by LINDSAY KELLAND
The public furore caused by advocate Tembeka Ngcukaitobi’s overturning of Loyiso Coko’s rape conviction may have abated, but the decision remains controversial. Indeed, feminist and legal organisations, activists, and scholars have an ongoing interest in the case and, one might argue, a duty to critically examine what the judgment tacitly communicates (pun intended) to would-be-rapists in South Africa—‘rape with impunity; the law will protect you.’
In the wake of this ruling—and given this duty—a determined coalition of like-minded organisations has formed to challenge it. One of the Eugenia Nothemba Gxowa Foundation’s programmatic focal areas is supporting survivors of gender-based violence. We have therefore joined ranks with Tshwaranang Legal Advocacy Centre to End Violence Against Women, Oxfam, the Initiative for Strategic Litigation in Africa, Women’s Legal Centre, Sonke Gender Justice, and the Centre for Applied Legal Studies at Wits. The coalition has different working groups—legal, advocacy, research, and communication. As a member of the research group, I have found myself asking the following questions: Did Ngcukaitobi misapply the law, or did he apply it soundly? If so, has this case revealed the antiquated nature of our rape law—that it still requires reform? In seeking to answer these questions, I have found the conversation between South African advocate Ben Winks and political analyst Eusebius McKaiser striking and illuminating.
According to Winks, our law still, regrettably, distinguishes between the lawful (or objective) and the criminal (or subjective) and maintains that the prosecution must show an act to be both unlawful and criminal to establish a guilty conviction. In other words, an action must fulfill both criteria—the accused must both have actually committed and have intended to commit the crime they are accused of to be found guilty beyond a reasonable doubt. An act may be deemed unlawful—from an objective point of view of what was the case—while nevertheless not being deemed criminal—from the subjective point of view of what the defendant (or, in this case, the appellant) believed was the case. And when this is so, the judge cannot deliver a guilty verdict. In this instance, Winks suggests that while Ngcukaitobi may have deemed Coko’s behaviour unlawful, he did not deem it criminal; the first criterion was satisfied but not the second. And it was sufficient for Ngcukaitobi, Winks suggests, that Coko believed he was having consensual sex and not committing rape to overturn the guilty verdict delivered by the Makhanda regional court.
But something about this seems wrong. Winks explains that our rape law enables those with the most backward beliefs about sex and consent to get away with rape. In conversation with McKaiser, and in defending the need for rape law reform, Winks argues that:
“the problem with our law is that […] [m]y own backwards beliefs about consent, and about the way women should behave if they are not consenting is my get-out-of-jail-free-card. And the more backward my thinking is, the more likely I am to get acquitted… it’s perverse. How that can be the law is unconscionable.”
In an article published the same year, ‘SA law needs an overhaul to protect rape survivors,’ Winks elaborates. He claims that:
This means that a purely subjective belief in consent is a complete defence against a charge of rape, which succeeded in the Coko case. Thus, even though our law no longer recognises rape myths—such as that a woman is only raped if she fights or shouts, kicks or screams—it allows a man who believes rape myths to escape criminal conviction. Most obscenely, the less progressive the man’s views about consent, the more likely he is to be acquitted.”
According to Winks, Ngcukaitobi’s application of the law correctly while lamentably hangs on Coko’s claim that he believed in the presence of tacit consent to penetrative sex, given his (then) girlfriends’ consent to kissing and oral sex, and despite her explicit refusal communicated in earlier negotiations between the couple to engage in penetrative sex. Ngcukaitobi’s ruling, for Winks, acknowledges the unlawful nature of Coko’s actions but maintains that it was, nevertheless, not a criminal act given Coko’s “possibly reasonably true” (while nevertheless still improbable) belief that his partner had changed her mind subsequent to their conversation given what then unfolded between them sexually. In my opinion, his ruling entails that regardless of what is explicitly agreed upon by two (or more) parties to a sexual encounter, so-called ‘foreplay’ (to the real deal [?]) is sufficient evidence for a reasonable belief in (at least’ tacit’) consent to penetrative sex. I agree with Winks—it is perverse.
Although McKaiser argues that Ngcukaitobi did misapply the law, thus disagreeing with Winks’ in his assessment of the application of the law in this case—he endorses both Winks’ concerns regarding the subjective criterion and his call to reform rape law. In McKaiser’s words:
“This case errs by setting a precedent of defining subjective as being whatever the whimsical desire of a person at a particular point in time is. Ngcukaitobi needed to drill down into the space between the whimsical and objectivity.”
He goes on to argue that Ngcukaitobi’s verdict:
underscores the sense of entitlement men have over the bodies of women, and the disregard we have for their agency. [It] also treats men as children who should not be expected to act like adults. […] and does so at the expense of women’s safety, bodily and psychological integrity, and dignity. It is catastrophic in its effect in multiple ways that only apologists for rape culture can underestimate.”
In light of the conversation between Winks and McKaiser, the question of whether or not Ngcukaitobi misapplied the law and the appeal of his ruling by the NPA should be considered crucially important legal moments in the history and development of rape law in South Africa. That this is so is underlined if we turn to public opinion on the matter, particularly those expressed by South African men. Let me briefly drive this point home. If Winks and McKaiser are correct—if our law as it stands gives those with the least progressive views about sex and consent a get-out-of-jail-free-card when it comes to rape—and public opinion is expressive of particularly regressive views in this regard, then the urgency with which we need to reform our rape law is underscored. Bearing this in mind, consider the following handful of statements publicly posted and endorsed by many on social media:
“It’s physiologically difficult for a man to play sex and then not go all the way, why is virgin girl playing around with loaded guns and not maybe get a toy instead. […] I have never seen an impala saying to a hungry lion let’s play the chasing game but do not bite me”.
“You have heard it said ‘No is No.’ Well, a No or Stop must be in line with your actions. Consent is both explicit and tacit. Consent can be explicitly denied while tacitly given.”
“The minute you put a man into a position where he is intimate with you his mind ‘dies’ […] until he ejaculates. It’s how God created us. Now why would a woman allow to be naked and even do oral sex with a man she’s not ready to sleep with?”
“you can’t play naked with a man […] You can’t go to a man’s place and take your clothes off and lay naked next to him the whole night and say you don’t want sex.”
“When you play with a man’s penis expect in most cases a diplomatic demand for penetration […] if you’re not ready or don’t want to get burnt don’t play with fire.”
Following social media threads, it seems clear to me that we need to go back to the legal drawing board, so to speak, to revisit the criteria by which we secure a rape conviction. If we fail to do so—if we fail to see this moment for the opportunity that it is—then our rape law will continue to be, as Winks puts it, “outdated, unjust and unduly protective of male sexual entitlement” (2021) —particularly entitlement of the sort expressed above.
- Dr Lindsay Kelland is secretary of the Eugenia Nothemba Gxowa Foundation, and a feminist philosopher based in the Allan Gray Centre for Leadership Ethics at Rhodes University. This article was first published in the February 2023 edition of Isanqa Newsletter, published by the Eugenia Nothemba Gxowa Foundation.