The judgment of a South African Court looks set to settle questions about whether foreplay that includes extensive French kissing, undressing and engaging in oral sex constitutes tacit consent for penetrative sex.
Acting Judge Tembeka Ngcukaitobi this week ruled in favour of an appeal by Loyiso Coko, who argued that the foreplay he had with his ex-girlfriend indicated she tacitly consented to sex. Judge Nyameko Wellman Gqamana concurred with the judgment.
The saga started in 2018 after the couple had sex, after which the woman filed a rape charge against the man.
Coko was convicted last year of raping his then 23-year-old virgin girlfriend and sentenced to seven years behind bars. The woman was a Rhodes University Master’s student.
Coko turned to the Grahamstown High Court to appeal both conviction and sentence. His appeal strategy attacked the trial court’s findings that he penetrated the ex-lover while knowing fully well that she did not consent.
The complainant opened a rape case based on an encounter that happened at Coko’s room, where she had visited to spend a night. They had previously spent nights at her university accommodation room.
During the visit, they started kissing while in bed watching a movie. Coko removed the pantyless woman’s pyjamas during the smooching and performed oral sex on her.
He then penetrated her, and submitted in court in his defence that he did so because of her “body language” and no resistance from her.
Seven days after encounter, the woman sent texts to Coko saying she believed he had raped her. She told him that he penetrated her despite promising not to.
She wrote: “For the record, I didn’t want to. I wasn’t ready nor prepared to have sex that night.
“And I thought we were on the same page about that because you assured me we were not having sex before you took off my pyjamas.
“But you said one thing and did the opposite. And I have been going insane ever since.”
While the alleged rape happened on 1 July 2018, she approached the police on 2 September 2018.
She revealed in court that she eventually decided to open a case because the incident weighed on her and she suffered recurring nervous breakdowns.
She testified that she cried during the alleged rape and kept pushing and telling to stop.
“He wouldn’t stop and he just carried on shoving it in and out and kept saying sorry in my ear, ” she said.
Asked what she actually consented to when half-naked, she said she thought that they “could touch and cuddle and maybe even myself at some point I would get a chance to take off his top and touch his arms and cuddle.”
Coko denied that she tried to push him away and that he whispered in her ear that he was sorry.
In the judgment delivered last week, Judge Ngcukaitobi wrote that it could not be said that Coko knew explicitly that there was no consent.
He focused on events after the woman was undressed and until the penetration, saying there was no evidence that she resisted any of Coko’s actions.
He wrote that while the complainant told Coko she did not want to have sex with him, “what happened next was that there was no indication expressly or otherwise of any lack of consent to being undressed.
“After she was undressed, they continued kissing. Then the Appellant took off his clothes.
“No force or threats were used to coerce the Complainant (who is the same age as the Appellant),” said Judge Ngcukaitobi.
“After he had taken his clothes off, he returned to place his head in between her thighs, again with no force. He then performed oral sex on her, which she testified she had no objection to.
“On the Complainant’s version, there was no manifestation of any refusal of consent between the kissing, the oral sex and the penetration.”
Judge Ngcukaitobi concluded that he found it difficult to believe that Coko knew the foreplay was not a tacit consent.
“In these circumstances, I should ask whether the state has succeeded in proving the guilt of the Appellant beyond reasonable doubt. I am not satisfied that they did.
“I cannot hold that the State proved that the version of the Appellant that he genuinely believed there was at least tacit consent was false beyond reasonable doubt.”
He overturned the conviction and sentence. “The Appellant is found not guilty and is acquitted of the charge of rape against him,” Judge Ngcukaitobi stated.