A blind-spot in South Africa’s Sexual Offences Bill


Date: January 1, 1970
  • SHARE:

The writer argues that there is a blind spot in the Sexual Offences Bill in that it does not appropriately acknowledge the victims of compelled rape or forced sex. She says that when rape is used as a pattern of abuse and as a spectacle it has damaging effects on family members that are forced to witness the humiliation of spouses or lovers having to engage in sex in front of criminals.

Gender-based violence is synonymous with power relations. It is about the ability to dominate someone who is seen as less powerful or submissive. Usually, an extreme form of this dominance will play out in acts of violent crimes such as rape and intimate femicide. In times of wars where violence occurs due to lawlessness and impunity, gender-based violence is more rampant. In our global village this gender dynamic is insidious and is maintained through culture and law. It is because of this power imbalance or the war of the genders that as women’s rights groups we should be critical of the laws of our land and of perceptions that perpetuate this reality.
 
The Sexual Offences Bill has yet to be passed. The significance of having it passed is for our judiciary to have a clear mandate on sentencing of these crimes with a common purpose of eradicating gender-based violence in our society. This Bill has been up for review since May 1997 yet we have not been able to agree on a viable draft Bill that can tabled in Parliament. By prolonging the passing of this Bill we continue to send the wrong message out to the public about the severity of gender-based violence. Studies have shown that public messages of punitive measures have a deterring effect on such injustices.
 
In international law on war crimes, forced sex is an act that is enforced by the enemy and is adhered to by the victims. It is a strategy of war and genocide to humiliate and diminish the dignity of the opponent. Often secondary victims are family members who are forced to witness these crimes. In reports from Rwanda and Sierra Leone family members were forced to rape women at gunpoint, committing incest.
 
In 1993 and 1994 the International Criminal Tribunals for the Former Yugoslavia (ICTY) and for Rwanda (ICTR) recognised rape and sexual violence for the first time as an independent crime within the statutes. Due to a landmark decision by the ICTR, rape and acts of sexual violence were, for the first time, granted equal status as other offences. In the Akayesu judgement delivered by the ICTR rape was linked with the crime of genocide with the intent to destroy a group, whole or in part, psychologically or physically. International law further prohibits and criminalises, as either a war crime or crime against humanity, any serious act of gender violence causing the victim to engage in an act of sexual nature by force, or by threat of force or coercion against the victim or another person, or by taking advantage of a coercive environment by humiliating and debasing the victim, contrary to the most elementary principles of respect for human dignity.
 
The South African Sexual Offences Bill attempts to address compelled rape or “forced sex” by ensuring that perpetrators of such crimes are brought to book. However the term compelled rape is problematic and misleading. Firstly, compelled rape assumes that the active person is doing unto the passive person such as in the case of consummation of marriage. Secondly, “forced sex” (which is used by the UN ad hoc tribunals) assumes that one person is coerced into having sex with another for gain as in the case of acquiring food or security. Yet, what I am referring to is an act of sexual violence whereby all the participants in the act are victims. Definitions in this context are fuzzy because who is the violator and who is the violated? Onto whose body is the act of sexual violence being perpetrated? Who is actively dominating and who is passively being dominated? In compelled rape or forced sex, the perpetrators are the people actively abusing their power to ensure that victims are engaging in a psychologically traumatic sexual act under duress.
 
The blind spot in our Sexual Offences Bill is that our Bill does not appropriately acknowledge the victims of the crime. The Bill talks about (A) compelling (B) to violate (C) or (D) without further mention to (B) and the trauma of compelling (B) to actively engage in the act with (C) or (D). Local legislation should borrow from the UN ad hoc tribunals in contextualising the crime in relation to the damage it has on the individuals and the State. When rape is used as a pattern of abuse and as a spectacle it has damaging effects on the family members that are forced to witness the humiliation of spouses or lovers having to engage in sex in front of criminals such as in the case of the serial killer – Cedric Maake – who forced his victims to have sex with their partners before killing the men or when couples are hijacked and forced to have sex in front of their hijackers. Even though national cases of compelled rape are not in the context of war this is still a pernicious crime because it breaks down the fabric of a family and thus the fabric of society. Therefore, rape is not only a crime against humanity but also a crime against the State because it yields destructive consequences of humiliation, shame, stigma, ostracism and social rejection for the victims by their families and community.
 
Censure for compelled rape should carry the minimum sentence for rape, plus the extent of damage inflicted upon the witnesses and the victims. This Bill cannot afford to shy away from difficult technical aspects of the law that blur the lines of gender-based violence. An abuse of power in whatever form should be dealt with accordingly, ensuring that our post-conflict society is being restored and rehabilitated incisively. It is crucial to protect the lives of the vulnerable in our society mainly women and children by attempting to redress or shift the power imbalances that are systemic in our society. 
 
Nadira Omarjee is the Research Manager at People Opposing Women Abuse (POWA). This article is part of a special series of commentaries on the Sixteen Days of Activism Campaign produced through the Gender Links Opinion and Commentary Service that provides fresh views on everyday news.


Comment on A blind-spot in South Africa’s Sexual Offences Bill

Your email address will not be published. Required fields are marked *