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Lawyer clarifies judgment in contraversial EC rape 'consent' case

18 October 2021 11:18 AM
Tags:
Rape
consent
Tembeka Nguckaitobi

Lester Kiewit speaks to lawyer Maushami Chetty about the ruling in a rape case in the E.C which has put consent in the spotlight.

- Lloyiso Coko had his rape conviction overturned last week by Acting Judge Tembeka Ngcukaitobi

- Lawyer Maushami Chetty says there has been a wide misunderstanding of the controversial judgment in the case


There's been widespread outrage following a judgment handed down by a court last week, in which many claimed the judge had ruled that a woman had tacitly consented to penetrative sex but virtue of having agreed to oral sex.

Acting Judge Tembeka Ngcukaitobi overturned the rape conviction of Loyiso Coko, stating in the judgment that:

“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.” [par:94].

Lawyer Maushami Chetty says there has been a wide misunderstanding of the judgment and that the ruling did NOT in fact say the complainant had tacitly consented to penetrative sex.

The case does NOT say that foreplay or consent to foreplay is tacit consent for penetration.

Maushami Chetty, CEO - Aarya Legal

Chetty explains that while she believes Ngcukaitobi could have come to a different conclusion, he did apply the law correctly.

What it goes down to is that intention is still part of proving that a rape occurred.

Maushami Chetty, CEO - Aarya Legal

The definition of rape is that there must have been penetration that was unlawful and intentional and without consent says Chetty.

A court is required to listen to the State's version, listen to the complainant's version and decide if they are truthful or not.

Maushami Chetty, CEO - Aarya Legal

The whole case, says Chetty, turns on whether the accused reasonably believed that the complainant was consenting to sex.

One, with a judge's hat on, has to look and say was there, in fact, intention to commit rape.

Maushami Chetty, CEO - Aarya Legal
Picture: 123rf.com

Chetty says the case highlights the need to reform the law around sexual consent.

Our law in South Africa hasn't kept pace with developments in the rest of the world in terms of how we view and deal with consent and rape.

Maushami Chetty, CEO - Aarya Legal

RELATED:Rape culture: 'There's no other crime where a victim is so held up to question'




18 October 2021 11:18 AM
Tags:
Rape
consent
Tembeka Nguckaitobi

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