SCA ruling on sexual consent welcomed by gender organisation

The ruling will see an Eastern Cape paramedic, who had his rape conviction overturned, go back to prison.

The Supreme Court of Appeal this week upheld the appeal application by the state against the earlier judgement by acting judge Tembeka Ngcukaitobi and Judge Nyameka Gqamana.

Twenty-eight-year-old Loyiso Coko was sentenced to seven years imprisonment for raping his girlfriend, which was overturned on appeal.

The state has now successfully appealed that judgment, which sought to get clarity on the issue of consent.

The CGE joined the appeal case as amicus curiae. 

Coko was accused of raping a 21-year-old woman, TS, who had repeatedly expressed her desire to preserve her virginity and not engage in penetrative intercourse. 

The court found that a person must give consent for each specific sexual act.

The law firm Norton Rose Fulbright South Africa represented the Center for Gender Equality in court.

The firm's Laura Macfarlane said the judgment has made it clear that silence or a lack of opposition is not an automatic consent to sex.

“The four principles are agreement, communication, specificity, and ongoing consent. So, if you say yes to a drink, that is the only thing you are saying yes to. If you go forward and there might be some foreplay, the court has indicated that that, too, would be consent only for that particular act and not for any subsequent acts.

“In order for it to be consent, she has to know about it, and it can’t be a one-sided agreement. She is also within her right to withdraw her consent at any point.

“We are out of touch, and there is a big problem of sexual violence in our country, as we all know from the statistics”, said Macfarlane.