THE COKO CASE: A LOOK INTO THE LEGAL COOK. TACIT CONSENT UNDER THE SHEETS- IS IT PRACTICAL

This article will specifically look into tacit consents and its application in the bedroom. We will take a dive into the concept of tacit consent within the realm of intimacy and whether its feasible for tacit consent to be a concept that can exist in sexual relations. We will work on our understanding of this question through consideration of the Coko case where a man was convicted and sentenced on the offence of rape in the regional court(trial court). Took his conviction on appeal to the high court wherein the High court found that the trial court order was incorrect and set the man's conviction and sentence aside. Given the sensitivity of this matter and the importance of such a issue to possess legal clarity, the state took the matter to the Supreme Court of Appeal where the SCA produced a judgment in favour of the conviction and sentence of Coko for the criminal offence of Rape.

In this article we will look into the fact of the case, the reasoning and judgments of the various courts that were involved in this personal and legal issue and finally we will provide an opinion in answer to our topics questions of whether tacit consent has room in the bedroom.

INTRODUCTION:

[The sensitivity of this topic requires a disclaimer that this work of writing will explore topics which the reader may triggering. Please be advised of this fact.]

Its currently the year 2024, and we see the implications of the non evolution of courtship within the human species. Intimacy 20 years ago is a completely different space to the rules of engagement in intimacy in todays time. Gone are the days wherein women were seen as objects whose purpose was to fulfil the needs of her husbands and of the household. Women empowerment, feminism, and the advancement of values of equality, respect and dignity in our society has seen a women blosom to an evolved stated which requires the old ways to be discarded of completely. Unfortunately the male specifies of the human race has seem to not evolve its behaviour in such a manner that reflects the values of the Constitutional and democratic society which currently governs the social and legal existence of the human species.

The inherent right to dignity places a significant power to consent. A persons ability to consent is essential to a person exercise of their right to life( see my post on the Right to life) . Consent is a person's ability to exercise their free will to decide their fate. Its a tool which places the human being in a position to be in control of their destiny. The concept of consent starts to get a little murky when its being decided in sexual relationships. The grey line in consent in such relationship, in my opinion, is due to the non evolution of the understanding of sexual intimacy from men.

The case we will look at in this post will provide us with a guide on understanding consent better. It will provide us with information of the legal clarity of "non consent" as it pertains to the criminal offense of rape. And finally it will provide us with an idea of whether tacit consent is something which is practicable within the intimate setting of a sexual relationship

L.COKO V THE STATE: THE ISSUE TO BE DECIDED

Its important that we look at this not as a data wherein we extract information for the purpose of understanding a theoretical concept. Written case judgment are founded on lived realities of real people. These are real stories, and such, in engaging with case precedent, we have to always be cognisant of that fact.

The Issue: Whether the element of non consent was prevalent beyound a reasonable in the conduct of the accused in order to meet the elemental requirements relevant to establishing whether the criminal offence of rape has been perpetrated by the accused as per the criminal standard of proof( beyound reasonable doubt). Basically the question at hand is whether there was consent to engaging in sexual intercourse. The courts had to decide whether tacit consent/implied consent is consent within the context of sex. Court was basically faced with dealing with questions of consent without words being exchange. Interpreting whether a conduct of a person within this particular case constituted as non-consent beyound a reasonable doubt. Here's how the case went

The Facts: Coko in the High Court

The case that we reading begins in the High Court. The first tier superior court in South Africa. The alledged perpetrator , we will refer to as LC, was convicted and sentence to 7 years imprisonment for rape by the regional court. The regional court denied his appeal but the High Court was good to go on hearing the appeal. Here are the facts of the case the High court had to evaluate and make a conclusion on.

