.za/cals/ or follow @CALS_ZA.
ABOUT THE INITIATIVE FOR STRATEGIC LITIGATION IN AFRICA
The Initiative for Strategic Litigation in Africa (ISLA) is a Pan-African and feminist initiative, founded in 2014 to strengthen strategic human rights litigation across the African continent. Find out more about our work at https://www.the-isla.org/about-us/ or follow @ISLAfrica.