Corrective rape of black African lesbians in South Africa: the realisation or oversight of a constitutional mandate?

Abstract

In South Africa corrective rape is committed by African men as a form of social control to cure women of their homosexuality. The problem with corrective rape is that the victims of this crime are mainly black African lesbians, particularly those in townships who are seen to challenge patriarchal gender norms. Therefore discrimination on the basis of gender, race, sex and sexual orientation is called into play. Section 9 of the Constitution provides that the state may not unfairly discriminate directly or indirectly against anyone on one or more specified ground which include gender, race, sex and as well as sexual orientation. Further, no person may unfairly discriminate against anyone on one or more of the same specified grounds. Thus, the black African lesbians affected by corrective rape are protected by the equality provisions of the Constitution upon which discrimination is prohibited. In addition, the impact of discrimination on lesbians is thus rendered more serious and their vulnerability increased by the fact that the victims are black women. In the context of black African lesbians, it is believed that these women are a threat to the manhood as well as cultural beliefs of the perpetrators. Perpetrators, therefore, can justify their actions on the constitutional right to culture. This position obviously reopens the debate on the conflicts between African culture and tradition with human rights within the context of corrective rape which ultimately continues to militate against the adequate protection of women’s rights. Against this background, this research will focus on how South Africa is balancing its constitutional mandate in relation to the black African lesbians affected by corrective rape. It will be argued that for victims of corrective rape to be adequately protected it is necessary to define corrective as a hate crime and not merely the crime of rape. In addition, it will also be argued that because there is an inherent conflict between the right to culture of the perpetrators and the constitutionally protected rights of the victims of corrective rape, courts, in enforcing the rights of these victims should also address this conflict. The importance in recognising this conflict lies in the fact that one needs to take into account that both the perpetrators and the victims are protected by the Bill of Rights and that one cannot disregard the importance of either of their rights.