The accused (LC) and the complainant( RE) were in a romantic relationship. The complainant was a student pursuing her studies and the accused was a paramedic driver. On the day in question they met up and organized that they would spend time together once the accused knocks off work. The accused knocked off work, picked up the complainant from her residence and they went to his residence. They got to his residence, watched a movie to its entirety and intimate activities began between the two. They kissed, hugged and there was oral sex which was acted on towards the complainant. Prior to this visit, the complainant had made it clear that she was not ready to have penetrative sex with the accused. The accused gave his assurance to her that there would no sex. Again during the intimacy in the bedroom after the movie, the complainant reminded the accused about the no sex rule, to which the accused assured her of his understanding. After the oral sex, the complainant already naked, the accused halted from giving the complainant oral sex, undressed himself and climbed on top of the complainant. They proceeded to kiss and the accused inserted his penis in the vagina of the complainant. The complainant during this, would stop the accused, telling him that he is hurting her, to which the accused would stop and the proceed again. He ejeculated inside and after the sex, there was an air of disbelief from the complainant as to whether "did that just happen". Days proceeding that night, there was text exchanges between the two wherein the complainant expressed her displeasure of the accused's action and having sex without a condom as she was worried about pregnancy. The dispute was resolved and the text exchanges between the two was cordial. They even set appointment to meet each other. But the complainant was suffering inside as what happened that night was against her expressed wishes to the accused. The accused on the other hand argued that the sex was consual through the conduct of the complainant. With fact having been outline, it now brings us to the question that had to be decided in this case, as to whether beyound a reasonable doubt, the accused had intention to have pentrative sex without the consent of the complainant.

THE COURTS JUDGMENTS:

The regional court found that the accused planned this whole thing, lured the complainant to his so that he could take her virginity without her consent. The regional court reasoned that more was required in acquiring the consent of the complainant than just going by the conduct and "body language of the accused. The regional court found him guilty and sentence him to 7 years for rape.

The accused feeling aggrieved by the courts judgment, took his matter to the High Court for appeal where the Acting Judge T Ngcukaitobi upheld the appeal and overturned the decision of the regional court on basis that the regional court, misdirected itself towards reaching its judgment. Found that the state did not satify its duty to prove an offence beyound reasonable doubt. The state failed to prove that the version of the accused that he believed tacit consent was given was false beyound reasonable doubt. That the court did not take the evidence as presented to the holistically. The court also made error in the sequence of event. I must mention, as far as judgments go, the High Court judgment was well written as its clear, concise and easy to understand.

The state proceeded to take the matter to the Supreme Court of Appeal. As it current stands, the SCA judgment is the law on consent, specifically whether tacit consent qualifies as consent for purposes of the criminal offence of rape as per section 3 of Criminal law( Sexual Offence and Related Matter) Act. On the concept of consent and its interpretation as it applies to section 3 of the Criminal law (Sexual Offences and Related Matters) act the SCA provided a detailed and clear interpretation of what consent means as propounded is section 3 of SORMA(sexual offences and related matters act). First the SCA provided that consent to one sexual act does not entail consent to all other forms of sexual acts. So consent to oral sex does not constitute as tacit consent to pentrative sex. For the purpose of offence of rape, to escape liability the accused must have believed that consent (either expressly /tacity) was given for penile vaginal pentrative sex. In the Coko case, the complainant on numerous occassion had expressed to the accused her wish not to have sex as she was not ready to engage in such activities. The SCA further provides in this regards that the accused given the expressions of the complainant not to have sex, should have recieved the complainants expression as it pertains to changing her mind before he proceeded to penetrate her. From the facts of case as per the record of the court, it is evident that event tacitly the complainant expressed her displeasure to having sex. Its important to note that absence of resistance does not constitute consent.

Another gem the SCA dropped is when it provided that "Continuing sexual contact after someone has said no is reckless conduct". It provides this after stipulating that intent in the form of dolus eventualis can consitute as intent to sexually penetrate without consent. Dolus Eventualis is a form of intention within the criminal space which dictates that wherein A forsaw the possibility that their conduct might result in unlawful outcomes but still continued to act recklessly is grounds for criminial liability for that conduct when it does produce an unlawful outcome. Within the case, where the accused forsaw the possibility that the complaints consent is lacking but still continued recklessly, then the accused can be said to have intended to rape the complainant.

In ensuring that the right to dignity, bodily intergrity and personal security are preserved and respect, its essential that during sexual intercourse, parties are aware of the others comfortability. During sexual intercourse consent is required in every step of the sexual intimacy between the parties in order to ensure that all parties are comfortable and pleased with what is happening.

CONLCUSION

In conclusion, tacit consent is dangerous waters within the four corners of the bedroom and therefore i would conclude that it has no room within the confines of sexual intercourse. Going by body language or conduct is not a sure science in determining whether consent is obtained, therefore its important that parties communicate with each other their desires and "non-desires" while in that intimate moment.

Disclaimer

The views and opinion expressed are those of my own, based on my own experiences and my subjective interpretation of the subject matter. They are not authority nor should they be construed to be authority. Do your research, read further, gain knowledge and do what you want with it.