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.
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.
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.
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 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.
How would McKaiser know?
No need to change the law. Each case must be judged on its own merits. There are many rapists who deserve to have the book thrown at them, and there are many innocent men serving long prison terms after being wrongly accused. Few get lucky when truth comes out b4 they're dead.
He shoulda let this one pass👣
I've read brilliant articles on both sides of this argument and I agree with the judgement of Ncuka-Itobi. I read somewhere that the two proceeded to exchange pleasantries after the event. Which by no means implies that rape was not committed. However, there is reasonable doubt.
It would be best that people don't just write articles but assist with higher court appeals , other wise it just becomes an academic exercise where we feel good about our thought processes but don't effect any real legal change
So Eusebius is now a lawyer 🤔
The judgement and what seems to be evidence appearing in social media after the ruling does suggest, society need to have a joined conversation about protection of both women and men on the issue of rape
You now a legal expert
Thank you Eusebius McKaiser for this article!!!
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