A judgment overturning the rape conviction of a former paramedic who had sex with his girlfriend after she had expressly told him she was a virgin and did not want penetrative sex, has been sharply criticised by some legal bodies.

The regional court in Makhanda sentenced Loyiso Coko, then 23, to seven years' imprisonment for raping the Rhodes University postgraduate student in July 2018 at his home in the small city.

But two judges of the high court sitting in Makhanda overturned his conviction, ruling that the magistrate had made several serious errors in concluding that Coko’s version that he believed she had tacitly consented to his actions could not reasonably or possibly be true.

Acting judge Tembeka Ngcukaitobi, with judge Nyameko Gqamana agreeing, said that in this matter the issue of consent and intention were interrelated.

But the International Commission of Jurists — Africa has slammed their ruling.

“ICJ Africa is appalled to see that acting judge Ngcukaitobi has ruled in favour of ... Coko  where (he) argued that the foreplay he had with his ex-girlfriend indicated she had tacitly consented to sex,” tweeted the organisation.

“In a country with high rates of GBV and femicide, equating foreplay to consent is inherently harmful and ignores the realities of power dynamics between partners.”

The woman had testified that on the night of the incident she and Coko were at his home cuddling and kissing and she had made it clear to him she was a virgin who did not want penetrative sex. They had oral sex to which she consented after which he had penetrated her. She had indicated to him after penetration that he was hurting her.

Coko had admitted that she had told him that she did not wish to have penetrative sex and said he had no intention of ignoring this. But, he said, he had genuinely believed from her later conduct and body language that she was consenting.

Ngcuakaitobi said the magistrate had erred in ruling that because the woman was a virgin “something more” was required to demonstrate her consent, and that it was not sufficient for Coko to rely solely on her conduct as illustrative of consent.

“Consent means the same thing regardless of whether the victim is a virgin or not. It would set an unfortunate precedent if the law applied a different threshold to consent in respect of people who are not virgins.”

He said the law had established for the defence of consent to succeed, the consent must have been given “consciously and voluntarily, either expressly or tacitly”.

He said it was both Coko and the complainant’s evidence that she had been an equal and active participant with the kissing and cuddling. She had consented to the removal of her clothes and had not objected to oral sex.

“The only area where there was a dispute was after the penetration.”

Ngcuakaitobi said the state had failed to prove that Coko’s version that he genuinely believed there was at least tacit consent was false beyond reasonable doubt.

Lawyers for Human Rights tweeted that it was also disappointed in the judgment.

“Consent to one sexual act can never imply consent to all sexual acts,” it said.

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