EUSEBIUS McKAISER | Ngcukaitobi wrong to let rapist off the hook

Advocate Tembeka Ngcukaitobi overturned a rape conviction this month while sitting as an acting judge of the high court in Grahamstown. His decision, taken with a permanent member of the bench, Gqamana J, rightly caused a massive stir among activists and lawyers alike.

One or two well-respected lawyers, like Adv Ben Winks and former Wits University criminal law scholar, Prof James Grant, have argued that Ngcukaitobi is on the correct side of the law. It is the law that should be put on trial, they say, and not Ngcukaitobi. As far as they are concerned, critics either have not read the judgment (carefully) or do not know that this area of the law just is regressive. And so they conclude that the brilliance of Ngcukaitobi remains intact. In fact, Ngcukaitobi SC is role-modelling the importance of being a good textual lawyer who doesn't willy-nilly 'make' law where opportunity for such does not exist. It is the government that should be ashamed of not leading us on the question of what consent should be defined as in law. It isn't lawyers who should take the blame for antiquated sources of law.

I want to weigh in on this matter because it is crucial in a country with an entrenched rape culture to get this right. What happened in this case? Did Ngcukaitobi properly apply the existing law to the agreed facts (even if we accept that the law is anti-women and that it is not the judge's fault that that is so)? And, what should the law on consent be? What kind of law reform is overdue?

Essentially a man and a woman ended up in bed together and explicitly agreed to kissing, cuddling, and oral sex, only. This is common cause. They also, furthermore, explicitly agreed that there would be no penile-vaginal penetration. The woman was clear that she didn't want their intimacy to go that far. He, in turn, was clear that he understood her desire and the limits of what they would be doing.

But a different set of events then unfolded. After kissing and cuddling and performing oral sex on her, he took off his pants and proceeded to penetrate her vaginally. She expressed pain and asked that he stop. He stopped. Briefly. And then continued again. After wrestling with her memory and feelings in the days ahead, she laid a criminal charge of rape. A magistrate's court found the man guilty of rape.

Ngcukaitobi overturned the guilty verdict because he did not think the state had proven guilt beyond the requisite criminal law standard of reasonable doubt. Furthermore, and intrinsically related to that assessment, Ngcukaitobi reminds us that so long as the man's version of events is reasonably possibly true, that version must be accepted even if it is a version that is improbable. Unless, that is, the state had succeeded in discharging its very high evidential burden of ruling out the version of the appellant as reasonably possibly true.

In this case, the appellant argued that, as he proceeded with penile-vaginal penetration, the body language of the woman led him to believe that they were still engaging in consensual sexual activity. This is the nexus reason why Ngcukaitobi overturned the guilty finding. This is how the law works and not how it should work, argues Winks in his intervention, concurring with the analytical steps that had been taken by Ngcukaitobi. Is this legal analysis, upon reflection and despite public condemnation, correct? Is it the law that let the woman down or did Ngcukaitobi AJ let her down?

It seems to me that the crux of this case is about how Ngcukaitobi assesses the man's claims about the body language of the woman when he penetrated her without her explicit consent. She had explicitly said that she did not want to be penetrated vaginally. She explicitly said that she was in pain. She explicitly asked him to stop. All of these common cause facts, when added together, render the man's inference that the woman was consenting, patently dishonest, on his own version. Even if one accepts that 'reasonably possibly true' is compatible with 'improbable', the man's own version of the facts here makes it impossible to believe that he genuinely took the woman to be consenting to penile-vaginal penetration despite her explicit wish to the contrary, despite her explicit expression of pain, despite her explicit request that he not continue. So even if we imported the idea of implied or tacit consent into our analysis in order to make sense of what we think the appellant is trying to convey to the court, the facts cited do not demonstrate this case to be an example of tacit consent.

We do not need to put the law on trial as Adv Winks effectively asks of us. We can put the law on trial and will do so shortly but we need not do so in order to make sense of justifiable outrage at this guilty verdict having been overturned by Ngcukaitobi. Even if we accept, for a brief moment, that the law is grossly patriarchal, and even if we are in love with conservative hermeneutics that eschew references to value-laden interpretations of legal texts, and only focus on the ordinary meaning of words on our statute books, this was still a miscarriage of justice in light of the man's own version of how events unfolded. That is the deep disappointment in this case, and why it constitutes the lowlight of Ngcukaitobi's otherwise phenomenal and brilliant legal career thus far.

