When ‘no’ means ‘no’ – the controversy from misunderstanding the concept of sexual consent

December 1st, 2021

Picture source: Gallo Images/Getty

‘Control over the sexual activity one engages in lies at the core of human dignity and autonomy’ (R v Hutchinson 2014 SCC 19). ‘Society’s commitment to protecting a person’s autonomy and dignity requires that individuals have the right to determine who touches their body, and how the touching will occur’ (Hutchinson at para 83). Non-consensual sexual intercourse is a coercive sexual practice that undermines women’s sexual autonomy, bodily integrity, and their right to decide in what sexual activity they are willing to participate in. ‘It is deeply troubling that in [2021], we are still trying to sort out the role of these practices in establishing consent to sexual activity’ (Lise Gotell and Isabel Grant ‘Does “no, not without a condom” mean “yes, even without a condom”? The fallout from R v Hutchinson’ (2020) 43 Dalhousie Law Journal 767). ‘Rather, it must be linked to the “sexual activity in question”, which encompasses “the specific physical sex act”, “the sexual nature of the activity”, and “the identity of the partner”’ (R v Barton 2019 SCC 33 (CanLII)).

The controversy in this article arose from a misunderstanding of the concept of sexual activity in question in Coko v S (ECG) (unreported case no CA&R 219/2020, 8-10-2021) (Ngcukaitobi AJ).

In para 90 of the judgment, Ngcukaitobi AJ refers to a decision in the Supreme Court of Appeal S v SM  2013 (2) SACR 111 (SCA) that sets out the requirements for consent. It is –

  • the consent itself must be recognised by law;
  • it must be real consent; and
  • it must be given by a person capable of consenting.

It is the second requirement that brought about the controversy regarding consent. ‘There are two aspects to the overarching concept of consent. The first is subjective consent, which relates to the factual findings about whether the complainant subjectively and voluntarily agreed to the sexual activity in question, and the second requires that subjective consent also be effective as a matter of law’ (R v GF 2021 SCC 20 (CanLII)).

‘Subjective consent requires a complainant to formulate a conscious agreement in their own mind to engage in the sexual activity in question, and it follows, as a matter of logic, that the complainant must be capable of forming such an agreement’ (Elizabeth Raymer ‘Consent and capacity do not have to be considered separately in sexual assault cases: Supreme Court’ (www.canadianlawyermag.com, accessed 5-11-2021)). ‘The actus reus of sexual assault requires the [state] to establish three things: (i) touching; (ii) of an objectively sexual nature; (iii) to which the complainant did not consent … . The first two elements are determined objectively, while the third element is subjective and determined by reference to the complainant’s internal state of mind towards the touching … . At the mens rea stage, the [state] must show that (i) the accused intentionally touched the complainant; and (ii) the accused knew that the complainant was not consenting, or was reckless or wilfully blind as to the absence of consent … . The accused’s perception of consent is examined as part of the mens rea, including the defence of honest but mistaken belief in communicated consent’. ‘Consent means that the complainant, in their mind, agreed to the sexual touching taking place … . Consent requires “the conscious agreement of the complainant to engage in every sexual act in a particular encounter”’ (R v GF (op cit)). Therefore, the accused’s belief as to whether the complainant is consenting is not a factor when determining the absence of consent for purposes of the actus reus of sexual assault. It is all about whether the complainant in her mind wanted the sexual touching to take place. It is the complainant’s perspective on the touching that exclusively drives the analysis. It is entirely subjective in nature.

Whether the complainant subjectively consented must be resolved by considering both the complainant’s testimony about her state of mind at the time of the events and other evidence that may inform the question of what was on her mind at the time. That evidence may include the complainant’s words and actions in and around and at the time of the incident in question.

