SCA’s ruling on sexual consent welcomed as a relief

The Centre for Applied Legal Studies (CALS) at Wits and the Commission for Gender Equality have welcomed a Supreme Court of Appeal ruling, which confirmed that foreplay doesn’t constitute sexual consent.

The organisation says this will be a relief for gender-based violence survivors who, over the years, have had to contend with the lack of awareness, and discriminatory attitudes held by police officers and prosecutors, resulting in their cases rarely proceeding to trial.

The court’s decision reinstated Loyiso Coko’s rape conviction, who was found guilty of the crime in 2020, but was later acquitted after a high court ruled that his girlfriend’s participation in foreplay implied consent to sex.

The SCA, however, disagreed, emphasising the importance of explicit communication of consent.

Coko may face imprisonment unless his appeal is successful within 20 days.

He raped his then 21-year-old girlfriend who had repeatedly expressed her desire to preserve her virginity and not engage in penetrative intercourse.

The Strategic Litigation in Africa, represented by the Centre for Applied Studies and the Commission for Gender Equality were among the organisations that joined the matter as friends of the court.

The organisations say the case grabbed their attention as it raised the important issue of how the South African courts still fail to adjudicate cases of intimate partner violence in a way that aligns with the country’s Constitution.

“Although rape committed by women’s husbands, boyfriends or ex-partners the most common form of sexual violence, these cases seldom reach the courts,” the centre said last year when announcing its decision to intervene in the case.

The Head of Gender Justice at CALS, Sheena Swemmer, believes yesterday’s Supreme Court of Appeal’s decision sets a significant legal precedent on the interpretation of consent in sexual assault cases.

“The High Court judgment has rightfully been set aside and with it a precedent which could have had devastating consequences for victims and survivors of gender-based violence trying to seek justice,” she says.

“We have now an order which clearly states that consent to kissing does not equal consent to sex,” she adds.

The Commission for Gender Equality’s Chairperson, Advocate Nthabiseng Sepanya-Mogale, says: “A 21-year-old woman was raped, and the Commission was disturbed by sentiments expressed in the High Court’s judgment implying that she was an active participant in her own rape due to her lack of objection.”

“We hope that the SCA judgment will provide clarity on the matter of consent in respect of sexual intercourse. We are equally relieved that the SCA has set the High Court ruling aside and we are looking forward to the consideration of the High Court on whether the sentence of 7 years imprisonment that was imposed by the Reginal Court is appropriate in the matter,” Sepanya-Mogale adds.

The Commission believes the SCA’s decision reaffirms the rights of women and children to dignity and physical integrity.

The full judgment is below.

Judgement on rape