The standard of unreasonable belief

A clear example of outdated laws protruding through our South African Justice system was recently displayed in the appeal matter of Coko v S,[1] where Acting Judge Tembeka Ngcukaitobi‘s was forced to overturn the court a quo’s decision to convict an accused of rape and instead provided a ruling of not guilty, based on outdated patriarchal law.

Background

The Appellant in this matter was convicted of one count of rape and sentenced to serve seven years of imprisonment.

The appellant approached the high court appealing both his conviction and sentence claiming that the state had “failed to prove beyond reasonable doubt the elements of the crime of rape”[2]

The Appellant and the Complaint where in a relationship for several months prior to the incident. Despite their long relationship they had not yet engaged in penetrative sex. On the evening in question the Complaint went to the Appellants home with the understanding that they would not engage in penetrative sex. However, after foreplay the Appellant penetrated the complaint under the belief that he had consent to do so.[3]

The appeal was successful and both the conviction and sentence was set aside.

(Note this is a summary of the facts and for better understanding the case should be read in its entirety.)

Current law

The court looked at the following statutory provision when reviewing the court a quo’s decision:

·????????“Section 3 of the Act punishes the unlawful, intentional sexual penetration without consent.?

·????????In turn, “sexual penetration”?means “any act which causes penetration to any extent whatsoever by … (a) the genital organs of one person into or beyond the genital organs, anus, or mouth of another person.”.?(Section 1(1)).?

·????????Section 1(2) deals with consent and provides inter alia that for the purposes of the offence in Section 3 (rape) consent means “voluntary or uncoerced agreement”.?

·????????Section 1(3) provides for the circumstances in which a complainant does not voluntarily or without coercion give consent to sexual penetration.”[4]

The court had to look at the current position and application of the defence of consent in rape matters:

The court looked to CR Snyman’s work, which states that:

“For consent to succeed as a defence, it must have been given consciously and voluntarily, either expressly or tacitly, by a person who has the mental ability to understand what he or she is consenting to, and the consent must be based on a true knowledge of the material facts relating to the intercourse.”[5]

?

And further supplemented Snyman’s work by examined the definition and application of consent as applied in Mugridge v S [2013] ZASCA 43;?2013 (2) SACR 111?(SCA) from paras [37-40].

The court further analysed the evidence presented at the trial and expressed concern over several factors categorised as “Erroneous findings and fair trial rights affected”[6], one such factor included the continued reference to the complainants virginity and the Regional court allowing the prosecutor to continue a line of inquiry using the complainants virginity as a means to prove that the Applicant cannot rely on the defence of tacit consent. The court went on to state that there is no foundation for this notion in our law.[7]

Consent as a defence to allegations of rape

What is consent:

“Consent does not mean agreement (consensus). Agreement requires a?meeting of the minds between two or more people. It is a bilateral or multilateral act. Consent is a unilateral act and thus can be withdrawn unilaterally.[8]

The defence of consent in rape matters includes that of express or tactic consent. Express consent is consent given in words, whether in writing or spoken word[9].Tacit consent is the subjective belief that you have been given consent. Subjective belief is based on an individual personal perspective.

South Africa is the only Common Wealth Country to allow the defence of tacit consent to not require a standard of believability in consent, therefore the most outlandish belief that you have consent is sufficient. Whereas in other Common Wealth Countries there is a standard of reasonable belief in consent that must be rigidly applied when using this defence.

Disproving subjective belief and reasonable possibility

Currently:

“It is trite that there is no obligation upon an accused person, where the State bears the onus, “the convince the Court”.?If his version is reasonably possible true, he is entitled to an acquittal even though his explanation is improbable.?A Court is not entitled to convict unless it is satisfied not only that the explanation is improbable but that beyond any reasonable doubt it is false.?It is impermissible to look at the probabilities of the case to determine whether the accused’s version is reasonably possibly true but whether o,ne subjectively believes him is not the test.?As pointed out in many judgments of this Court and other Courts the test is whether there is a reasonable possibility that the accused’s version may be true.”[10](My emphasis)

In South African law, Once the defence of tacit consent is raised the state is tasked with disproving the subjective belief beyond a reasonable doubt. In order to disprove the subjective belief of consent the consent must pass the subjective standard test rather than objective standard test.

The subjective test requires the State to prove that the accused intended their actions, being the accused’s actions. Whereas the objective standard test requires the state to prove that a reasonable person, in the same circumstances,?would have not acted as the accused did.

What needs to be noted is how high the standard of proof is for the State. The requirements being that the State is asked to prove another person’s intentions to a belief which may not even be a reasonable one. Had there been a required standard of reasonable belief in consent, like most common wealth countries, the State would only have to prove that the belief presented before the court is unreasonable rather then attempting to disprove a subjective perspective of what the accused did or did not believe.

Amendment time

There have been calls from various feminine groups, gender based violence and anti-rape movements to “tighten” the laws of consent surrounding rape matters. Various movements have called for a movement towards more “Affirmative consent” when dealing with rape matters.

“Affirmative consent” has been defined as “explicit, informed, and voluntary agreement to participate in a sexual act”[11] Despite the requests the laws have remained unchanging and stagnated. This principal much like express consent relies on the yes means yes and no means no fixed terms, however this does nothing to develop and current legal notion of subjective unbelievable or outlandish belief in consent.

With the effects of outdated and patriarchal laws grossly apparent from the aforementioned judgement, perhaps it is time South Africa shied away from a subjective outlandish belief system of belief and gave into reason, by allowing for a more reasonable belief approach.

By Chanté Botha

[1] Coko v S (CA&R 219/2020) [2021] ZAECGHC 91 (ECG)

[2] Coko v S (CA&R 219/2020) [2021] ZAECGHC 91 (ECG) at para [2]

[3] Coko v S (CA&R 219/2020) [2021] ZAECGHC 91 (ECG)

[4] Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, Sections 3, 1(1)-(3)

[5] C R Snyman?Criminal Law?5 ed (2008) at 364. This point was reiterated in S v Nitito (123/11) [2011] ZASCA 198 at para [8]

[6] Coko v S (CA&R 219/2020) [2021] ZAECGHC 91 (ECG)

[7] Coko v S (CA&R 219/2020) [2021] ZAECGHC 91 (ECG) at sub-para [103,4]

[8] Criminal Law in South Africa (Third Edition) Edited by?Gerhard Kemp,?Shelley Walker,?Robin Palmer,?Dumile Baqwa,?Christopher Gevers,?Brian Leslie, and?Anton Steynberg, at 105

[9] Criminal Law in South Africa (Third Edition) Edited by?Gerhard Kemp,?Shelley Walker,?Robin Palmer,?Dumile Baqwa,?Christopher Gevers,?Brian Leslie, and?Anton Steynberg, at 105

[10] S v V?2000 (1) SACR 453?(SCA) at para [3]

[11] Dictionary: https://languages.oup.com/google-dictionary-en