Should kissing a man be considered tacit consent for sex?
Of course not. Pretty obvious, you’d think.
But in October 2021, the Eastern Cape High Court effectively found Loyiso Coko innocent of raping his girlfriend, overturning a previous seven-year rape conviction against him.
The reason? According to the judges, his girlfriend “was an equally active participant; she was not merely passive”. They based this on the fact that the woman “kissed” Coko back and had no objection to him taking off her clothes. This is despite the judgement acknowledging that the woman had tacitly and actively said no at various times. As you can imagine, the decision caused an uproar at the time.
Thankfully, that wrong has now been righted.
This week, the Supreme Court of Appeal said the high court made a mistake in acquitting Coko and reinstated his conviction.
More details of the incident, but please note a trigger warning:
As Daily Maverick summarises it: Coko’s girlfriend, a university student in her early twenties, was a virgin who had, more than once, told him she was not ready to engage in penetrative sex. On the day of the rape, the woman had agreed to spend the night with Coko at his apartment with the stated caveat that this did not mean she would engage in sexual intercourse.
During the evening, they engaged in foreplay, to which she consented. She told the court that Coko then raped her while she tried to push him off and told him repeatedly that he was hurting her and should stop. Coko acknowledged that the woman said that it was hurting but claimed she did not say anything else or try to push him off. The Eastern Cape judges acknowledged that she had said no.
Disappointingly, legal superstar Acting Judge Tembeka Ngcukaitobi was one of the judges who acquitted Coko. We’re glad that things have been set right… Let’s hope all our judges have now gotten the memo. No means no.