Put differently, if Ngcukaitobi thinks the man's version of events is reasonably possibly true, I would dearly love to know what would be required for the story to be falling short of (tacit) consent. The opposite of an objective test of whether or not the woman had consented cannot be mere stipulation by a man that consent is present. I accept that we do not require, on current law, that you must take certain objective steps to establish that your subjective belief that the other party is consenting is indeed a true or reasonable belief. But this case errs by setting a precedent of defining subjective as being whatever the whimsical desire of a person at a particular point in time is. Ngcukaitobi needed to drill down into the space between the whimsical and objectivity. This is one occasion where pithy legal adjudication has turned out to be a pity.

And so I am not convinced that Grant and Winks succeed in rescuing Ngcukaitobi from searing critique. Even if one is open to — as good lawyers must be — the normative gaps between what sources of law in fact say and what they ideally should be saying, this case was handled sloppily on the facts. Ngcukaitobi did poorly even if you are not an activist lawyer.

For example, the version of the woman is not evaluated for epistemic authority on her part. Her voice is silenced in the final moments of legal adjudication. Yet a crucial earlier part of the judgment summarises her testimony as follows: “23.12 The Prosecutor asked 'so he penetrated you and then what happened?' The Complainant responded 'I was crying, trying to push him off of me and I kept saying he must stop, he is hurting me. I had like my hands on his shoulders trying to push him off. He wouldn’t stop and he just carried on shoving it in and out and kept saying sorry in my ear.'”

How can the court accept that the man's putative belief that the woman consented to penetration is an honestly held subjective belief unless the court deems the woman to be an unreliable witness? But if she is reliable and credible then the man must have intended and in fact intended to subvert her autonomy and to deliberately disregard her withholding her consent. It is insane to arrive at the conclusion that the man subjectively believed the woman was agreeing to penetration when she had even physically attempted to get him off her while crying and asking him to stop. What was Ngcukaitobi AJ thinking?! The appellant, given the facts, had knowledge of the woman's objective withholding of consent. We therefore cannot impute to the man a genuinely held belief that he was acting lawfully. He knew he wasn't.

I have avoided, so far, commenting on that which has dominated public debate about this case but it would be remiss of me to not engage the wider implications of the case. Too many men don't care about seeking the explicit and enthusiastic consent of women when we want to satisfy our sexual desires. This verdict, unintentionally for sure, worsens that social reality. It underscores the sense of entitlement men have over the bodies of women, and the disregard we have for their agency.

The verdict also treats men as children who should not be expected to act like adults. It lowers the bar for men by conveying the message that men can act on instinct rather than being required to reason carefully and to treat others as persons rather than as objects. The judgment in effect infantilises men and does so at the expense of women's safety, bodily and psychological integrity, and dignity. It is catastrophic in its effect in multiple ways that only apologists for rape culture can underestimate.

We also need to reform our law urgently. It cannot be the case that unless a woman screams “No!” she is deemed to have consented. Nothing is lost in our romantic lives if we shifted our definition of consent away from the subjective and untested beliefs of one party and at the very least requiring you and me to take reasonable steps to confirm the explicit consent of the party we are being intimate with. This should include a pushback too against the social trope that consent cannot be withdrawn or that it necessarily applies over a period of time regardless of the changes in feelings of one of the parties. Only dodgy folks think that the practical effect of this normative shift would be that sex will become cumbersome or unfun.

Not only did Ngcukaitobi wrongly apply the existing law to the common cause facts but he also missed an opportunity to expand the law. In other words, even if the correct statement of the law is that it currently demands a high burden of proof from the state that the man didn't subjectively believe he was acting lawfully, the law should then be developed to be consistent with the constitution. That wouldn't be a matter of willy-nilly making law from the bench but, instead, doing so would be taking seriously the judicial duty, in fact, to develop the law in the direction of our normative constitutional framework. Demanding enthusiastic consent as a matter of good law is constitutionally sensible.

If seeking the enthusiastic consent of your partner is too much of a burden for a sexually active person then that person should stick to masturbation.

• McKaiser is a TimesLIVE contributor and analyst