The Supreme Court of Appeal will hear arguments in a case which raises important questions around how courts respond to matters of intimate partner violence, which includes whether a kiss can be construed as consent to sex.
The Supreme Court of Appeal (SCA) will hear arguments in a case which raises important questions around how courts respond to matters of intimate partner violence, which includes whether a kiss can be construed as consent to sex.
The Initiative for Strategic Litigation in Africa is represented by the Centre for Applied Legal Studies in the appeal.
In October 2021, the Eastern Cape High Court handed down judgment in an appeal by Loyiso Coko, who had been found guilty of raping his then-partner.
Although the complainant had said “no” to sexual intercourse and had cried and tried to push the accused off her, the court found that the accused had not intended to rape her, and instead had mistakenly believed that she had consented.
In making this determination, the court relied upon certain facts to support the accused’s interpretations.
This includes the fact that he and the complainant had engaged in forms of intimacy such as kissing and oral sex prior to the intercourse.
The court’s findings, which it is said essentially negated the complainant’s voice and utilised certain rape myths, subsequently prompted public outrage and is now being appealed to the SCA by the director of public prosecutions, Eastern Cape Division.
Several institutions, including the Women’s Legal Centre and the Commission for Gender Equality, have applied to join the matter as “friends of the court” to assist the court in determining this important case.
The Centre for Applied Legal Studies said the Coko v S case was critical for exposing how South African courts still fail to adjudicate cases of intimate partner violence in a way that aligns with the country’s constitutional values and with international human rights norms.
Although rape committed by women’s husbands, boyfriends or ex-partners is the most common form of sexual violence, these cases seldom reach the courts.
Survivors of intimate partner sexual violence are confronted by lack of awareness, and discriminatory attitudes held by police and prosecutors.
The result is that their cases rarely proceed to trial, the centre said.
The organisation added that when cases do reach the court, it is not uncommon that judges also fail to understand the dynamics of this form of rape.
It will argue that what society is confronted with is a high level of impunity for sexual violence that affects a large segment of women in South Africa.
The Initiative for Strategic Litigation in Africa and the Centre for Applied Legal Studies have applied to join the matter in the public interest to assist the court with information on what international human rights norms require of governments in responding to intimate partner violence.
It is imperative that not only cases involving strangers, excessive violence, and use of weapons are the ones taken seriously by the justice system.
Authorities must also diligently respond to cases with facts similar to those in the Coko case by ensuring that partners who rape are properly prosecuted and punished, the organisations said.
They feel that a human rights aligned approach requires that courts understand all forms of sexual violence, including rape by intimate partners, and that they examine cases within the context of this knowledge so that victims are not discriminated against in the court process.
“Courts must also centre the voices and experiences of victims, and avoid using rape myths and stereotypes which have the effect of diminishing victims’ experiences, and bolstering the perspectives of perpetrators,” they said.
The Initiative for Strategic Litigation in Africa said it hoped that this case will play a critical role in lessening bias against intimate partner cases within South Africa’s criminal justice system.
They also hope that it will help to foster a more victim-centred and rights-oriented response by authorities to women who report that they have been sexually victimised within the context of a relationship.
“There is no justifiable legal basis for the high court’s finding,” Sheena Swemmer, head of Gender Justice at the centre, said.
According to her, the court failed to perform a contextual analysis of consent in the case, which has resulted in a flawed judgment with dire public interest implications.
Pretoria News