The inclusion of intention within the definition of rape reintroduces the requirement that there must be bodily proof that the sufferer was overpowered. (Getty)
“Not all persons are seen as possible-to-rape; it must be somebody who might be raped. Intercourse staff, wives, slave ladies and men are all classes of people who have at totally different phases been positioned within the class of ‘impossible-to-rape’.” — Educational, author and gender activist Pumla Gqola
The current constitutional problem of the definition of rape by Embrace Challenge is a welcome alternative for our courts to handle the implied defence contained within the present definition of the crime of rape. Whereas each the Embrace Challenge and the Centre for Utilized Authorized Research make highly effective arguments for the elimination of “intention” within the definition of rape, it will be important we perceive the methods wherein the present definition reinscribes archaic “pressure and resistance” necessities of rape. Briefly, the inclusion of “intention” reintroduces notions of “manifest resistance” into regulation. “Manifest resistance” within the context of the present definition of rape is a requirement based mostly on archaic understandings of the crime of rape. “Manifest resistance” required that for the crime of rape there must be proof of bodily overpowering of the sufferer by means of violence. Moreover, “manifest resistance” implied that if a lady didn’t actively “resist” the perpetrator, she was both complicit in her personal violation or was mendacity about her stage of having fun with the violation. As SW Mills has argued, this conventional conceptualisation of rape ascribes sure duties to ladies, thus constructingthe “ideally suited sufferer” as one who places up the utmost resistance to guard her honour.
The idea of honour in rape is one that’s embedded within the origins of the crime of rape and has no house in a constitutional democracy, which ensures the best to dignity, equality and bodily autonomy. Briefly, intention within the crime of rape is unconstitutional as a result of it reinscribes the now unconstitutional and misogynist cautionary rule, which required courts to deal with the proof of victims with warning. Intention reinscribes this rule by means of forcing the courts to analyse whether or not the sufferer indicated non-consent. This was significantly evident within the Coko v S case the place the court docket subjected the sufferer’s actions and phrases to unbelievable analytical scrutiny.
Additional, it reinforces patriarchal notions of girls’s our bodies and their violation as being violations of males’s property moderately than being a violation of the ladies’s dignity and bodily autonomy. Thus, for us the true operate of intention within the definition of rape is to self-discipline, reputable violence and organise the lives of girls and “women-others” — these current exterior of binary concepts of womanhood and manhood in service of and to excuse the violence of males and poisonous masculinity.
In different phrases, our present definition of rape, significantly the flexibility of males to make use of the intention/subjective perception defence constructions, constructs, and sustains relations of oppression of girls and “women-others” by means of narratives about what ladies are, who they’re, what they are often and prescribes punishment for individuals who don’t adhere to those relational prescriptions. Moreover, it negates the experiences of violence of those that, due to their age, incapacity, career (sex-workers) and sexuality, will not be in a position to “resist” for concern that such resistance would lead to excessive violence and even loss of life (homophobia motivated rape).
Consequently lesbians, female males, transgender ladies, sex-workers, the previous, the disabled and disfigured are silenced and pushed in direction of vulnerability, thus exposing them to larger possibilities of violence and loss of life. Subjecting ladies’s and women-others’ expertise of violence to the query of a perpetrator’s intention undergirds the logic of gendered oppression. The concept a perpetrator can use his subjective perception of consent and lift intention as a defence in circumstances of rape is a traditionally embedded excuse that seeks to justify and bonafide males’s sexual violence towards ladies and “women-others”.
Subsequently, our present definition of rape doesn’t deal with the foundations that reputable the disposability of girls — male sexual violence and poisonous masculinity. Advocacy for increasingly legislative reform merely builds on this gendered relations legitimating the logic of patriarchy, which is constructed on the disposability of girls. By disposability we imply these logics inside patriarchy which prescribe “how” and “when” a lady is known as helpful and due to this fact “deserving” of the safety of the state. Rendering ladies who fall in need of being “correct ladies” disposable and due to this fact unrape-able.
To grasp how the defence of subjective perception capabilities and embeds the logic of rape in our court docket processes, we should perceive the historical past of rape as against the law. Traditionally rape was a property crime — against the law towards the property of the daddy or the wrongful use of property belonging to a different patriarch— the husband. Subsequently, for a lady to be “rape-able” she should fulfil the requirement of being “worthwhile” to the patriarch (father or husband). The “value” ladies have needed to pay for defense by males towards different males has been monogamy and chastity/purity. Consequently ladies and “women-others” — lesbians, wives, non-virgins — couldn’t be raped. Within the phrases of Gqola, they had been unrape-able. It’s our view that the operate of the requirement of intention within the definition of rape is to guard males from having their property devalued or being denied the flexibility to benefit from the full worth of their property — to not shield the dignity of girls and “women-others”. In different phrases, intention permits males to weaponise a lady’s worth (or lack thereof) towards her. An instance could be within the case the place a sex-worker retracts consent or within the case of a spouse who refuses to consent to sexual activity together with her husband.
Moreover, the requirement of intention reinscribes a lady’s personal culpability in her personal violation. Briefly, intention/subjective perception as a defence reinforces the requirement for girls to “manifest resistance”, as a result of there may be an implied requirement that the shortage of consent should present on her physique by means of figuring out the extent of violence the perpetrator used to subdue and violate her.
In our minds, this “manifest resistance” is what the excessive court docket judgement in Coko v S was grappling with. That is the rationale the decide, Tembeka Ngcukaitobi, searched the testimony of the survivor with forensic exactitude — he searched her physique of proof for the violation/lack of consent and he couldn’t discover it.
Intention reinscribes not solely the “manifest resistance” requirement but in addition the cautionary rule that places ladies’s testimonies in regards to the violence they expertise beneath extreme scrutiny. It questions ladies’s understanding of violations perpetrated towards them. Because of this, overwhelmingly, ladies categorical being subjected to dismissal, insensitivity, exploitation and traumatic cross-questioning each earlier than and through the trial. That is seen within the Omotoso trial the place the defence requested the sufferer the dimensions of Omotoso’s genitals, why the sufferer didn’t discover it suspicious that she was locked in a room alone with a person and why she didn’t scream.
Understanding the historic context inside which rape as against the law emerges helps us perceive the unarticulated disciplinary norms the initiating judgment of Ngcukaitobi was struggling beneath and the failures of the supreme court docket of enchantment’s judgment to chart a distinct chance by means of eliminating the requirement of intent within the crime of rape. While we perceive this was in a roundabout way earlier than the court docket, the court docket may have provided a way more decisive touch upon the matter. Merely put, the concept an individual might be unintentionally sexually violated must be a misnomer beneath our human rights-informed constitutional framework. It is because the present chance of a scarcity of intention as a defence reformulates it and presents it again to us as “progressive change”. Perpetuating the patriarchal relations embedded throughout the current definition of rape, which requires the court docket to evaluate whether or not the perpetrator may have unintentionally sexually penetrated the sufferer. Merely put, the inclusion of intention modifies the thought of consent. Subsequently requiring a not responsible verdict ought to the court docket discover there was no intention to non-consensually rape the sufferer. Briefly, intention re-encodes the boundaries of patriarchal oppression and violence, requiring ladies and women-others to current themselves as “ideally suited victims” and punishing those that will not be.
Busisiwe Deyi is a lecturer within the Division of Jurisprudence, College of Pretoria, and Mbuyiselo Botha is the host of the podcast Tea with Botha. Each are former commissioners of the Fee for Gender Equality and write of their private capacities.