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Supreme Court rules consent to "foreplay" does not constitute consent to sex

- Lee-Anne Bruce

CALS represented the Initiative for Strategic Litigation in Africa and argued intimate partner violence must be prosecuted and punished with due care

The Centre for Applied Legal Studies (CALS) welcomes yesterday’s judgment from the Supreme Court of Appeal upholding an appeal against Loyiso Coko and finding him guilty of rape. CALS represented the Institute for Strategic Litigation in Africa (ISLA) as a friend of the court in this matter, which raised important issues around how courts respond to cases of intimate partner violence.

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 in pain 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 rape myths to support the accused’s interpretations, such as the fact that he and the complainant had engaged in other forms of intimacy including kissing and oral sex.

The Court’s order subsequently prompted public outrage and went on appeal to the Supreme Court of Appeal in November 2023. Several institutions, including the Women’s Legal Centre and the Commission for Gender Equality, 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), presented the Court with information on what international human rights norms require of governments in responding to intimate partner violence.

The Supreme Court of Appeal yesterday handed down judgment in the matter, upholding the appeal against Mr Coko and reinstating his guilty verdict. The finding by Deputy Judge President Petse goes to some trouble to unpack how rape is to be treated in our law and how consent for certain sexual acts does not equate to consent to all sexual acts – even in the context of intimate relationships. As the Court explicitly found, “Consent to ‘foreplay’ does not constitute consent to ‘an act of penetration’”. In addition, the Court ruled that it must be stressed that just because the complainant was in a relationship with the accused “in no way means that consent by one party to a specific form of sexual act should be taken to be a licence to every other sexual act”.

“We are gratified that the Court found our arguments around intimate partner violence useful,” says Sheena Swemmer, head of Gender Justice at CALS. “The High Court’s judgment has rightfully been set aside and with it a precedent which could have had devastating consequences for victims and survivors of gender-based violence trying to seek justice. We now have an order which makes it clear that consent to kissing does not equal consent to sex.”

CALS was represented in the matter by advocate Loyiso Makapela.

Read the judgment from the Supreme Court of Appeal here.

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