ISLA Conversation 2021 S v Coko: The State’s Failure To Act With Due Diligence To Protect Women From Violence WHEN: 30 November 2021 TIME: 17h00 to 19h00 A high court in South Africa presided over by Acting Judge Ngcukaitobi overturned a rape conviction in what is possibly the worst judgement on sexual violence South Africa has seen in a long time. The perpetrator and the victim were in a relationship prior to the rape where they had a verbal agreement that they would not be having penetrative sex. They had previously spent nights together where these boundaries were respected. On the night of the rape, the victim had expressly stated that she did not want to have penetrative sex and the perpetrator had promised her that it was not his intention to do so. The two had consensually engaged in kissing and oral sex. After which the perpetrator, without the consent of the victim, proceeded to insert his penis into her vagina and rape her. She asked him to stop, but he continued and whispered repeatedly in her ear that he was sorry. The victim ended the relationship after the night and after failing to forget the incident resulting in severe mental anguish, she eventually went and opened a police case. The perpetrator was found guilty in the court of first instance and sentenced to seven years imprisonment. The reasoning for the guilty verdict centered around the supposed virtue of the victim, her virginity and only briefly on the fact that she did not explicitly give consent for penetrative sex as a human being who has the right to her bodily autonomy. On appeal, Ngcukaitobi found that the conduct of the victim had reasonably led the perpetrator to believe that there was tacit consent, despite her previous clear objections. The court found that because she had agreed to other sexual acts, she effectively had agreed to the sexual acts that followed. In doing so the court focused on what the perpetrator believed instead of what the victim stated. The appeal court overturned the conviction and the perpetrator has since been released. What is wrong with this judgement? The two judgements, despite the court of first instance finding the perpetrator guilty, are both deeply problematic. - It propagates rape myths and stereotypes such as what constitutes ‘real rape’, who is the right complainant, how the right rape victim behaves before, during and after rape, and how good girls should behave to avoid being raped. It legitimises the idea that consenting to some sexual acts means consent for all sexual acts, the notion of ‘irrevocable consent’ and that if a woman agrees to kissing and oral sex she has consented to everything, including penetrative sex even where she had expressly said no to that. These myths put an unfair burden on the victims to avoid being raped instead of on perpetrators to not rape, and on the state to protect women from violence. - It fails to recognise how consent plays out in the context of unequal power dynamics: Despite significant evidence from the victim that she felt powerless to act, the court disregards the dynamics of power involved in patriarchal assumptions of tacit consent. The court disregards the victims right to sexual and bodily autonomy which includes affirmative consent that is voluntary, conscious, active. Instead the court has a subjective belief in the perpetrator that he believed consent to be present, even though it is an agreed fact among parties that she said no to penetrative sex. The court fails to recognise that in sexual violence cases unequal gendered power dynamics should be considered. Instead, the court relies on formal equality to make the point that the victim and the perpetrator are of the same age and that makes them ‘equal’. The judgement emphasises that if she was not consenting she should have left. There is established jurisprudence that affirms that lack of force or resistance does not mean consent to sexual activity. - The judgement is gender blind in its reasoning and misogynistic: by wilfully disregarding established legal human rights standards on state responsibility to protect women from (sexual) violence, it intentionally ignores national and international jurisprudence that have ruled against courts reproducing sexist stereotypes and playing down gender-based violence. It not only ignores what a survivor centered response should be, it fails to integrate an impartial reading of the facts. Judicial bias towards the perpetrator is evident, even where the perpetrator admitted facts that implicated him. In this way the court fails to balance the accused person’s right to fair trial and the complainant’s right to be free from violence. - Both courts rely on discriminatory and outdated legal standards: In court a quo the magistrate and prosecutor centered legal reasoning for the prosecution on a woman’s supposed “virtue”, not her basic right to be protected from violence regardless of her sexual history. This standard has been long found to be inconsistent with human rights. The court of appeal erred in its finding that consent in rape cases can be gained through conduct that is contradictory to what one has verbally expressed. This feeds into the idea that “she asked for it”. Courts have also established that there is no external conduct that can be viewed as giving consent apart from one actually giving consent. - It Interferes with material facts by re-interpreting facts and what those facts mean on appeal: Established legal practice limits the circumstances in which an appeal judge may interfere with facts that were accepted by the lower court. The acting Judge here placed strange emphasis on the sequence of events, the exact time of when the complainant informed the perpetrator that she did not want penetrative sex. He reinterpreted facts differently from what the lower court concluded. This timing of when the complainant stated she did not want sex is important to the flawed reasoning of the Judge because it allowed him to then claim she may have said no at the beginning but she acted like she meant yes later. Despite the perpetrator conceding to facts, the acting judge took it upon himself to reinterpret those facts. He focused on criticising the lower court’s legal reasoning and used that as a basis for his judgement, refusing to exercise legal duty to interpret the law purposively. What will the ISLA conversation 2021 be about ? ● How is this judgement an obstacle to providing effective protection of the rights of victims of gender-based violence? ● What does it mean to close the legislative gap for the problematic reasoning that rapists can use as a defence, the idea that ‘he thought he had consent’? Unpacking the patriarchal roots of tacit consent in rape. ● The duty of judicial officers to interpret the law in a way that promotes and fulfils the right of women to be free from violence? ● What is the obligation of States (executive, legislature, and judiciary) to act with due diligence in preventing (reoccurrence of) violence, protecting women from violence, providing adequate remedies for victims, prosecuting and punishing perpetrators of violence against women? ● Next steps: how do we move from here to challenge the chilling effect produced by this judgement that is intended to discourage women from seeking justice through the courts?