/ 7 December 2016

​What amounts to rape is not widely known

There is a distinct lack of education and understanding about issues of consent in South Africa, as I realised when watching the programme Golddiggers on e.tv.
There is a distinct lack of education and understanding about issues of consent in South Africa, as I realised when watching the programme Golddiggers on e.tv.

As we reach the end of the 16 Days of Activism for No Violence against Women and Children on Saturday, and with a renewed awareness of the violence that women and children face daily, we have to address some of the faulty perceptions many people have about rape.

There is little public awareness about its true nature and of the different forms it can take. Three United States department of justice researchers, Bonnie Fisher, Francis Cullen and Michael Turner, in their report Sexual Victimisation of College Women, write that “rape myths allow us to believe that a ‘real rape’ is one in which a victim is raped by a stranger who jumps out of the bushes with a weapon, and in which she fought back, was beaten and bruised, reported the event to the police, and had medical evidence collected immediately”.

Different types of rape, including statutory rape, spousal rape, corrective rape, rape by deception and acquaintance rape, to name only a few, demand that they be dealt with within their specific contexts. For example, the kind of rape alleged by Khwezi that President Jacob Zuma had subjected her to is a perfect illustration of acquaintance rape.

She did not behave like a “normal” rape victim because her alleged assailant was known to her, she trusted him, and she probably blamed herself to some degree for the incident. She was never going to behave like a woman who was raped by a stranger who had lunged out of the dark waving a dangerous weapon.

In Khwezi’s case, asking for transport money after the alleged rape would be normal — contrary to Economic Freedom Fighters leader Julius Malema’s claim that a woman who is raped would never ask for transport money from her attacker the morning after it had happened.

Fisher et al found that elements present in “real rape” do not exist in acquaintance rape, writing that “many acquaintance rape situations involve [the facts that] the victim had been drinking, did voluntarily go with the man to his apartment or room, was not threatened with a weapon, did not fight back, did not report the event to the police immediately, did not have medical evidence collected, and may have even had sex with the assailant voluntarily before”.

There is a distinct lack of education and understanding about issues of consent in South Africa, as I realised when watching the programme Golddiggers on e.tv.

In it, a young woman, who had high hopes and a good prospect of going to university, had her dreams dashed because of a lack of funds, among other things. But she found apparent aid in a man named Clement, an employee at an organisation that assists students.

He promised to help the young woman — at a price. He said, in return, his price was sex with her. Daunted, the young woman (who was a virgin, though this is not relevant) consented.

Afterwards, like many other women, she went home and immediately took a long bath. She was painfully unaware that she was a rape victim and did nothing about it then.

Clement went on with his life. It would seem he was unaware that his act constituted rape, irrespective of whether or not he made good on his side of the deal.

Eventually, the young woman told her mother and they went to the police to lay a charge of rape.

At the station, they were assisted by a detective but, after taking her statement, he told them it was not rape because no force had been involved and, “at the very least”, there was also no “lack of consent”.

Given the facts, the detective was mistaken. Although the girl consented to sex, in terms of the sexual offences legislation, this does not constitute consent.

In the Sexual Offences and Related Matters Amendment Act 32 of 2007, “consent” means voluntary or uncoerced agreement.

The Helen Suzman Foundation defines “uncoerced consent” to be void of “physical force, deceit, prior agreement, or any other manipulations”.

According to the Act, there is no consent when there is a “threat of harm” against the complainant, or when there is an “abuse of power or authority” by the accused. Importantly, there can never be consent in situations in which the complainant is “incapable in law of appreciating the nature of the sexual act” as a result of being “asleep; unconscious; [or] in an altered state of consciousness” as a result of “influence of any medicine, drug, alcohol or other substance”.

The law is thus clear on this issue, but it is uncertain that the law is fully understood by rape survivors or the criminal justice system.

In an ideal country, it would be sufficient to report the perpetrator and let the law take its course, but we do not live in an ideal country.

Palesa Lebitse is a writer, feminist and law student with an interest in human rights.