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In a recently decided case of Coko v State  ZAECGHC 91 (delivered 8 October 2021), the Grahamstown local division of the Eastern Cape High Court (appeal Court) overturned a ruling of the Makhanda Regional Court convicting a paramedic on rape charges. With frequent occurrences of rape in South Africa, this case has attracted the ire of several interest and women’s groups in disapproval. Questions are now being asked whether the law of consent and intention in rape cases should be put on trial. Questions are also being asked whether the law in this aspect is patriarchal. Is law reform required? Is the law as it should be?
Rape is a statutory offence, provided under Section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 which defines it as,
Any person, who unlawfully and intentionally commits an act of sexual penetration with a complainant without the consent of the complainant, is guilty of the offence of rape.
From the provision the key aspect is that sexual penetration is only lawful if there is consent, and unlawful in the event there is none. The fact of whether there was consent or not is what the State had to prove beyond reasonable doubt against the Appellant, together with other elements of the offence.
Duty to Prove and Standard of Proof
Ngcukaitobi AJ, in the Appeal Court, buttressed that the duty to prove that consent was not given rested on the State, and in so doing must be proven beyond reasonable doubt as was held in the case of S v T 2005 (2) SACR 318 (E) and Sithole v State  ZASCA 85.
Viewed from the other perspective this means that an Accused ought to be acquitted if their version is reasonably possibly true as was held in the case of S v V 2000 (1) SACR 453 (SCA).
In paragraph 89 of the judgment, the appeal Court held that in the case of S v Nitito  ZASCA 198, the Supreme Court of Appeal endorsed the views of CR Snyman (a criminal law author) that a successful defence of consent must rest on the premise that it was given voluntarily and consciously, expressly or tacitly, by a person with capacity to appreciate the consequences of their decision as well as the intercourse itself.
This means that consent may either be tacit or express, but that in both instances it must be given voluntarily and consciously by a person with full capacity to appreciate its consequences.
In this case, the case of the Appellant was that the Complainant was a willing participant as evidenced from her offering no resistance to the taking off of her clothes, kissing and oral sex. However, offering no resistance should not be interpreted to mean consent, because in some instances due to intimidation one might not resist having been subdued by threats. In evidence submitted to the Court there was neither intimidation nor threats of violence, except to say the Complainant testified that she felt powerless to offer resistance to the manouvres of the Appellant. The Appellant heavily relied on the fact that the Complainant was a willing participant who even kissed him back, and her body language after the oral sex indicated she was comfortable. During the penetration itself, it is on record that complainant told the Appellant that he is hurting her, after which he stopped and then continued again. The reason was that from the body language and the fact of the complainant not having offered resistance, made him believe consent had been given, tacitly.
Securing a conviction by the State rested on them proving beyond reasonable doubt that the Complainant withheld consent at all material times, by evidence or by confession.
Decision of the Appeal Court
The appeal Court found that the State had not proven beyond reasonable doubt that the Complainant had withheld consent at all material times and overturned the decision of the Regional Court wholesale.
The Regional Court relied heavily on the fact that the Complainant was a virgin, ‘principled’ and therefore tacit consent was not enough. As the appeal Court noted, there are no different standards in consent for those who are virgins and those who are not. Secondly, the Magistrate weighed in, leading to the conviction, on the Appellant’s response to a submission where he asked the Appellant if the evidence is true, evidence that the complainant had made it clear that she does not want penetrative sex and the Appellant having assured, he proceeded anyway. This alone cannot be correct to hinge the conviction on, because the Appellant’s case had not been the absence of an assurance, but that he believed consent had been given through the conduct of the Complainant. The State had a duty to dispense with this belief and present evidence to prove beyond reasonable doubt that the complainant had at all material times tacitly or expressly or both, withheld her consent, and the Appellant knew about this.
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