In para 81 of the judgment reference is made to an excerpt of the Magistrates’ finding that reads ‘the complainant explicitly barred the accused from penetrating her vagina with his penis so as to prevent him from deflowering her.’ In para 82 of the judgment Ngcukaitobi AJ criticises the finding of the Magistrate. I agree with his criticism that ‘there are no different standards applicable to women (or men) who are virgins and those who are not’ (Coko at para 82). I do, however, not agree with his finding for the following reasons. ‘The complainant set out her “sexual boundaries”, which included that she would not consent to intercourse’ by sexual penetration (Gotell and Grant (op cit)). Consent ‘must be linked to the “sexual activity in question”, which encompasses “the specific physical sex act”, “the sexual nature of the activity”, and “the identity of the partner”’ (Barton (op cit) at para 88). The complainant did not consent to at the ‘time to conditions and qualities of the act or risks and consequences flowing from it’, as these ‘conditions are “essential features” of the sexual activity … or go to “how” the physical touching was carried out’. The reference to her being a virgin substantiates and wanting to remain one is part of her reasoning for setting the sexual boundaries. Throughout the judgment, Ngcukaitobi AJ discussed how the complainant voiced her non-consent to sexual penetration.

Paragraph 94 of the Coko judgment reads: ‘The correct sequence of the evidence, as given by the complainant, is that she mentioned that she closed her legs and mentioned that she [did] not want to have sex with the appellant as he was undressing her.’

‘There are essentially two approaches to determining the meaning of what constitutes voluntary agreement to the sexual activity in question and the role of mistake or deception in determining whether such agreement existed. The first approach defines the “sexual activity in question’ as extending beyond the basic sexual activity the complainant thought she was consenting to at the time to conditions and qualities of the act or risks and consequences flowing from it, provided these conditions are “essential features” of the sexual activity or go to “how” the physical touching was carried out. The second approach defines “the sexual activity in question” more narrowly as the basic physical act agreed to at the time, its sexual nature, and the identity of the partner’. ‘“Sexual activity in question” … [refers] simply to the physical sex act itself (for example, kissing, petting, oral sex, intercourse, or the use of sex toys). The complainant must agree to the specific physical sex act’. ‘Agreement to one form of penetration is not an agreement to any or all forms of penetration and agreement to sexual touching on one part of the body is not an agreement to all sexual touching’ (Hutchinson (op cit) at para 54). In terms of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, ‘“sexual penetration” includes any act which causes penetration to any extent whatsoever by –

‘(a) the genital organs of one person into or beyond the genital organs, anus, or mouth of another person’.

A limitation on the definition of the sexual activity in question would be perverse, as it would, without any rationale, prevent a person from limiting their consent in a manner that is intimately related to their personal autonomy and the public interest. It is important that courts do not ignore important physical differences that can exist within broad categories of sexual activity and the consent or non-consent to each specific activity.

It is always open to the accused to attempt to raise a reasonable doubt about a complainant’s direct evidence regarding her state of mind at the time of the incident, by pointing to the complainant’s ‘words and actions, before and during the incident’ (R v Ewanchuk [1999] 1 SCR 330). Ultimately, though, whether the complainant subjectively consented to the sexual activity in question is a matter of credibility to be determined by the court considering all the evidence.

In para 94 of the Coko judgment, Ngcukaitobi AJ writes: ‘No force or threats were used to coerce the complainant (who is the same age as the appellant)’. ‘As a general rule, non-verbal behaviour, when relied upon as an expression of consent, must be unequivocal. Where this is not the case, avoidance of serious risk-taking, and the defeat of confusion, miscommunication, and unfounded assumption demands that reasonable steps be taken, not themselves [involving] sexually assaultive activity, to clarify the limits of any agreement to sexual touching’. ‘A person is not entitled to take ambiguity as the equivalent of consent’ (Elizabeth A Sheehy ‘From women’s duty to resist to men’s duty to ask: How far have we come?’ (2000) 20 Canadian Woman Studies 98). One is not deemed to have consented because one does not protest or resist. ‘The “specious” defence of implied consent “rests on the assumption that unless a woman protests or resists, she should be “deemed” to consent … makes clear that this concept has no place in [South African] law’. A belief that ‘silence, passivity, or ambiguous conduct … constitutes consent is a mistake of law’ and provides no defence (Barton (op cit) at para 98). It is also a mistake of law to infer that the complainant’s consent was implied by the circumstances, or by the relationship between the accused and the complainant. In short, it is an error of law, not fact to assume that unless and until a woman says ‘no’, she has implicitly given her consent to any sexual activity.

