Overturning of ‘foreplay’ verdict critically overturns widely held myths on intimate partner rape

The subject of rape and other forms of sexual violence against women permeates public discourse in South Africa. It certainly looms large in discussions among feminists, activist survivors, and those concerned with the rights of women, who all must persistently fight against the tireless deluge of gendered violence in this country.

Attention given to gender-based violence is necessary: however what is equally necessary is that engagements with the issue better reflect the full spectrum of sexual violence, as opposed to just a segment.

Much of societal discourse remains fixed on the “extreme” manifestations of sexual violence committed by strangers — cases of gang rape, serial rapes, rapes involving brutal acts of violence in addition to the sexual violence, such as stabbing, beating, strangling, abductions, and threats or attempts to kill.

We need to have a more expansive understanding of sexual violence. Most sexual violence experienced by women is not committed by strangers but by intimate partners. These include husbands, boyfriends, dating partners, and exes.

Read more in Daily Maverick: South Africa’s staggering intimate partner violence stats aren’t shifting – here’s what we can do about it

Unfortunately, intimate partner sexual violence is one of the least-discussed, understood and researched forms of gendered harm. Cases such as these are also far less likely to be reported to the police, prosecuted, and to result in convictions.

It is in this context that a landmark decision handed down on 24 April 2024 by the Supreme Court of Appeal and concerning intimate partner rape is so important and has much to teach us.

In Director of Public Prosecutions, Eastern Cape, Makhanda v Coko, the Supreme Court of Appeal overturned a highly controversial 2021 Grahamstown High Court decision penned by then Acting Judge Tembeka Ngcukaitobi, acquitting a young man of raping his girlfriend.

Read more in Daily Maverick: Supreme Court of Appeal overturns high court rape ruling that foreplay implies ‘tacit consent’

The high court ruling had attracted considerable opprobrium as it relied on rape myths in coming to the decision that the boyfriend was not guilty of the crime.

Despite the fact that the girlfriend had repeatedly earlier expressed that she did not want to lose her virginity, and had cried out and tried to push her boyfriend off as he was penetrating her, the high court dismissed her truths and their significance.

Instead, the judges centred the perspective of the accused, finding that the couple’s engagement in kissing and oral sex indicated the woman’s tacit consent to penetrative sex. The accused did not intend to rape his girlfriend, the court had concluded, but instead had, in his own words, just gone “with the motion”.

The State, along with three “friends of the court” — the Women’s Legal Centre Trust, the Initiative for Strategic Litigation in Africa, and the Commission for Gender Equality — subsequently took the problematic case before the Supreme Court of Appeal, and it ruled in their favour.

Critical judgment

The Supreme Court of Appeal decision is critical for several reasons. For one, the decision is largely understood as clarifying that oral sex and other foreplay do not categorically signify consent to penetrative sex. It also reaffirms that male partners must not recklessly engage in penetrative sex with their female partners without properly ascertaining whether consent is present.

The Coko case holds other important lessons. It brings to light the phenomenon of intimate partner rape. So often the sexual violence that women experience at the hands of their partners and ex-partners gets lost within the label of “domestic violence”. We rarely see cases with facts such as the one in Coko reported in the news, or the subject of litigation.

“Is it even rape?”, those informed by rape myths would ask. The individuals are boyfriend and girlfriend after all, and there was no excessive violence. He didn’t beat her, strangle her, or stab her. There was no history of other violence.

In line with these tropes, the high court judges certainly were unmoved by the survivor’s plight. Swayed by stereotypes, what happened to the girlfriend simply did not look like rape to them.

The Supreme Court of Appeal’s Coko decision retrieves from the margins the experiences of women such as the survivor in the case. It stands in stark contrast to the high court decision in which the survivor’s voice was all but erased.

That court advanced what it ostensibly thought was “objective” reasoning, but it was heavily informed by rape myths — such as that one form of sexual intimacy gives a partner licence to all forms of sexual intimacy; that men are unable to control their sexual urges; that sexual penetration is expected in a relationship; that rape is not possible where a couple had agreed to spend a quiet and romantic evening together; and that there are no power disparities where the parties are of the same age.

If the high court decision had been left to stand, this would, cautioned the Supreme Court of Appeal, “entrench patriarchal attitudes, stereotypes and mindsets that the rights of women and children… to their dignity and physical integrity count for little and can therefore be gratuitously violated with impunity”.

There is no “typical” form of intimate partner rape. Sometimes intimate partner rape happens in isolation, and in other cases it happens alongside physical, economic and psychological violence. It may happen once, or with cruel regularity over the course of years.

The vast majority of intimate partner sexual violence does not come to light as survivors struggle to come to terms with it and face considerable complications in seeking help for it.

This makes the Coko case even more remarkable.

More than just telling us that consent to foreplay is not consent to penetrative sex, we should take from Coko that we likely hold distorted perceptions of how rape manifests; and that we need to question and criticise the myths that so easily mould our own judgements. DM