When the Law has No Power: The “Corrective Rape” Situation in South Africa
Thursday, January 10th, 2013
South Africa has long been celebrated as the “Rainbow nation” because of her plurality and diversity. And, although South Africa was the first country to grant constitutional recognition to the protection of the rights of homosexuals, there appears to be a wide gulf between law and practice in this “progressive” state.
In recent times, there have been several cases of what has been termed “corrective rape” or “curative rape”. This refers to a situation where women who have sex with women (WSW) are sexually and brutally ‘punished’ by men for being gay and violating traditional gender presentation. Not long ago, on May 4, 2011, a 13 year old girl was raped near Pretoria, South Africa, because of her sexual orientation. According to the young victim, her assailant told her he was “curing” her of lesbianism. This is just one of the many attacks on the dignity and bodily integrity of lesbian women. It is worth noting that such incidents of violence against WSW are not peculiar to South Africa but have also occurred in other African states like Zimbabwe and Uganda, as well as in Jamaica.
Apart from the intervention of the South African Constitution, regional and international instruments exist to tackle this discriminatory practice. At the regional level, the African Charter on Human and People’s Rights, the content of which closely resembles international legal instruments like the International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social and Cultural Rights (ICESCR), and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), guarantees this freedom from discrimination in different forms under various articles.
Further, specific resolutions such as the UN Resolution on LGBTI rights exist. This resolution was proposed by South Africa, and it requests the High Commissioner for Human Rights to commission a study, to be finalized by December 2011, to document discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity, in all regions of the world. It also addresses how international human rights law can be used to end violence and related human rights violations based on sexual orientation and gender identity. .
Despite the preponderance of legislation designed to protect lesbian women from such dastardly acts of violence, in practice and effect, these laws are basically useless as cases of corrective rape (some even leading to death) are on the increase. It has been “recorded” that at least 31 lesbians have been murdered since 1998, and only one of those cases resulted in a conviction
It can be argued that this shocking reality in these African states is the result of the fact that the laws are out of touch with the culture of the people. There remains a strong sense of hatred targeted at homosexuals, not only amongst the citizens but also the administrators of the law/justice; this makes victims reluctant to bring their ordeals to the notice of the police, who are unwilling to prosecute. This is because many African nations are patriarchal in structure with pre-determined norms on gender roles and a consequent uneven distribution of sexual power between men and women in relationships. In addition, the system of apartheid that reigned in South-Africa (up until about 20 years ago) remains engrained such that the minds of the people are wired to ensure that marginalisation and segregation are common-place/practice. Also, the deeply religious nature of African societies has proven inimical to the development of LGBTI rights, since most religions see homosexuality as abominable. The combined effect of all these factors has rendered the laws ineffective – powerless!
But, is it necessary, as Devlin recognised, that law be based on existing moral principles? Shouldn’t the law also take a proactive stance in deciding what is right or wrong and what values should be most esteemed? It is my opinion that the law in this regard must carry out its function of “influencing” and “enforcing” the standards of conduct in society.
It is therefore crucial that certain legal and policy-based changes are made in order to ensure that the law does not lose its place in society:
Corrective rape is a hate crime to the extent that it is a violent crime motivated by hatred and prejudice towards lesbians or women who act like men. South Africa and indeed other nations would do well to strengthen their legal framework by passing hate crime legislation. However, for this to be effective, there must be specific mandated sentences for each crime perpetrated out of hate. This, no doubt, would reinforce the deterrence effect.
In addition, education and re-orientation programs are critical. It is unfortunate that in this day and age, people consistently undermine individual autonomy as it pertains to sexuality and some even go as far as justifying the unconscionable act of corrective rape. Governments must organise mass and aggressive campaigns to be targeted at ALL members of society from judges to lay men. This would go a long way to creating an atmosphere of democratic tolerance, which is the hall mark of any democratic state.
In conclusion, the law is a reformative tool that is used to facilitate orderly change. The potency of this tool is however hinged on the social context as well as enforcement mechanisms which serve as a bulwark.
Tags: Africa, Africa & Security, Africa and the Environment, African Culture, CEDAW, Damilola Wright, Educating Young Africans, human-rights, Lesbian, Lesbian Rights, Poverty, Pretoria, pretoria south africa, Public Responsiblity, Rape, rape and choices, Rape and the Law, Rape and The Society, religion, society, South Africa, South African Constitution
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