Lwando Xaso is an attorney and a writer exploring the interaction between race, gender, history and popular culture. She is the author of the book, ‘Made in South Africa, A Black Woman’s Stories of Rage, Resistance and Progress’.
The matter involves a young woman (the complainant) and young man (the appellant), both aged 23, who were in a relationship. The complainant in the case was a postgrad student and the appellant worked as a paramedic. On the evening in question, they had made plans to spend the evening together at the appellant’s place. There was an express agreement between the two that there would be no penetrative sex, as the complainant had never had penetrative sex before and was not ready to do so. The couple watched a movie on the appellant’s bed and thereafter started kissing. The appellant undressed the complainant and performed oral sex on her, which was consensual. Thereafter the appellant penetrated the complainant because, according to him, her body language indicated consent. However, according to the complainant, the sex was not consensual. It was rape. We also know from the facts that after the alleged rape, the complainant spent the night at the appellant’s place.
We often think of rape as an act of forced, brutal physical violence that happens in dark, strange and desolate corners and fields at the hands of strangers. Rape in the warmth of the marital or premarital bed by duplicitous men we know still remains so dissonant despite reality. It was Justice Khampepe who wrote in Tshabalala v S; Ntuli v S “that the notion that rape is committed by sexually deviant monsters with no self-control is misplaced. Law databases are replete with cases that contradict this notion… Often, those who rape are … lovers, mentors… We commune with them.” All rape is unimaginable trauma, but rape by someone you love is a double trauma. Justice Khampepe writes that there is a cognitive dissonance that occurs when the actual rapist does not match the description of rapists. This cognitive dissonance leads to problematic beliefs such as “person X is a good man”, which have the effect of then centring on the actions of the victims and not those of the actual rapist.
Sexual coercion is defined as “unwanted sexual activity that happens when you are pressured, tricked, threatened, or forced in a nonphysical way. Coercion can make you think you owe sex to someone.” In the Coko v S case, the complainant’s version is that after the complainant penetrated her “I was crying, trying to push him off of me and I kept saying he must stop, he is hurting me… He wouldn’t stop…” The appellant’s version is that the complainant showed no discomfort and that “he inserted his penis in her vagina. The complainant did not stop him from penetrating her. She mentioned that the penetration was hurting, when he would stop and continue again. After he finished the sexual penetration he [lay] next to her.” The appellant testified that the complainant did not resist in any way. After sex, they cuddled and spent the night in the appellant’s bed.
Even if we accept the appellant’s version of the lack of resistance, that is not proof of his innocence. A common fact between the parties is that at the beginning of their date they agreed there would be no sex. This was an upfront boundary that the complainant had articulated. Men are socialised to wear down the boundaries articulated by women rather than to respect them. Even more worrisome studies have found that, compared with women, men consistently perceive a greater degree of sexual intent in women’s behaviour. And women are socialised to be accessible to men, to not upset but please men, or risk unpopularity.
Some men see coercion as persuasion. That with much convincing a “no” can be turned into a “yes”. And some women have shared that they sometimes have sex as a form of self-defence or self-preservation in order to avert any danger that would come with upsetting men with our resistance.
There are factors in this case that make the circumstances ripe for an allegation of sexual coercion. For example, the fact that the appellant works and the complainant is a student already hints at unequal power. And the fact that the complainant was at the appellant’s house in the middle of the night would have made it easier for the appellant to coerce the complainant, as he had power over her since she was in his home and could throw her out if she said no.
Rape and the culture that supports it cannot be dismantled through law alone. We will end the rape epidemic in SA when we dismantle patriarchal capitalism. Rebecca Solnit writes that in our patriarchal capitalistic world “sex is a commodity, accumulation of this commodity enhances a man’s status, and every man has a right to accumulation, but women are in some mysterious way obstacles to this, and they are therefore the enemy as well as the commodity”. The problem, as articulated by Solnit, is that we lack empathy and compassion and the imagination that goes with those capacities. That’s something money can’t buy and capitalism won’t teach us. DM168
This story first appeared in our weekly Daily Maverick 168 newspaper which is available for R25 at Pick n Pay, Exclusive Books and airport bookstores. For your nearest stockist, please click here.