No means no, or else it’s rape, court rules

• Published date: 26 April 2024
• Author: ZELDA VENTER
• Publication title: Cape Times, The (Cape Town, South Africa)

The court found that even in circumstances where consent has been given to a specific sexual act, it may also be withdrawn during the sexual act

This case raised important questions around how courts respond to matters of intimate partner violence.

In October 2021, the Eastern Cape High Court acquitted Loyiso Coko, who had earlier been found guilty of raping his then-partner by the regional court. He was sentenced to seven years imprisonment in the lower court, but successfully turned to the high court to appeal his conviction.

Although the complainant had said “no” to sexual intercourse and had cried in pain and tried to push the accused off her, the high court found that the accused had not intended to rape her. Instead, the high court believed that she had consented to sex.

In acquitting the accused of rape, the high court relied upon certain rape myths to support the accused’s interpretations, such as the fact that he and the complainant had engaged in other forms of intimacy, including kissing and oral sex.

The court’s order subsequently prompted public outrage and the director of public prosecutions took the matter on appeal to the SCA.

Several institutions, including the Women’s Legal Centre and the Commission for Gender Equality, joined the matter as friends of the court to assist the court in determining this important case. The Initiative for Strategic Litigation in Africa (ISLA), represented by the Centre for Applied Legal Studies (Cals), presented the court with information on what global human rights norms require of governments in responding to intimate partner violence.

The SCA this week upheld the appeal against Coko and reinstated his guilty verdict. The court said that as Coko did not appeal against his seven-year sentence, he may appeal this. If not, he is to go to jail to serve the...