I’ve been following the turbulent wake of Judge Mabel Jansen’s racist and inflammatory remarks on rape without surprise. In 15 years of intermittent but persistent research on the relation between rape narratives and myths and apartheid, I’ve been struck by the recurring phenomenon of judges (white and black) making staggeringly sexist and racist remarks in their judgments on sexual offences.
Although Jansen’s remarks were made outside the courtroom, they’re a reminder of how deeply we are poisoned by the overlap between racism and rape culture.
Rape culture, and the rape myths that prop it up, is so ubiquitous it bites to the bone of our private and public lives, including the criminal justice system. Here’s a representative sample of cases.
Judge frees ‘gentle’ rapist
In 2002, Cape high court Judge Selwyn Selikowitz, in sentencing a man found guilty of raping a child, handed down a suspended sentence on the grounds that the rapist had been “gentle”. This even though he accepted testimony that the rapist had locked his victim in a room, that she had cried during the rape and that he had threatened to cut her throat. He also accepted testimony that the child had bled afterwards. Nevertheless, he said: “There does not seem to have been any violence in the sense of threats of beating her or undue lack of gentleness.” The girl was eight. There was one media report (“Judge frees ‘gentle’ child rapist”, Sunday Times, November 17 2002) and zero outrage.
In 2003, an 18-year-old man received a suspended sentence in a Pretoria regional court for raping a five-year-old on the grounds that the child was allegedly sexually experienced. This, however, prompted a high court review of the case. The only media report I found (“Outcry leads to rape sentencing law change”, Daily News, March 28 2003) didn’t name the magistrate who had no problems accepting a Lolita defence.
In 2007, Mogoeng Mogoeng, now the chief justice, described a child rapist as having a “tender approach” in a judgment. It’s worth citing some of his words: “One can safely assume that [the accused] must have been mindful of [the victim’s] tender age and was thus careful as not to injure her private parts, except accidentally, when he penetrated her.”
Also in 2007, when suspending the sentence of a man found guilty of throttling and raping his wife, Mogoeng had this to say: “No real harm or injuries resulted from the throttling — the case is not comparable to a case where a lady comes across a stranger on the street who suddenly attempts to rape her.”
There was pushback, most notably when President Jacob Zuma nominated Mogoeng as the new chief justice in 2011. Public interest law non- profit organisation Section 27 lodged an objection on behalf of various gender justice groupings. This didn’t prevent Mogoeng’s appointment, but it seemed to snap him into at least the 20th century regarding women’s rights.
What happens when myths about sexual violence circulate?
Why do judges, proverbially sober and wise servants of the law, make such utterances? Are they unaware that they contradict basic human rights and the justice they are bound to uphold? And what of Jansen, whose racist comments demonstrated ignorance of five decades of research on rape?
This raises a broader question: What happens when the myths about sexual violence — that rapes are committed in dark alleys by armed strangers stalking women wearing short skirts — circulate in a society in which centuries of slavery and colonialism were followed by the legislated discrimination of apartheid?
One result is that rape myths are costumed in the worst kind of racist stereotyping, in which an apparent concern for sexual violence survivors becomes a justification for further racism — a vicious and self-fuelling cycle.
In these narratives, black men are framed as savage predators; black women are child-like victims whose only recourse is stoic endurance; white women are under constant threat from the spectre of the “black barbarian” drooling for their flesh; and white men mostly get a free pass.
Even though most rapes are intra-communal, focus falls on the more rare rapes in which a social barrier is breached: the rape of a white or middle-class woman by a stranger (usually black); the rape of a toddler or baby; rape that accompanies other crimes, such as hijacking or homicide.
The judiciary is by no means exempt from the toxic power of these myths. As long as we remain outraged only by those rapes in which the victim’s face is “bashed in with a brick” (the answer once given by a detective when asked how he judged whether women reporting rape were “credible”), as long as we believe that rapists are depraved monsters in alleys and as long as we ignore the cold truth that most rapists are members of our families and communities, we will use these same myths, consciously or not, to harden our worst racial and patriarchal prejudices.
Helen Moffett is an author, activist, academic and editor