Academic journal article South African Journal of Philosophy

Sexual Specificity, Rape Law Reform and the Feminist Quest for Justice1

Academic journal article South African Journal of Philosophy

Sexual Specificity, Rape Law Reform and the Feminist Quest for Justice1

Article excerpt

Abstract

Recent rape law reform is most saliently characterised by a turn to gender neutrality in its definition of the crime of rape. The few possible advantages of a gender neutral approach to rape are offset by a series of disadvantages regarding gender justice when viewed from a feminist perspective. Formal gender neutrality does not safeguard against the effective influence of pervasive and enduring symbolic constructions pertaining to male and female sexuality and of a normalised hierarchical binary constructed between the two sexes, in particular where sexual relations are concerned. Such efficacy may impede justice for both male and female victims of rape. The question about the place of sexual difference or rather sexual specificity within feminist theories of justice should be considered anew in light of this critical analysis of gender neutrality in rape law.

You don't understand, you weren't there, says Bev Shaw. Well, she is mistaken. Lucy's intuition is right after all: he does understand; he can, if he concentrates, if he loses himself, be there, be the men, inhabit them, fill them with the ghost of himself. The question is, does he have it in him to be the woman?

David Lurie in Disgrace (Coetzee 1999: 160)2

Possible advantages of gender neutral rape laws

Much recent rape law reform, such as the South African Criminal Law (Sexual Offences) Amendment Act 32 of 20071, is most clearly characterised by a move towards gender neutrality. While this gender neutral approach in rape law has some advantages, it also represents a number of dangers when viewed from a feminist perspective. The potential advantages include the following.

(1) A gender neutral definition of rape in law clearly facilitates an acknowledgement of, and attention to, male rape victims, and this constitutes a definite improvement upon the older law which made the rape of men a legal impossibility. This is good for men in general, since it both supports movements for greater justice for men who are rape victims, and acknowledges that men are also sexually vulnerable. In an influential article, Lara Stemple (2009) clearly shows how male rape victims are disadvantaged through being systematically neglected by UN and other policies and approaches to victims of sexual violence in conflict zones. Since feminism has never, on my understanding, been about support for injustices against men but rather the opposite, feminists should unequivocally welcome the full and equal legal recognition of male rape victims as expressed in our reformed law.

(2) The new gender neutral definition of rape in the Act also makes possible the explicit legal acknowledgement of female perpetrators of rape, along the lines of the ICTR, which, in June 2011, convicted former Rwandan Minister for Family Welfare and the Advancement of Women, Pauline Nyiramasuhuko, for 'incitement to rape' among other crimes against humanity, for her role in the mass rape of Tutsi women and girls during the 1994 genocide (see Sjoberg 201 1:25). I return to the issue of female perpetrators below, but for now it suffices to note that the possibility and actuality of some women's complicity in the rape of other women (and some men) should be legally acknowledged and punishable. With less emphasis being placed in international law on actual, physical involvement in rape and more on the commanding of rape as a weapon of war (Campbell 2007), it has become clearer to see how women within military command structures can be involved in war time rape. But it may also open our eyes to women's involvement in different forms of sexual violence in peace time contexts, such as women's role in the trafficking of women. These developments are important, because they entail an acknowledgement of women as sexual agents and as capable of aggression and violence, even sexual violence (cf. Boshoff2011).

(3) At the same time, the gender neutral Act employs a broader understanding of sexuality and of sexual injury than the older common law, which limited the definition of rape to the penetration of a vagina by a penis (Appendix 1, South African Law Commission Discussion Paper 85, Project 107, Executive Summary, available at http://www. …

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