Kissing does not mean consent to sex, and no remains no, the Supreme Court of Appeal (SCA) ruled in a groundbreaking rape verdict.
The court found that even in circumstances where consent has been given to a specific sexual act, it may also be withdrawn during the sexual act.
This case raised important questions around how courts respond to matters of intimate partner violence.
In October 2021, the Eastern Cape High Court acquitted Loyiso Coko, who had earlier been found guilty of raping his then-partner by the regional court. He was sentenced to seven years imprisonment in the lower court, but successfully turned to the high court to appeal his conviction.
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. Instead, the high court believed that she had consented to sex.
In acquitting the accused of rape, the high 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 the director of public prosecutions took the matter on appeal to the SCA.
Several institutions, including the Women’s Legal Centre and the Commission for Gender Equality, joined 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 global human rights norms require of governments in responding to intimate partner violence.
The SCA this week upheld the appeal against Coko and reinstated his guilty verdict. The court said that as Coko did not appeal against his seven-year sentence, he may appeal this. If not, he is to go to jail to serve the seven years initially meted out to him by the lower court.
Cals welcomed the unanimous judgment, written by Deputy Judge President Xola Petse, who said consent for certain sexual acts does not equate to consent to all sexual acts – even in the context of intimate relationships.
The SCA found that consent to “foreplay” does not constitute consent to “an act of penetration”. Judge Petse stressed that just because the complainant was in a relationship with the accused, it “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”.
Sheena Swemmer, head of gender justice at Cals, said the high court judgment had rightfully been set aside, as it 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,” she said.
The matter was sparked by events in 2018, when the accused and the complainant, a student in her early 20’s then, were in a love relationship.
She said she made it clear from the start that she was a virgin and that she did not want to have sex at that stage of her life. She agreed to stay over at the accused’s house one night, making it clear to him that sex was not on the cards, which he accepted.
However, she testified that after cuddling and kissing, and later oral sex, she was shocked to have found him suddenly penetrating her. He continued with this, despite her saying that he must stop and that he was hurting her.
Cape Times