STORY | "Foreplay" does not constitute consent to penetrative sex, SCA rules

The story of Loyiso Coko should be studied by all men because it harbours important lessons for all of us. Loyiso is a young man from Eastern Cape who was employed as a paramedic. While at work he met a university student and they started dating. Let's call this girl X.

X was in her early 20s and also a virgin when he met Loyiso. Soon after the relationship started Loyiso and his girlfriend X decided to spend a romantic night together at his apartment. During the evening they engaged in foreplay and kissing before having sex.

After the night the couple continued communicating on WhatsApp and they were both concerned about the possibility of pregnancy until Girl X informed Loyiso that she was not pregnant as her "period had arrived". Girl X visited Loyiso AGAIN and for the next months the couple would meet on a social basis before the relationship ended.

Three months later, after the relationship ended, Girl X claimed that Loyiso raped her and went to open a case at the police station. She claimed that she was not ready to lose her virginity and when she tried to stop Loyiso he did not stop but instead continued to penetrate her. She claimed that they agreed with Loyiso that they were just going to spend a night together and cuddle, but no sex. 

The case was heard at the Makhanda regional court and Loyiso was found guilty and sentenced to 7 years imprisonment. Loyiso went to the high court to appeal his sentence claiming that the state failed to prove beyond reasonable doubt the elements of the crime of rape.

The high court overturned the Makhanda decision and ruled that Loyiso's conviction was unsustainable based on the evidence presented. The high court found that Girl X gave consent to penetrative sex when she allowed Loyiso to undress her, kiss her and also do foreplay. It concluded that there was no rape since Loyiso did not use force or coercion. The court further held that the accused did not intend to rape his girlfriend but instead he just went with the motionšŸ˜¶ Loyiso was finally a free man. 

In a turn of events, the case was taken to the Supreme Court of Appeal and the court overturned the high court verdict. The SCA found that "foreplay" does not constitute consent to "an act of penetration" and reinstated Loyiso's guilty verdict. 

The decision is important to read and discuss because it puts it clear that oral sex and foreplay does not signify consent to sex. It is a clear lesson to men that we should not recklessly engage in penetrative sex without properly ascertaining that consent is present. 

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