Joy as appeals court reverses acquittal for rape six years later

A former paramedic who was acquitted of raping his girlfriend six years ago will now have to face the music after a court set aside his acquittal. 

Loyiso Coko was accused of raping his girlfriend in 2018, who had explicitly said "no" to his sexual advances after they started kissing. 

Yesterday, several organisations welcomed the judgment, saying the Supreme Court of Appeal (SCA) had set the record straight and had given clarity on what the law says about consent and rape.

Dr Sheena Swemmer from the Centre for Applied Legal Studies said the high court's reasoning in the judgment that acquitted Coko was problematic. The high court found that Coko believed the woman had consented because they engaged in other forms of intimacy.

"The decision in the high court was incredibly problematic and sent a message that individuals can get consent for one form of sexual encounter and assume that it would apply to everything. "So, it was a problem and had implications for how universities and businesses conducted disciplinary hearings into gender-based violence," she said.

Mandisa Khanyile, director of Rise Up Against Gender-Based Violence agreed, saying SA needed to have behavioral change programmes to help men understand the concept of consent.

"...that consent can be revoked at any time and that consent needs to be ongoing when it comes to sexual encounters, and I am glad that the SCA has ruled this way so that the country can understand that sexual violence does have consequences."

Acting head of legal at the Commission for Gender Equality Tsietsi Shuping said the commission assisted the court in arriving at a conclusion to promote equality and ensure that people are not violated sexually.

In his judgment, delivered on Wednesday, Justice Xola Petse said the case added to the distressingly long list of numerous cases of rape which SA courts had been inundated with for years.

"Rape is an utterly despicable, selfish and horrendous crime. It gains nothing for the perpetrator, save for fleeting gratification, and yet inflicts lasting emotional trauma and, often, physical scars on the victim," he said.

According to the judgment, the woman had visited Coko on the night of July 1 2018 in his room at Fingo vllage in Makhanda, Eastern Cape.

The woman had on occasion informed him that she was a virgin and said more than once that she was not ready to engage in sexual intercourse. Despite this, Coko proceeded to rape her. 

Petse said the woman testified that she froze and started crying and attempted to push Coko away but he did not stop. Instead, he said he understood the prolonged oral sex as some form of foreplay to the penetrative sexual intercourse.

"Logic dictates that even in circumstances where consent has been given to a specific sexual act, it may also be withdrawn during the sexual act to which the consent relates. Even on this basis, we conclude that the crime of rape was established," he said. 

Petse said the Sexual Offences Act explicitly requires that consent must be "given consciously and voluntarily, either expressly or tacitly by persons who have the mental capacity to appreciate the nature of the act consented to".

He further said consent to foreplay or oral sex will not suffice for purposes of a vaginal penetrative sexual act because foreplay and oral sex do not constitute an "act of penetration" as defined in the Sexual Offences Act.

The court sent the matter back to the high court for it to determine whether the seven-year sentence imposed by the regional court was appropriate. 

chabalalaj@sowetan.co.za