Sexual violation: Education institutions need a law of their own

Although South Africa’s universities deal with sexual violence though self-regulated policies, it persists, which suggests that these policies, procedures and self-regulation are inadequate. (John McCann/M&G)

Although South Africa’s universities deal with sexual violence though self-regulated policies, it persists, which suggests that these policies, procedures and self-regulation are inadequate. (John McCann/M&G)

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“No one deserves to be raped!” Khensani Maseko, a student at Rhodes University, posted this on Instagram before she committed suicide on August 3. This laid bare the effect of violence against women in society, including on campuses.

READ MORE: Rhodes rages after suicide

And the prevalence of sexual violations on South Africa’s campuses raises questions about how universities deal with sexual violation cases.

Maseko reported the rape to the university in July. She was reportedly raped in May by a former boyfriend. Her parents took her home and she was to have returned to Rhodes to meet the support and investigation team just before she died. The university has suspended the alleged perpetrator.

The Criminal Law (Sexual Offences and Related Matters) Amendment Act of 2007 includes a range of sexual offences. In the workplace, the Labour Relations Act contains the code of good practice on handling sexual harassment, which encourages employers to develop and implement policies and procedures to create respectful, safe environments.

But there is no comparable code for places of higher learning.

Instead, universities rely on their own policies and on self-regulation. These policies include procedures to follow when a case is reported and a definition of unwanted sexual behaviour (non-verbal and verbal as well as physical contact, which ranges from touching to assault and rape).

But of great concern is the fact that research on the prevalence of sexual violations at technical and vocational colleges is non-existent. It is not known whether these institutions even have policies in place. This lack of regulation further underlines the urgent need for legislation to deal with sexual violations.

It is interesting to compare South Africa with the United States. In 1972, the US adopted Title IX of the Education Amendments, which addressed gender inequality in all institutions of learning. Then in the 1990s, the Supreme Court ordered that these institutions introduce steps to deal with sexual harassment and violence.

Notwithstanding that noncompliance with Title IX is a violation of the law, some amendments require educational institutions in the US not only to develop policies to deal with sexual assault, but also to provide certain assurances to victims. Other critical issues include obligations on institutions to take action to end the harassment, prevent its recurrence and remedy its effects. Failure to comply with Title IX results in institutions losing federal funds.

Research reveals that sexual violence on campus is convoluted in complexities that include rape myths, coercion, non-reporting of sexual violence and students’ responses to this violation.

The literature also reveals that many students seem unaware of these policies and — of greater concern — that they lack the knowledge to name sexual violations as such, even though such acts meet the legal definition.

There is a fine line between consent and coercion. In their article, Clarifying Consent: Primary Prevention of Sexual Assault on a College Campus, researchers AM Borges et al say that students’ “perceptions of consent vary according to personal experiences, victimisation, cultural influences and gender”.

The authors write that consent means voluntary or uncoerced agreement. There is no consent when there is a threat of harm or when there is an abuse of power or authority. There is also strong “correlation between alcohol consumption, sexual violence and rape culture” in academia.

The complexities of acquaintance rape are also central to issues of consent. Research shows that it is the most prevalent form of rape in academia.

Students’ fear of reporting sexual violations, and the stigma attached to it, results in under reporting, one of the main reason US lawmakers adopted Title IX.

“Many victims/survivors do not report their experiences to the authorities in their institutions” and the reasons include “socialised acceptance of rape myths, self-blaming absence and/or lack of trust in systems of redress, and fearing the educational/professional consequences that may result”, write G Finchilescu and J Dugard in their research titled Experiences of Gender-Based Violence at a South African University: Prevalence and Effect on Rape Myth Acceptance.

Any moves to protect students from sexual violation and deal with offenders must take into consideration the context and the complexities involved in sexual violations on campuses. Developing legislation should begin with a review of empirical studies.

Although South Africa’s universities deal with sexual violence though self-regulated policies, it persists, which suggests that these policies, procedures and self-regulation are inadequate.

Higher education institutions must be guided by the law.The need for national legislation and a code of conduct is urgent.

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