Classifying 'Corrective Rape' as a Hate Crime in South Africa

South Africa has been experiencing a series of incidences of rapes in which homosexuals are targeted and often murdered. Combating 'corrective rapes’ is a matter of urgency and this article outlines some legal remedies in this regard.

Emily Kinama, Intern, Security Sector Governance Programme, ISS Pretoria Office

Recent media reports have shown a rise in attacks against lesbian women in townships across South Africa. These attacks indicate the continued existence of homophobia in South Africa coupled with alarming rates of violence against women.

Homophobia is hate or negative attitudes directed towards lesbians, gays, bisexual, transgender, or intersex (LGBTI) groups. In order to combat ‘corrective rape’ an emphasis must be placed on combating violence against women in general and on the transformation of homophobic attitudes and behaviours. Fundamentally, ‘corrective rape’ has two dimensions, violence against women and homophobia. The underlying reasons relating to violence against women therefore also have to be dealt with.

South Africa guarantees the right to equality and prohibits discrimination on the basis of sexual orientation under section 9 of the 1996 Constitution. It is also one of only eleven African countries that is a signatory to the 2008 United Nations Declaration on Sexual Orientation and Gender Identity and one of five countries in the world to recognise same sex unions. Three years ago, a report on ‘corrective rapes’, in South Africa by Action Aid stated that there have been over 31 reports of killings of lesbians committed over the past decade, of which only one had been successfully investigated and prosecuted. With all its progressive laws in place more still needs to be done to address this issue.

On the 24 April 2011, Noxolo Nogwaza, a 24-year-old lesbian and mother of two, was found beaten and stoned to death in Kwa Thema township, outside Johannesburg.  There was evidence at the scene of the crime that she had been raped. Her murder occurred barely four weeks after the murder of 20-year-old Nokuthula Radebe. A few weeks later, a 13-year-old lesbian girl from Atteridgeville in Pretoria became the latest victim of ‘corrective rape’. Prior to these reports, was the 2008 brutal gang rape and murder of Eudy Simelane in Kwa Thema. She was formerly part of South Africa’s national women’s soccer team Banyana Banyana. Evidence showed that she had been stabbed 25 times.

The sad reality is that these are just a few of the many victims of this form of violence against women in South Africa. In addition, the only case to have been prosecuted and perpetrators sentenced to imprisonment was the one involving Eudy Simelane. Though the case was hailed for setting a precedent regarding the prosecution of the crimes, the judge stated in the sentencing that the victim’s sexual orientation was not a motive for the commission of the crime. While investigating the recent murder of Noxolo Nogwaza, the Tsakane police, according to the Mail and Guardian (7/5/2011), stated that there was no evidence proving that the murder was a hate crime. Two months ago, activists were angered by the criminal judicial system, when the case relating to the 2006 murder of 19-year-old lesbian Zoliswa Nkonyana was postponed for the 32nd time leaving nine suspects un-sentenced.

‘Corrective rape’ is a term that was first used in South Africa in the early 2000s by human rights organisations as a result of the increase in the rape of lesbians. Another term that is also used is ‘curative rape’. For purposes of this piece, ‘corrective rape’ maybe referred to as an act of non-consensual sex, directed towards lesbian women or gay men by persons of the opposite sex with the aim of either punishing them or ‘curing’ and ‘correcting’ their sexual orientation.  Media reports have shown, however, that in South Africa it is mostly black lesbians from the townships that are victims of this crime. The report on ‘corrective rape’ in South Africa by Action Aid (2008) also stated that this group of females is at a higher risk of being attacked due to socio-economic and cultural discrimination that they face.

Recently the Department of Justice and Constitutional Affairs spoke out against these vicious attacks. A National Task Team was created with the aim of dealing with the rise in ‘corrective rapes’. The team is set to begin its work on 15 July 2011. Although the government has made a positive step in the right direction, it has been criticised by human rights organisations for its delayed reaction.

More practical measures should have been taken earlier on to prosecute and reduce the prevalence of this crime. It was only through pressure by civil society and individuals that government was forced to act. Within 6 months, a petition on the website, which was started by an activist in Cape Town, contained over 170,000 signatures from people in 163 countries. The petition challenged the South African government to classify ‘corrective rapes’ as ‘hate crimes’. The above reports reflect how the criminal justice system has major loopholes and has failed in either delivering justice or recognising that the victims were targeted because of their sexual orientation.

‘Corrective rape’ needs to be classified as a ‘hate crime’. The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 prohibits ‘hate crimes’ committed against persons of a specific group. Hate crimes are those crimes that target persons belonging to a specific group.  Section 2 of the Act cites ‘the prohibition of advocacy of hatred based on race, ethnicity, gender or religion that constitutes incitement to cause harm’. It does not refer to specifically to sexual orientation. Once this type of crime has been classified as a ‘hate crime’ then the police and the criminal justice system will be obligated to treat the crime with special care and the cases related to homophobic attacks can be brought before the Equality Court.

The creation of public awareness in order to educate communities about homophobia and the respect of the rights of LGBTI’s will reduce attacks. The recently formed National Task Team therefore has to ensure that the relevant bodies implement the laws regarding the discrimination of persons based on sexual orientation.

Seventeen years into its democracy, South Africa should not be tolerating crimes of this nature. The freedom we gained was meant to be a freedom for all, irrespective of race, creed, disability, gender or sexual orientation. We all have a responsibility to ensure that we live up to this noble goal.

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