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Criticism levelled against judges following their ruling on sexual consent is misinformed and proceeds from the incorrect premise that the version of the complainant constituted the factual basis for the judgment, or ought to have done so, writes Craig Watt-Pringle.
On 8 October 2021, judgment in the matter of Coko v The State was handed down in the Eastern Cape High Court by Acting Judge Tembeka Ngcukaitobi and Judge Nyameko Gqamana.
The appellant, originally convicted of raping the complainant on 1 July 2018 and sentenced to seven years imprisonment by the Regional Court, was acquitted on appeal by the two judges, based on a finding that the State had failed to discharge the onus resting upon it to prove the appellant's guilt beyond a reasonable doubt.
The burden of proof in criminal cases is not easy to discharge, because it is based on the notion that it is better for some of the guilty to go free, than for one innocent person to face criminal conviction and sanction. It is the standard used in all democratic countries that value human rights and is uncontroversial in this country. It is a value fiercely defended by human rights lawyers and cannot be diluted simply because the nature of the alleged crime is particularly repugnant, or prevalent.
Very briefly summarised from the judgment, the facts are that the complainant and the appellant, both students aged 23 at the time, had been dating for a short while when they agreed to spend the night at the residence of the appellant. The complainant made it clear that she did not want to have penetrative sex with the appellant.
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After watching a video on the appellant's bed, they took to the bed, where they kissed and cuddled, the appellant removed the complainant's pyjama pants and performed oral sex on her, without objection either at the time or at any time thereafter. That much is common cause.
The appellant testified that although he had initially understood the complainant to say that she did not want to have full penetrative sex, he took her acquiescence in oral sex, as well as her "body language" as tacit consent for him to take matters further, which he did.
Precisely how the complainant reacted to his escalation of the encounter to penetrative sex is a matter on which they each gave a different account.
It fell to the Court to determine whether the appellant's account was reasonably possibly true. This is the legal test which the Court was obliged to apply.
I do not intend to express any opinion on whether the judgment is correct. There may be a further appeal and I have read the judgment, but not the appeal record.
My purpose is rather to examine whether the criticism levelled at the judgment is warranted.
The criticism to which I refer does not deal with the factual accuracy of the Court's findings, but with the approach to the facts as found by the Court, and the supposed legal precedent set by the judgment.
Following publication of the judgment, the judges have faced a barrage of criticism, most of it proceeding from the premise that the judgment creates the unfortunate precedent that, once a person has willingly engaged in one kind of sexual activity (foreplay, or oral sex), they may be taken by the other party to have consented to penetrative sexual intercourse.
Criticism against Ngcukaitobi
Acting Judge Ngcukaitobi has endured most of the criticism, both because he penned the judgment and because he has a high profile among members of the Bar and the public for his competence and enviable record as a human rights lawyer, known to be highly sensitive inter alia to the scourge of GBV in the country.
Understandably, the public would view with skepticism any judgment which appears to lower the Bar for alleged rapists.
GBV, particularly rape, are rampant scourges in our society for which this country is notorious. The lack of accountability meted out by the criminal justice system is a justifiable source of anger and frustration.
Unfortunately, much of the criticism levelled personally against these judges are misinformed and proceeds from the incorrect premise that the version of the complainant constituted the factual basis for the judgment, or ought to have done so.
READ | Sex vs rape: Ngcukaitobi's ruling sparks outrage
On the contrary, the Court had to decide whether the appellant had provided a version which, viewed in the light of all of the evidence including that of the complainant, is reasonably possibly true. The real issue is whether the judgment deals thoroughly and carefully with that question.
Much of the public comment and journalism on this judgment is disappointingly inaccurate in its failure to grapple with the legal question which was before the Court.
If it is reasonably possibly true that the appellant believed at the time that, despite the complainant's earlier express statement that she did not intend to have sex with the appellant (and therefore did not consent to it), matters progressed in a manner which implied tacit consent, then he did not, on his version, have the requisite intention to have penetrative sex with the complainant without her consent. He would therefore lack the intention to commit a crime and must be acquitted.
The judges held that his version was reasonably possibly true. They applied the well-entrenched test for criminal liability to the facts before them. The judgment sets out the applicable legal principles and displays a careful weighing of all of the evidence summarised in the judgment in arriving at their conclusion.
It is simply incorrect to suggest, as some commentators have, that they have made new law, that once a person consents to "foreplay" they automatically consent to sex, or that having given the green light, they may not withdraw consent. The judgment makes no such findings. The conclusion is fact driven.
Misunderstood judgment
Any accused person looking to present a similar defence will have to overcome the admittedly low threshold of providing a version that is reasonably possibly true.
If true, the accused lacked the necessary mens rea, or intention, to commit the crime.
In their enthusiasm to vilify the judges, some critics have misunderstood and misrepresented the findings in the judgment.
Daily Maverick on 14 October 2021 published an opinion piece by Sheena Swemmer, head of the Gender for Justice programme at the Centre for Applied Studies, Wits University.
