By Tania Broughton, GroundUp
A case that raises important questions about how South African courts react to cases of sexual violence and rape is being heard by the Court of Appeal this week.
The appeal application was submitted by the director of public prosecutions in the Eastern Cape against a High Court judgment which set aside the conviction of Loyisa Coko. Coko was found guilty in the regional court of raping his girlfriend.
Testimony before the regional court was that the girlfriend expressly said “no” when Coko wanted intercourse and that she even cried and tried to push him away from her.
The regional court found Coko guilty and sentenced him to seven years in prison.
However, the conviction and sentence were overturned on appeal after the High Court ruled that Coko did not intend to rape his girlfriend. Coko and the girlfriend were in a romantic relationship for two weeks before he apparently raped her.
The High Court found that he had mistakenly believed that she had consented to intercourse because she had engaged in other forms of intimacy.
The Initiative for Strategic Litigation in Africa (ISLA), represented by the Center for Applied Legal Studies (CALS), joined the proceedings as friend of the court (amicus curiae), arguing that the High Court’s findings essentially ignored the voice of the victim and relied on certain “rape myths”.
CALS said the matter is of critical importance in exposing how South African courts continue to fail to adjudicate cases of violence in intimate relationships in a manner consistent with the country’s constitutional values and with international human rights norms.
“Although rape committed by women’s husbands, boyfriends or ex-partners is the most common form of sexual violence, these cases rarely reach the courts. The victims of sexual violence in intimate relationships are confronted with a lack of awareness and discriminatory attitudes maintained by police and prosecutors, with the result that their cases rarely proceed to trial,” said CALS.
“When cases do reach court, it is not uncommon for judges to not understand the dynamics of this form of rape either. We are then left with a high level of impunity for sexual violence, although it affects a large segment of women in South Africa.”
According to CALS, an approach according to human rights guidelines requires that courts understand all forms of sexual violence, including rape in romantic relationships, and that they examine cases in context so that victims are not discriminated against during the court process.
“Courts must also center the voices and experiences of victims, and avoid using rape myths and stereotypes, which then downplay victims’ experiences and simply reinforce the perspectives of perpetrators.”
Sheena Swemmer, head of gender justice at CALS, says the High Court’s findings have no “justifiable legal basis”.
“The court failed to carry out a contextual analysis of consent in the case, which led to a flawed judgment with serious consequences if left unchallenged. It places unnecessary emphasis on the victim’s actions, instead of those of the perpetrator.”
CALS’ legal representative, adv. Loyisa Makapela, says the High Court failed to take the victim’s strong insistence not to have sex – which she communicated verbally and in her body language – into account.
According to Makapela, the High Court also failed to take into account the regional court’s emphasis on her virginity and because the court – according to the judgment – then runs the risk of being involved “in issues of sexual morality”.
“The High Court failed to recognize that this was in fact a further violation of the victim’s right to safety, control over her body and her dignity, as the memory of her first sexual interaction is something that will sour other future interactions,” argues Makapela.
Several other institutions, including the Women’s Legal Center and the commission for gender equality, also asked to be involved in the case as friends of the court.
The case will be heard on Tuesday.
- The post is originally on GroundUp published and is used with permission on RNews.