Judgment raises questions about whether foreplay implies consent to having sex
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Johannesburg – A new judgment looks set to raise 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 has 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.
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.
It became common cause that 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.
The student raised it with Coko some seven days after the incident via texts that she believed he had raped her. She told him that he penetrated her despite promising not to.
“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 was weighing 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.”
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 could not find that it clicked to Coko that 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.