The judgments that came out of the Constitutional Court this week in the case about rape and the doctrine of common purpose were important: they cleared up any confusion about whether the doctrine of common purpose can be used to convict for rape.
The main judgment of acting judge Rammaka Mathopo starkly exposes the irrationality, rooted in patriarchy, of distinguishing between murder and assault on the one side and rape on the other.
The separate concurring judgment of acting judge Margaret Victor detailed some of the legal rules that developed over the years, only later to be rejected, that showed the “embedded patriarchal gender norms in the procedural rules of evidence in relation to rape”.
Most crucially the judgments locate rape as a crime of patriarchal power; as systematic and structural, said Judge Sisi Khampepe in her separate concurring judgment.
On this, the Mail & Guardian can do no better than to quote Khampepe at length.
“Rape, at its core, is an abuse of power expressed in a sexual way. It is characterised with power on one side and disempowerment and degradation on the other. Without more being said, we know which gender falls on which side.
“The notion that rape is committed by sexually deviant monsters with no self-control is misplaced. Law databases are replete with cases that contradict this notion. Often, those who rape are fathers, brothers, uncles, husbands, lovers, mentors, bosses and colleagues. We commune with them.
“We share stories and coffee with them. We jog with them. We work with them. They are ordinary people, who lead normal lives.
“Terming rapists as monsters and degenerates tends to normalise the incidents of rape committed by men we know because they are not ‘monsters’, they are rational and well-respected men in the community. Yes, the abominable behaviour of these men is abhorrent and grotesque and the recognition that they are human does not seek to evoke sympathy — it serves to signify a switch from characterising rapists as out-of-control monsters, and centres the notion that rapists are humans who choose to abuse their power.
“The idea that rape is committed by monsters and animals may have adverse effects in that it may lead to the reinforcement of rape myths and stereotypes.For instance, labelling of this nature may lead to a cognitive dissonance when the actual rapist does not match the description of rapists. It has been said that this cognitive dissonance leads to the problematic questions like ‘person X is a good man, what happened to cause him to rape?’
“These questions have the effect of then centring the actions of the victims and not those of the actual rapist. This in turn reinforces the prevalent rape culture in South Africa and safeguards the patriarchal norms which normalise incidents of rape.
“Rape is not rare, unusual and deviant. It is structural and systemic.”
Victor adds that tackling rape as a product of patriarchy “should also break down structures that enhance patriarchal practices that in turn give rise to gender-based violence. This means focusing on the intersectionality of categories like gender, race, age, class and ability in relation to rape.”