On April 28, 2008, Eudy Simelane, a thirty-one-year-old lesbian from KwaThema township outside Johannesburg, was walking near her home after a night out with friends. Simelane had traveled the world with South Africa’s women’s soccer team, Banyana Banyana, and was training to become the ?rst female referee for the 2010 World Cup, hosted by South Africa. On her way homefrom the bar, however, she was attacked by a group of men. The men dragged her across the ground, stabbed her twenty-?ve times in the face, chest, and legs, and gang raped her, dumping her body in a ditch where they left her to die.
Simelane was the victim of “corrective rape,” an act of violence against women committed by men ostensibly to “cure” lesbians of their nonconforming sexual orientation—or “correct” it—the belief being that homosexuality is an imported white disease. Attackers, often family members, friends, or neighborsof the victims, say they are teaching lesbian women “‘a lesson’” by raping them and “showing them how to be ‘a real woman.’” The danger of corrective rape, though, is not limited to lesbians: because corrective rape is meant to “cure,” or simply to punish, nonconforming sexual orientations, corrective rape may affect not only gay women, but also any women with nonconforming sexual identities. In one alarming case, thirteen-year-old twin daughters were raped because their mother was a lesbian. Thus, any woman thought to be “too different” or insuf?ciently feminine and who fails to stay invisible is at risk.
What’s worse, what happened to Simelane is not an isolated incident: according to a recent broadcast, “at least 500 lesbian women are . . . victims of corrective rape each year” and, according to one study, “86% of black lesbians from the Western Cape said they lived in fear of sexual assault.” Although an increasingly “‘macho culture’” and continued misunderstanding of and animus toward homosexuality are likely responsible for the rise in corrective rapes, South Africa also lacks the tools to address these atrocities: only a “fraction” of cases are prosecuted and out of the thirty-one lesbian womenwho were reported murdered in homophobic attacks in a decade, there has been just one conviction. Moreover, the number of corrective rapes is likely higher than reported because crimes based on sexual orientation are not expressly recognized in South Africa and because underreporting is highly likely for crimes of sexual violence due to the lack of faith in and the prejudice of the police, the low conviction rate, trauma endured by rape victims at trial, and, for gay women, the fear of persecution for reporting.
Corrective rape both implicates a number of fundamental rights under South Africa’s 1996 Constitution and denies women the promise of a post-apartheid South Africa free from all forms of fear, hatred, and bigotry. In this sense, corrective rape is unique: not only is corrective rape more likely to affect poor, black women who live in townships, but gay women targeted for corrective rape are also more likely to ?nd themselves isolated, with little support, and generally vulnerable. These women are even less likely to report an instance of corrective rape when faced with society’s general opprobrium that continues to attach to homosexuality: the attitude of those who strongly disapproved of the inclusion of sexual orientation in the Equality Clause has not dissipated and many gay people, especially those from black and coloured communities, are not accepted by society generally. Moreover, because documented instances of corrective rape often involve serious physical abuse and even death and are performed by individuals or groups of men motivated by a fundamental misunderstanding of homosexuality and general animus toward gay people, there is a case to be made to compel the government to step in. Because South Africa was the ?rst country in the world to constitutionalize equality on thebasis of sexual orientation, because the women targeted for corrective rape are often among the most vulnerable and isolated in society, because the men who commit corrective rape are frequently motivated by a deep-seated animus toward gay people, and because the post-apartheid government has championed respect for human rights, South Africa, under the 1996 Constitution, is uniquely positioned to do more to protect women from the gross deprivation of human rights that is corrective rape.