The points made in her relatively short piece are typical of adverse commentary made against the judges in online media and which has gone viral on social media. My critique of her piece below is an illustration of how unfair the personal attack on the judges has been. (See also the far less restrained, fallacy ridden opinion piece of Professor Omphemetse S Sibanda, Executive Dean of the Faculty of Management and Law at the University of Limpopo, published by Daily Maverick on 17 October 2021.)
Swemmer, whose sincerity I have no reason to doubt, opens her short opinion piece as follows:
"On 8 October 2021, Acting Judge Tembeka Ngcukaitobi and Judge Nyameko Gqamana handed down judgment in an appeal against a conviction of rape, in the Eastern Cape high court. The appeal was successful and the judges found that the previous sentence of seven years' incarceration for rape was "unduly harsh, ignores interests of society, and induces a sense of shock." Unfortunately, the judges seem to be wrong about the interests of society pertaining to the sentence handed down to the accused, as society's sense of shock seems now to be centred on the judges' rationale for overturning the Makhanda Regional Court's decision."(My emphasis)
Swemmer's statement that the judges found that the period of incarceration induced a sense of shock, is an obvious, rather egregious error. In fact, the opening two paragraphs of the judgment read:
"1. On 8 September 2020, the Appellant was convicted on one count of rape at the Regional Court of Grahamstown. He was sentenced to 7 years imprisonment. The Regional Court refused him leave to appeal, but this Court granted leave to appeal on both conviction and sentence. He is presently out on bail, pending the outcome of this appeal.
2. The Appellant has appealed against the conviction and sentence. He submits that the State failed to prove beyond reasonable doubt the elements of the crime of rape and in any event the sentence of 7 years is unduly harsh, ignores interests of society, and induces a sense of shock. The State disputes this and counters that the Appellant was correctly convicted and the sentence is appropriate." (My emphasis)
A reading of the judgment makes it clear that the Court never endorsed the appellant's submission that even if he was guilty, his sentence induces a sense of shock. The Court overturned the conviction and so there was no need to deal with the severity of the sentence.
In other words, Swemmer neatly converted the appellant's broad submission on sentence to a finding of the Court, and then used her own error to suggest that the views of the judges on the severity of rape as a crime is out of step with the views of society, a central theme in her opinion piece. Swemmer then summarised the facts as follows:
"The case dealt with a young woman who reported her former partner ignored her explicit wishes not to engage in penetrative sexual intercourse and raped her. The accused admitted in evidence before the court that "sexual intercourse was not part of the plans for the evening" and that the woman has previously discussed with him that she did not feel ready for intercourse. Yet, he admitted to the court that due to the "foreplay and the body language of the Complainant," he believed that "she was a willing participant."
The judges set out the various times the victim both tacitly and actively said no, such as when the accused took off her pants and she said "no, I don't want to have sex with you" and when he penetrated her and she said that she was crying and trying to push him off of her. Yet "he wouldn't stop and he just carried on shoving it in and out and kept saying sorry in my ear".
Despite the evidence that the victim did not consent to intercourse with the accused and consistently objected to his advances, the judges instead found that during the alleged rape "the Complainant was an equally active participant, she was not merely passive" and based this inference on the fact that the victim "kissed the Appellant back" and had no objection to him taking off her clothes. The judges make another assertion that there was no rape as "no threats or force were used to coerce the Complainant."
The second and third paragraphs quoted above do not summarise the factual findings of the Court. They contain a hybrid of the appellant's and the complainant's versions. Material parts of this rendition do not accord with the appellant's version.
In setting out this account of the "facts", Swemmer impliedly presents all of it as fact proven against the appellant beyond a reasonable doubt. Had these been the Court's findings the judgment would clearly have taken a different course. In fact, the relevant part of the judgment reads as follows:
"91. It was the evidence of the Appellant that throughout the encounter, the Complainant was an equally active participant, she was not merely passive – she kissed the Appellant 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 the Complainant says she objected and said the penetration was hurting. The Appellant's evidence was that when the Complainant said the penetration was hurting, he "would stop and then continue". This aspect was not taken up in cross examination, nor was it weighed in the assessment of the probabilities by the Magistrate. It was not the evidence that the Appellant simply continued with the intercourse in disregard of the wishes of the Complainant, as held by the Magistrate. In these circumstances, I cannot uphold the findings of fact of the Magistrate which are unjustified when one has regard to the record. I cannot hold that the state proved that the version of the Appellant that he genuinely believed there was at least tacit consent was false beyond reasonable doubt."
The Court did not make a credibility finding against either the appellant or the complainant but assessed whether the evidence of the appellant constituted a version that was reasonably possibly true.
If so, the Court had to decide whether the State had proven beyond a reasonable doubt that the appellant had the requisite intention to commit a crime. That is precisely what the law as it stands required the judges to do.
