Tuesday, February 07, 2023

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 Abstract

Excerpted From: Waruguru Gaitho, Curing Corrective Rape: Socio-legal Perspectives on Sexual Violence Against Black Lesbians in South Africa, 28 William and Mary Journal of Race, Gender, and Social Justice 329 (Winter, 2022) (298 Footnotes) (Full Document)

 

WaruguruGaithoIn early March of 2020, shortly before Capetonians celebrated the Cape Town Pride festival, a lesbian woman was attacked by three men on her way to a shop in Lotus River, a suburb in Cape Town. They proceeded to force her into a nearby shack, hold her down, and gang-rape her to “correct her sexuality.” This is not a novel phenomenon. Nearly fifteen years earlier, Zoliswa Nkonyana, a nineteen-year-old lesbian in Khayelitsha, had been followed from a tavern she frequented by a group of young men who stoned her then took turns stabbing her with the same knife to “finish [her] off.” Less than a year later, on July 7, 2007, in a field close to the Johannesburg township where they lived, Sikazele Sigasa and Salome Massooa's bodies were discovered, tied up with their underwear, having been gang-raped and tortured, before being shot execution style through the head. Despite the heinous nature of these events, this pattern of targeted violence was only named in 2008, when the lifeless body of Eudy Simelane, a member of South Africa's national soccer team, an activist and one of the first “out” lesbian women in the Kwa Thema region, was found naked and face down in Johannesburg near a drainage ditch, having also been gang-raped, brutally beaten, and stabbed twenty-five times. Simelane's notoriety, the savagery, and motivation behind the attack galvanized the coinage of the term “corrective” rape.

Originally, corrective rape referred to rape perpetrated against lesbians by straight heterosexual men with the intent of “curing” their homosexuality, which was perceived as “unnatural.” Along that vein, Mieses described it as sexual and brutal sexual punishment of “lesbians and other women who have sex with women (WSW) ... for being gay and violating traditional gender representation.” Verbal abuse by the perpetrators before, during, or after violation of the victim makes the motive apparent, with overt statements such as “teaching a lesson,” or “showing them ... 'what a real man tastes like.”’ One survivor described it as an attempt by a male perpetrator to “turn you into a real African woman.” The term has now evolved to broadly encompass, per Doan-Minh, “the rape of any member of a group that does not conform to gender or sexual orientation norms where the motive of the perpetrator is to 'correct’ the individual.” Yet, the nature of corrective rape, including the specific vulnerabilities of particular groups, must also be elucidated and highlighted within its definition. Therefore, in addition to the “curative” intent element, corrective rape must also be described as a hate crime that combines gender-based violence and homophobic violence. In the South African context, this intersects with systemic racism due to its disproportionate impact on Black women.

Corrective rape is not unique to this geographical context; Eudy Simelane's death and the consequent mainstreaming of this atrocity in academic discourse and media reporting shone a spotlight on this. In the USA, for example, a lesbian in Georgia filed a civil lawsuit after she was raped by a county police deputy. The officer had forced her into her apartment at gunpoint and raped her, vowing to “teach her a lesson” and that “the world needed ... one less dyke and he was going to make sure that happened.” “[I]n Zimbabwe, a young lesbian woman was locked up by her family and forced to submit to rape by an older man to 'correct’ her orientation.” She was raped until she fell pregnant. In Jamaica, the attack of a lesbian and her friend in Kingston brought attention to the regular occurrence of corrective rape on the island. In India, the use of family members by parents to orchestrate the “correction” of their homosexual children, which makes legal recourse all the more difficult, has been reported. In Cameroon, an eighteen-year-old girl deemed a lesbian “witch” was chained to a wall and raped by a man who they then forced her to marry.

That being said, this Article delves into both South African law and society as they pertain to this sui generis phenomenon; a calculated choice to examine the context where its nomenclature was birthed. By conducting an in-depth analysis of both, in tandem, a clearer picture is drawn on the fundamental factors that enable and support corrective rape, and critical questions such as how they interact with each other to sustain or disrupt the current reality, are explored. The law on the books and the reality on the ground are considerably divergent, and social norms and attitudes lean heavier toward homophobia and reprobation of Black lesbians than they do toward equal treatment and acceptance.

While various scholars have made the case for the law as the fulcrum on which making meaningful progress rests, at present, most legal scholars studying corrective rape do not make the case for societal transformation as inseparable from legal developments. The solutions, perhaps unsurprisingly, are therefore often one dimensional, without consideration for the degree of complexity that the synergy between law and society produces. The observable inertia in the lived realities of Black lesbians in South Africa further strengthens the argument for the utility of a socio-legal approach. This Article therefore seeks to fill this specific gap, interrogating various issues in this relatively underexplored area via social-legal study.

Consequently, Part I situates corrective rape in South Africa by examining prevalence rates, and various related disparities, before analyzing how mainstream society perceives the LGBTQIA+ community, of which Black lesbians are an integral part. Part II hones in on the national legal framework of South Africa, reviewing national legislation and discussing the prosecution and adjudication of the crime of corrective rape under the criminal justice system. Potentialities for protection of Black lesbians under both the current legislative framework and an amended regime are explored. Part III then tackles societal transformation, by examining root causes of homophobia, gender-based violence, and systemic racism in South Africa, followed by an investigation into social interventions and their impact. The final section evaluates the outcomes of the study, broadly concluding that legal reform must be applied in tandem with social transformation, in order to be effective. To that end, a dual-pronged, cross disciplinary approach that effectively bridges the law-society divide is proffered.