Mr Coko did not take any steps to ascertain whether he had consent. The purpose of the reasonable steps’ requirement has been expressed in different ways, to protect the security of the person and equality of women who comprise the huge majority of sexual assault victims by ensuring as much as possible that there is clarity on the part of both participants to a sexual act. ‘The reasonable steps requirement “replaces the assumptions traditionally – and inappropriately – associated with passivity and silence”’. The ‘“reasonable steps” requirement was intended to criminalise sexual assaults committed by men who claim mistake without any effort to ascertain the woman’s consent or whose belief in consent relies on self-serving misogynist beliefs”. The common thread running through each of these descriptions is this: the reasonable steps requirement rejects the outmoded idea that women can be taken to be consenting unless they say “no”’ (Barton (op cit) at para 105).

‘What can constitute reasonable steps to ascertain consent? In my view, the reasonable steps inquiry is highly fact-specific, and it would be unwise and likely unhelpful to attempt to draw up an exhaustive list of reasonable steps or obscure the words … by supplementing or replacing them with different language’ (Barton (op cit) at para 106). Consent as requiring a conscious, operating mind, capable of granting, revoking, or withholding consent to each and every sexual act. The jurisprudence also establishes that there is no substitute for the complainant’s actual consent to the sexual activity at the time it occurred. It is not sufficient for the accused to have believed the complainant was consenting. He must also take reasonable steps to ascertain consent and must believe that the complainant communicated her consent to engage in the sexual activity in question.

‘That said, it is possible to identify certain things that clearly are not reasonable steps. For example, steps based on rape myths or stereotypical assumptions about women and consent cannot constitute reasonable steps. As such, an accused cannot point to his reliance on the complainant’s silence, passivity, or ambiguous conduct as a reasonable step to ascertain consent, as a belief that any of these factors constitutes consent is a mistake of law. … An accused’s attempt to “test the waters” by recklessly or knowingly engaging in non-consensual sexual touching cannot be considered a reasonable step. … It is also possible to identify circumstances in which the threshold for satisfying the reasonable steps requirement will be elevated. For example, the more invasive the sexual activity in question and/or the greater the risk posed to the health and safety of those involved, common sense suggests a reasonable person would take greater care in ascertaining consent’ (Barton (op cit) at para 107 – 108). ‘[Courts] should take a purposive approach, keeping in mind that the reasonable steps requirement reaffirms that the accused cannot equate silence, passivity, or ambiguity with the communication of consent. Moreover, [courts] should be guided by the need to protect and preserve every person’s bodily integrity, sexual autonomy, and human dignity. Finally, if the reasonable steps requirement is to have any meaningful impact, it must be applied with care – mere lip service will not do’ (Barton (op cit) at para 109).

‘A person consents to how she will be touched, and she is entitled to decide what sexual activity she agrees to engage in for whatever reason she wishes. The fact that some of the consequences of their motives are more serious than others’, such as in this case, she lost her virginity, ‘does not in the slightest undermine her right to decide how the sexual activity she chooses to engage in is carried out. It is neither her partner’s business nor the state’s. The complainant’s voluntary agreement to the manner in which the sexual touching is carried out, requires the complainant’s consent to where on her body she was touched and with what’ (Hutchinson (op cit) at para 88). ‘Society is committed to protecting the personal integrity, both physical and psychological, of every individual. Having control over who touches one’s body, and how, lies at the core of human dignity and autonomy’ (Hutchinson (op cit) at para 82). The courts must respect it.

Desmond Francke BIuris (UWC) is a magistrate in Ladysmith.

This article was first published in De Rebus in 2021 (Dec) DR 16.

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