The Soul City Institute for Social Justice is appalled by the overturning by Acting Judge Tembeka Ngcukaitobi and Judge Nyameko Gqamana of the seven-year prison sentence originally handed down to Loyiso Coko for raping his partner. The judges found that the original findings of the Makhanda Regional Court were "erroneous" and that the previous sentence was “unduly harsh, ignores the interests of society, and induces a sense of shock”.
It is their judgement however that induces a sense of shock. The basis of their judgement appears to be that Mr Coko’s partner consented to penetrative sex as she had no problem disrobing and kissing him and seeing his erect penis. It is almost unbelievable that any judge in the 21st century can actually hold these views. It is reminiscent of the former President Jacob Zuma’s belief, expressed during his rape trial, that because a woman appeared to him to be aroused, he needed to “help her finish things off”. These attitudes are abhorrent expressions of patriarchy and contribute to the rape culture that prevails in our society and ultimately enables rape to happen with impunity. How, therefore, was the prior judgement “ignoring the interests of society”? On the contrary, it was an enlightened judgement that should be benchmarked as best practice.
The National Prosecuting Authority is on record as saying that there was a prior agreement between the couple to not have penetrative sex. In fact, the woman actually negotiated very clearly her willingness to have oral sex but not penetrative sex. But while this adds an additional layer to his violation and should have reinforced to him that her willingness to have oral sex was not giving him permission for anything else, it actually bears no consequence. Even if there was no prior agreement, the law in South Africa allows for a person to refuse penetrative sex at any stage in an engagement. As Lawyers for Human Rights succinctly puts it: “consent to one sexual act can never imply consent to all sexual acts”.
In January, the Soul City Institute disseminated a graphic on rightfully calling stealthing – the non-consensual removal of a condom during sex – rape. This solicited a myriad of reactions across all social media platforms, particularly from men, who mostly did not understand or care to understand how this could be rape. This shows that there is still work to be done.
As an organisation committed to the rights and wellbeing of young women and girls. We continuously advise young women of their right to bodily autonomy, that a woman is entitled to say no at any stage, and they have a right for that position to be respected. And yet, this is what they can expect to face should they take legal action to protect this very right.
This judgement is a slap on the face to rape survivors across South Africa and blatantly uses outdated ideas of how and what rapes looks like – it’s not always stereotypically “violent” as the judgement states. The dangerous definitions of consent expressed by the judges are a painful reminder that we still have a long way to go in our society as well as in our judicial systems that perpetually fails survivors. Additionally, a judgment like this being handed down by someone who has been described as one of the country’s “finest legal minds” and enjoys a prominent position in society even outside of legal circles is a further disappointment.
We call on the National Prosecuting Authority to appeal this ruling. We need to call out this judgement as “backward”, an affront to society at large and part of the deep and systemic patriarchy that results in South Africa having one of the highest rape statistics across the globe.