On the back of these factually inaccurate renditions of the findings of the Court, Swemmer expresses the following view:
"Two issues emerge from this problematic judgment. They both centre on South Africa's prevalence of rape culture and thus rape stereotypes. The first is that a woman must be threatened or forced in order for a rape to be considered as "legitimate". This is explicitly absent from our laws on sexual offences, the Criminal Law (Sexual Offences and Related Matters) Act."
The opinion piece suggests that the quoted finding that the complainant was neither forced nor threatened, was pivotal to the success of the appeal. In other words, that where the State fails to prove that the complainant was either threatened or forced, acquittal should follow according to the precedent set in the judgment. This is simply not so. The relevant paragraph (para 94) deals with common cause facts as follows:
"The correct sequence of the evidence, as given by the Complainant, is that she mentioned that she closed her legs and mentioned that she not want to have sex with the Appellant as he was undressing her. What happened next was that there was no indication expressly or otherwise of any lack of consent to being undressed. After she was being undressed, they continued kissing. Then the Appellant took off his clothes. No force or threats were used to coerce the Complainant (who is the same age as the Appellant). After he had taken his clothes off, he returned to place his head in between her thighs, again with no force. He then performed oral sex on her, which she testified she had no objection to. On the complainant's version, there was no manifestation of any refusal of consent between the kissing, the oral sex and the penetration. The evidence was that it was only after the penetration that the Complainant experienced pain and told the Appellant to stop as he was hurting her. The Appellant accepted this but said he would stop and then continue."
The fact that: "No force or threats were used to coerce the Complainant (who is the same age as the Appellant)" is clearly relevant to the Court's overall consideration of the evidence and to the only factual question in the matter: is the appellant's version reasonably possibly true? The absence of force or threats is consistent with the appellant's version that he acted on perceived tacit consent but does not alone prove the appellant's version.
In other words, the judgment does not regard the absence of force or threats as proof of tacit consent. It merely considered it to be relevant evidence, which clearly it is.
State failed in this case
The judgment considers in great detail whether in view of the complainant's initial clearly stated position that she did not consent to sex, the appellant's version of subsequent developments and that he understood the complainant tacitly to have consented, was reasonably possibly true.
The Court concluded that the State had failed to discharge the onus of proving that it was not.
Thus the opinion piece again, somewhat less obviously, unfairly presents the Court's findings in order to subject the judgment to criticism which is not founded on the true rationale for the judgment.
Precisely the same approach, equally erroneous, is used by Swemmer in making the second point:
"The second issue that emerges from this judgment is the idea that if one consents to one type of sexual encounter, then one consents to everything. This is not part of our law either. The act establishes instead that there can be a lack of consent where someone agrees to one form of sexual act and then another, which they did not consent to, occurs. There is no basis in our law to support the judges' arguments that consenting to kissing or having your clothes removed necessarily implies consent to intercourse."
The judgment is not authority for the proposition for which it is castigated. The Court simply did not hold that "if one consents to one type of sexual encounter, then one consents to everything."
At the risk of undue repetition, the Court considered whether, all evidence considered, the State had proven guilt beyond a reasonable doubt, that the appellant did not believe that there was tacit consent.
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The Court did not have to find that the complainant had changed her mind and tacitly agreed to have sex.
The Court had to decide whether the appellant's version that he read the situation thus is reasonably possibly true.
It is an unfortunate fact that in rape cases, there are typically only two witnesses, the accused, and the complainant.
Absent relevant forensic evidence, it is the complainant's word against that of the accused, with this important difference: the State still has to prove the complainant's version beyond a reasonable doubt.
The facts of this case are such that the forensic evidence, gathered long after the incident, was unhelpful in establishing the appellant's guilt.
Another accused, in a similar cause, would have his version subjected to the same scrutiny.
No new law in this case
The facts would determine the outcome. This judgment does not purport to, nor does it, make new law on the issue of consent.
One imagines that any judge faced with a case of this nature would agonise over the result.
If the appellant was correctly convicted, he should be held accountable. Swemmer does not exaggerate the plague of GBV for which our country is notorious. However, conversely if the appellant was entitled to his acquittal, seven years in a South African prison would amount to an extremely grave infringement of his human rights.
By all means call on the NPA to appeal this judgment, or lobby for law reform if so inclined. But making personal attacks on the judges who are required to apply the facts and the law as they see it, and not to sway to the Court of public opinion on an emotive subject, places the judges under unfair pressure which is likely in some cases to lead to miscarriages of justice.
When judges are unfairly criticised, respect for the courts diminishes and with it, respect for the rule of law.
Judges speak through their judgments, they may not respond publicly to criticism and are thus "sitting ducks," regardless of how unfair the criticism may be. Judges are required to act fearlessly and impartially. They ought to be able to do so without fear of populist-fuelled personal vilification.
- Craig Watt-Pringle SC Chair of the General Counsel of the Bar of South Africa and member elect of the incoming Legal Practice Council. Watt-Pringle writes in his personal capacity.
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