Win for Women in our Courts

I have never been sexually assaulted, and I am grateful to have narrowly escaped an attempt. I cannot imagine the trauma that survivors have to endure. So, I can only talk as a lawyer who knows how the recent Supreme Court of appeal judgement in Director of Public Prosecutions, Eastern Cape, Makhanda v Coko shaped our legal landscape. 

When Sis’Mantoa asked me to write this article, I had to remember that I was writing for ordinary women who need to understand the law on this all-important subject of Gender-Based Violence (GBV) that is often discussed but its boundaries or limits in situations where there may have been consent to other forms of intimate acts such as foreplay or when consent is later withdrawn, have been misinterpreted.

In 2018, a young woman seeking love, innocently entered what she believed was a safe and a secure environment. As the facts are revealed, she was in a relationship with a young man and on that fateful night they cuddled, watched a movie, and moved on to more intimate activities. So far, no harm seemed to have been done.

She expressed on more than one occasion that she was interested only in “foreplay” and not in any sexual penetration. Unfortunately, on that fateful night, her virginity was taken away without her consent. 

This case has its origins in the Magistrate’s Court where charges of rape were laid against the young man from the incident on the night of July 1, 2018, in the young man’s room at Fingo Village, Makhanda.. The charge was that he unlawfully and intentionally had sex with the complainant who was 21 years old. He pleaded not guilty, saying the sex was consensual. At the end of the trial, The Magistrate ruled that rape had indeed occurred and found guilty and sentenced him to seven years in prison.

On appeal before the High Court, the Judges found that there was no rape and that her body language was enough to prove tacit consent essentially. The main question in the appeal was whether the State had proved its case, specifically if sex happened without her consent, beyond reasonable doubt. 

This is where it gets good, notwithstanding the High Court Judgment and bearing in mind the state’s tenacity to appeal the judgement: the Supreme Court of Appeal made clear, amongst others, that: 

-Foreplay does not equal sex.  

-Consent to sexual acts can be withdrawn at any time. 

-That absence of resistance does not necessarily constitute consent to a sexual act. 

Let me conclude with a quote directly from the judgement, which I believe will bring much-needed healing to anyone who has ever been a victim to this scourge.

Rape is a very serious offence, constituting as it does a humiliating, degrading and brutal invasion of the privacy, the dignity and the person of the victim. The rights to dignity, to privacy, and the integrity of every person are basic to the ethos of the Constitution and to any defensible civilization. Women in this country are entitled to the protection of these rights. They have a legitimate claim to walk peacefully on the streets, to enjoy their shopping and their entertainment, to go and come from work, and to enjoy the peace and tranquility of their homes without the fear, the apprehension and the insecurity which constantly diminishes the quality and enjoyment of their lives.

 

This case for me demonstrates that although at times the wheels of justice may seem to turn slowly, in the end, if victims persevere they will turn towards the justice they want to see on the ground.