Many would think that the concept of consent is clear, but courts are still having to deal with deciding what it is.
This issue has recently come up in the Supreme Court of Appeal after a man was convicted and sentenced for rape. He then took the matter up for appeal and his conviction and sentence were set aside.
The National Prosecuting Authority felt so strongly about the matter that they appealed the setting aside.
The matter dates back to 2018.
Loyiso Coko and the victim, TS, were in a romantic relationship and she was a virgin. She communicated that she was not ready for penetrative sexual encounters.
Loyiso was employed as driver with Gardmed Ambulance Service. TS was still a student at a local university and in her early twenties.
On 1 July 2018 they met by chance and agreed that TS would visit the respondent at his apartment in the evening and spend the night with him.
Even during this encounter, TS made plain that her acceptance of the invitation to visit Loyiso at his apartment was no signification that they would engage in sexual intercourse.
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For his part, Loyiso unequivocally assured TS that he had no problem with her standpoint.
When she arrived, she was wearing long pyjamas with no underwear, and they were sitting on the bed watching a movie. They kissed and Loyiso tried to take off her pyjama pants and TS closed her legs.
At this stage, Loyiso once again assured her that he had no intensions of having sexual intercourse with her and she agreed. He then proceeded to perform oral sex on her.
TS told the court that when Loyiso performed the oral sex, she was “taken aback and felt uncomfortable when the respondent performed oral sex on her, she did not object to this”.
While performing the oral sex, Loyiso also took his pants off.
TS testified that when Loyiso stopped performing oral sex and, instead, climbed on top of her as she laid on her back on the bed and started kissing her. She then dropped her guard and relaxed. The next thing, she felt a sharp pain in her vagina and realised that the respondent was penetrating her, vaginally, with his penis.
“When Loyiso inserted his penis into her vagina, TS froze and started crying,” the court heard.
“He just carried on shoving it in and out and saying sorry in my ear.”
Loyiso told the court that after the prolonged oral sex and her relaxing, he understood it to have been foreplay and that she consented.
The regional court heard that it was proven beyond reasonable doubt that Loyiso in truth failed to restrain himself during the so-called heat of his passion and penetrated TS well aware that she had not consented to his penetrative sexual act.
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Loyiso’s high court appealed succeeded because the court accepted the evidence that throughout the encounter, TS was an equally active participant, she was not merely passive – she kissed Loyiso back, she held him, she had no problem with the removal of her clothes, she watched him take off his clothes without raising an objection, she knew he was erect, she did not object to the oral sex.
“The only area where there was a dispute was after the penetration. It is in this area where TS says she objected and said the penetration was hurting.”
The NPA took the matter to the SCA, and court agreed with the prosecuting authority.
“The acquittal of [Loyiso] by the high court is set aside. The conviction of [Loyiso] by the regional court is reinstated. The order of the high court is set aside.
“The question of sentence is remitted to the high court for it to determine whether the sentence imposed by the regional court was appropriate.
“The Director of Public Prosecutions, Eastern Cape, Makhanda is requested to prioritise the placement of the appeal against sentence on the roll as soon as all relevant regulatory requirements have been met.
“Should [Loyiso] fail to prosecute the appeal against sentence within 20 days of the date of this order he shall forthwith report to the Makhanda Correctional Centre, Makhanda in order to serve his sentence.”
