Crime against sexual orientation : a study of 'corrective' rape within the South African context

Abstract

This article delves into the murky waters of homophobic victimisation within the post-Apartheid South African society. It draws attention specifically to a sub-group within the lesbian, gay, bisexual and transgender (LGBT) community by critically examining the phenomenon of ‘corrective’ rape that has befallen them in the recent past years. The article seeks to achieve a critical examination of ‘corrective’ rape in South Africa a threefold manner. Firstly, and as a point of departure, the article takes a look at some of the prominent cases of ‘corrective’ rape that have not only captured the attention of the nation, but also that of the international community. It looks not only at the sensational stories published by media but also at the response of the criminal justice system to the cases that have surfaced before it. In so doing the article aims to establish that ‘corrective’ rape is a reality for lesbian women in South Africa. Once the reality of ‘corrective’ rape has been established, the article seeks to then answer the questions as to whether or not ‘corrective’ rape can be and should be categorised as a ‘hate crime’ offense. These two questions are addressed in a comparative manner, by examining the definition of ‘hate crime’ and the definitional characteristics of the latter. These are then applied to ‘corrective’ rape within the South African context in an attempt to establish whether or not the latter is truly a ‘hate crime’ and should be seen and dealt with as such by the South African legal system. In this part of the examination, the by-question of whether or not the South African legal framework should recognise ‘hate crime’ offenses as a separate category crime filters through. However, the latter question is only addressed as the article progresses. From the theoretical, the article returns to the current reality to not only comprehensively discuss the national and international legal measures that have been put in place to protect lesbian women from homophobic victimisation but also to discuss the reasons why these legal measures are allegedly failing South African lesbian women – this regardless of the heart and soul that has been poured into the South African constitutional jurisprudence. The aim of this part of the examination is to establish what, if anything at all, can still be done to offer better protection to lesbian women all across the nation, regardless of their social class. Having completed all three of the above and in the penultimate, the article makes recommendations that touch on both the law and human rights education policies of the nation. The main focus of the author’s submissions is on reform as well as education and awareness. These recommendations are made in the hopes that in the nation’s endeavor to provide better protection for the most vulnerable in our society these will be progressive steps. The article then concludes with final thoughts as to what has been learnt and established in each substantive chapter. Copyright