That being said, my Note focuses on corrective rape. This is not to trivialize other forms of violence against women or imply that there is a hierarchy of violence, with some forms more worthy of protection than others. Furthermore, I acknowledge that most, if not all, of my analysis pertaining to the government’s af?rmative duty to protect women from corrective rape may be used to argue that the government has a positive, general duty to protect women from all forms of violence against women. My Note is intended to jump-start a conversation about corrective rape in particular and violence against women in general and to point out ways in which, because of the unique circumstances of corrective rape and South Africa’s distinct constitutional structure, the country is well placed to demonstrate real leadership and tackle corrective rape. As Constitutional Affairs Minister Mohammed Vale Moos noted, the 1996 Constitution “‘is a document that will no doubt serve as a beacon in constitutionalism not only here, but internationally . . . .’”
The real violence of corrective rape, then, is that despite South Africa’s legal success in protecting gay rights and despite the promise of a post-apartheid South Africa that values human rights, the government has not done enough to stop corrective rape. But to American students of constitutional law, South Africa has done nothing to violate the rights of women like Simelane—neither the state nor any of its agents attacked her, directly causing any deprivation of her constitutional rights. Nonetheless, what if constitutional doctrine could be utilized such that, even though the state has not directly caused harm, it may nonetheless be held responsible for failing to exercise its power in a way that gives effect to the rights of its citizens and protects them from some of the grossest forms of violence? My thesis is that, under the 1996 Constitution, the government is under such an af?rmative duty and must prevent, investigate, and punish corrective rape based on a synthesis of the Constitutional Court’s seminal decision in Carmichele v. Minister of Safety and Security and South Africa’s international legal obligations. Only by imposing this af?rmative obligation will women and girls like Simelane be able to fully and freely exercise their rights and enjoy the promise of a post-apartheid South Africa.
In Part I, I discuss the history of violence against women in South Africa andthe extent of such violence today, as background to corrective rape. I then summarize Carmichele, an answer to the violent legacy left over from apartheid. Carmichele revolutionized the common law and today requires lower courts to develop the common law when it fails “to re?ect the spirit, purport and objects” of the 1996 Constitution. Because the 1996 Constitution enshrines certain fundamental rights—such as the rights to life, equality, and freedom from violence—Carmichele requires courts to update the common law— including the duties government owes its citizens—to re?ect these fundamental values. Carmichele, then, provides a roadmap for legal action compelling the government to do more to protect women from violence, the only way to truly prevent corrective rape.
In Part II, I ?rst address the constitutional implications of corrective rape, which, because of the breadth and number of rights the 1996 Constitution deems fundamental, trigger the need for courts to analyze the common law to ensure that the government’s common law duties re?ect Bill of Rights protections under Carmichele. Second, I proceed to a general discussion of the contemporary debate over the horizontal application of fundamental rights: do constitutional rights merely limit abuses by the state or do they also touch on private conduct, equally capable of infringing fundamental liberties? A brief survey of this debate highlights two possible means of applying the 1996 Constitution to corrective rape to prevent it most effectively—either by charging those who commit corrective rape with violating the constitutional rights of their victims or, as in Carmichele, by developing the common law vis-a`-vis the government and placing the burden on the state to give effect to South Africa’s constitutional protections. I then argue why the latter is the ideal way to bring an end to corrective rape. Finally, I conclude by discussing the practical logistics of bringing a Carmichele suit.
In Part III, I discuss South Africa’s international legal obligations and the doctrine of due diligence, which requires af?rmative steps by government actors to prevent, investigate, and punish private human rights violations and may hold the state responsible for failure to satisfy these requirements. I contend that lower courts, having determined that the government’s common law duties must be developed under Carmichele, must look to South Africa’s international legal obligations. These courts should ?nd that the doctrine of due diligence ?ts neatly into the newly developed wrongfulness (or duty) prong of the test for delict—the South African equivalent of negligence in U.S. tort law—and af?rmatively obligates the government to better protect against corrective rape.
Finally, in Part IV, I outline the possible contours of the due-diligence-turned-wrongfulness-prong to suggest what South Africa’s af?rmative obligations to prevent corrective rape might look like, with an eye to addressing institutional and cultural barriers, which, if overcome, will help correct corrective rape.
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