Court overturns conviction of man found guilty of raping girlfriend who didn't want penetrative sex

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A man has been cleared of rape.
A man has been cleared of rape.
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  • A former paramedic found guilty of raping his girlfriend has been acquitted.
  • The Eastern Cape High Court set aside the man's seven-year prison sentence.
  • The High Court said the findings of the Makhanda Regional Court were "erroneous".

The Eastern Cape High Court overturned the conviction of a former paramedic found guilty of raping his girlfriend who had expressed a wish not to have penetrative sex as she wanted to remain a virgin.

Acting Judge Tembeka Ngcukaitobi set aside Loyiso Coko's seven-year prison sentence, saying the findings of the Makhanda Regional Court were "erroneous".

The regional court had found Coko guilty of raping his girlfriend, a Rhodes University Master's student, in July 2018.

READ | I can't trust men and feel ashamed – 62-year-old rape victim still lives in fear

Coko, a former paramedic, and the student, who was 24 years old at the time, were in a romantic relationship.

The National Prosecuting Authority had said the two had agreed that they could have oral sex, but the woman had expressly warned Coko against any penetration because she was still a virgin, News24 previously reported.

However, Coko forced himself on her and raped her.

Consent

Coko was arrested in September 2018 after the student laid a charge.

But according to court papers, Coko said he believed that consent had been given, and had he known that consent had been withheld, he would not have proceeded with intercourse.

In his judgment, Ngcukaitobi said: "It was the evidence of the appellant (Coko) that throughout the encounter, the complainant was an equally active participant, she was not merely passive – she kissed the appellant back, she held him, she had no problem with the removal of her clothes, she watched him take off his clothes without raising an objection, she knew he was erect, she did not object to the oral sex.

Ngcukaitobi said:

The only area where there was a dispute was after the penetration. It is in this area where the complainant says she objected and said the penetration was hurting. The appellant's evidence was that when the complainant said the penetration was hurting, he 'would stop and then continue'.


Ngcukaitobi said this aspect was not taken up during cross-examination nor was it weighed in the assessment of the probabilities by the magistrate.

"It was not the evidence that the appellant simply continued with the intercourse in disregard of the wishes of the complainant, as held by the magistrate."

He added: 

In these circumstances, I cannot uphold the findings of fact of the magistrate which are unjustified when one has regard to the record. I cannot hold that the state proved that the version of the appellant that he genuinely believed there was at least tacit consent was false beyond reasonable doubt.

The acting judge also said the finding by the magistrate that the woman made it clear to Coko that she did not consent during the kissing and the oral sex was "not correct and not borne out by the record".

"The magistrate found that the rape was planned beforehand. He concluded that the appellant lured the complainant to his apartment thinking that he could get away with the rape. There is no evidence to support this conclusion," Ngcukaitobi said.

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