Before proceeding further, several caveats must be discussed. First, it is important to note that corrective rape as the preferred lexicon has been contested due to the risk of being misconstrued as supporting the notion that lesbian women (and all other individuals who are subjected to corrective rape) should be, and are capable of, being cured. Mulaudzi argues that this in fact speaks to the way that homosexuality is perceived in South Africa. In this Article, the term corrective rape is used, as it is the most widely recognized parlance for describing this particular type of violence, but it should be read paying mind to this dissonance, as well as its nuanced meaning. Second, attention must be accorded to the terms “victim” and “survivor” which in and of themselves carry complex connotations. Spry asserts that these concepts “construct hegemonic linguistic categories” that deny a woman narrative agency by perpetuating a phallocentric perspective of their experiences, and by being reductive of the intimacy and diversity of sexual violence experiences. Essentially, feminist theory demands that self-identity be a central part of this discourse, and as far as third-party storytelling goes, there is no consensus (sans context) as to which terminology is preferable. Accordingly, this Article consciously uses both terms--victim and survivor--interchangeably, and if indicated, will respect the labels used by the womxn who have undergone this experience. Finally, womxn will be used interchangeably with women, as a nod to intersectional feminism and in recognition of the inclusion of trans women and women-aligned non-binary individuals in this research study. To be clear, the use of womxn is not aimed at invalidating the womanhood of trans women, or erasing the distinct identity of non-binary individuals, but is rather intended as an expansive and inclusive term that does not center cis-men.

[. . .]

Corrective rape is not a novel phenomenon. While the term was coined in 2008, reports citing the existence of this particular form of targeted, abhorrent violence emerged as early as 2006 and had likely begun much earlier. The definition of corrective rape has evolved since, and broadly encompasses two key features, viz: a corrective or curative element, and a component of hate or prejudice that determines who is targeted by a perpetrator, and why. Corrective rape is therefore best described as such: a hate crime entailing the rape of any member of a group that does not conform to gender or sexual orientation norms where the motive of the perpetrator is to “correct” the individual, fundamentally combining gender-based violence and homophobic violence. In the South African context, these biases intersect with systemic racism, producing a disproportionate impact on Black, queer, womxn. This Article strives to reconcile South Africa's seemingly robust legal advancements with a society whose mores and attitudes do not reflect the same progressiveness. This is done by identifying the substantive and procedural gaps that have allowed this specific type of violence against Black lesbians to go unabated, as well as by diving deep into the historical and sociological background of modern-day South African society.

In interrogating the legislative framework and criminal justice system of South Africa, the complex, contrarian-in-nature relationship that exists between the state and the victim of a sexual offense was highlighted. In particular, the dual role played by the state as both “a locus of control over women's sexuality and agency, as well as a site for protection, liberation and justice.” Constitutional entitlements as well as the reform of rape laws can, on the one hand, be described as the long-awaited and needed catalyst to revolutionize criminal justice responses to victims of sexual offenses. However, on the other hand, significant omissions such as “sexual orientation” as a ground contemplated in the “special measures” clause of the Equality Act, and the failure to expressly, and separately, outline corrective rape in the criminal law amendment Act, severely denigrate the impact of these laws, as applied to corrective rape in particular. Further, the absence of hate crime legislation entirely ignores the waves of extra harm caused by corrective rape, beyond the individual. That being said, the law can still be a site for protection; the enactment of hate crime legislation, framed pragmatically, as well as constitutional challenges to the state's current failure to curb this phenomenon, may yet be the portended elixir for a nation with a sexual violence pandemic.

With regard to society, the roots of homophobia, gender-based violence and systemic racism in South Africa run deep. While colonialism and apartheid are ostensibly dead, their legacies persist, intersecting with a strict post-colonial/apartheid conception of African culture to legitimize the worst forms of violence against women, specifically Black lesbians. While undeniably instrumental, uprooting these entrenched systems and structures cannot solely be the law's province. Social interventions are therefore inherently necessary to change patriarchal, heterosexist and homophobic sociocultural norms that facilitate and endorse at worst, and tolerate at best, the corrective rape of Black lesbians in South Africa. Further, not only would changing attitudes reduce the crime rate, but also trigger greater prosecution within law enforcement, and reduce secondary victimization of survivors. However, adopting a new cultural narrative and unlearning traditional norms around gender and sexuality takes time, and as demonstrated by the Theron Campaign, merits a very careful consideration of context. Two proven social interventions, edutainment and organized diffusion, are analyzed and found to be suitable, albeit unexplored, strategies to effectively transform social norms and attitudes around the corrective rape of Black lesbians in South Africa. That being said, the study of societies and community behavior is a complex field, and an appreciation of the intricacies involved in societal transformation warrants further research before the implementation of serious interventions to deal with corrective rape (and other social issues).


Waruguru Gaitho (she/they) is a human rights lawyer, researcher, and lecturer of law at Leiden University's Van Vollenhoven Institute of Law, Society and Governance.


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