When ‘No’ means ‘No’
- [Column] The Centre for Applied Legal Studies is challenging sexual offences legislation.
Sheena Swemmer
In 2021, the High Court in Grahamstown handed down a deeply controversial ruling in a case involving Loyiso Coko, who was accused of raping his intimate partner. Although the complainant clearly and repeatedly communicated her refusal, both before and during the sexual encounter, the High Court accepted Coko’s argument that he had genuinely believed she had consented and it acquitted him on that basis.
Mistaken consent
This decision came despite the complainant’s testimony that she cried during the incident, asked him to stop and expressed her non-consent throughout. Yet, the court held that Coko lacked the necessary intent to commit rape because he was allegedly mistaken about the presence of consent.
The High Court gave troubling reasons for why it believed the accused might have been genuinely confused about whether there was consent such as “the complainant was an equally active participant, she was not merely passive - she kissed the appellant back, she held him… she watched him take off his clothes without objecting, she knew he was erect, she did not object to the oral sex”.
Fortunately, the Supreme Court of Appeal overturned the Grahamstown High Court’s decision, stating that “the High Court found, on insubstantial grounds, that TS was an active participant” and that “her cries and groans… served as an unequivocal indication that she disapproved of the respondent's conduct. Despite this, the respondent was unfazed and continued penetrating her”.
Subjective beliefs of consent
This case illustrates a technical legal principle that imposes a significant burden on prosecutors (who bear the onus of establishing proof beyond a reasonable doubt) which can lead to failures in securing the conviction of rapists.
Claiming that you mistakenly believed that the complainant had consented to a sexual encounter is a defence in South African criminal law. This defence emerges because of the elements required for the crime of rape. The prosecution must prove that the accused acted intentionally and knowingly in committing the crime. This duty also includes proving that the accused knew that the complainant did not consent to the act. However, given that we currently include consent as an element of the crime of rape, the accused can be acquitted by raising the defence that they were mistaken in believing consent was present.
One way to change the law is to remove the existence of the mistaken belief in consent defence by doing away with consent as a definitional element of rape. This approach will be suggested to the Constitutional Court by Wits’ Centre for Applied Legal Studies (CALS) in the case of Embrace NPC v Minister of Police scheduled to be heard in the apex court later this year.
In the Embrace case, the Centre argues that due to the current framing of rape and many other sexual offences with consent as a requirement, there is an unfairly high burden on prosecutors to prove that the accused knew consent was absent and proceeded regardless. This burden then shifts to the complainant, who is ordinarily the only person who was present with the accused, to show in her testimony how much she communicated her lack of consent to the accused so he would not be mistaken about its presence.
Unfair burden of proof on victims
Most importantly, the Centre highlights how the law is inherently unequal regarding rape and other sexual offences which disproportionately affect women. Rape is one of the few sets of offences which require consent as an element of the crime rather than leaving it as a defence which the accused can rely upon.
For example, assault is defined as the unlawful and intentional act or threat of an act that impairs an individual's bodily integrity. Assault, like rape, is a violation of various rights of an individual including dignity and the right to be free from all forms of violence. Yet, in assault cases, the prosecutor does not need to prove that the accused knew there was a lack of consent. Instead, the accused raises this as a defence, and subsequently, the accused has the burden of proving there was consent.
Reforming SA’s sexual offences law
Under section 9 of the Constitution, everyone has the right to equality before the law, yet in criminal offences, which have women as the predominant victim, the prosecutors and consequently the victim have an extra burden of proof not required to be proven in other violent offences.
If successful in its argument, the Centre will positively affect change in sexual offences law to represent a fairer process for survivors.
- Dr Sheena Swemmer works at the Centre for Applied Legal Studies at Wits, where she is Head of the Gender Justice Programme. She is both a researcher and a practising human rights attorney. Her research focuses on violence against women, children, animals, and the law.
- This article first appeared in?Curiosity,?a research magazine produced by?Wits Communications?and the?Research Office.
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