‘…it was heart-breaking that the LGBT community were being treated as second-class citizens in their own country, whereas they had a right to live however they pleased as their rights were enshrined in the constitution.’ [1]

1. INTRODUCTION

South Africa has become notorious for its high levels of violence and violence against particularly women and children. There has also been increasing incidents of violence against foreigners and lesbian, gay, bisexual, transgender, intersex (LGBTI) persons with particularly gruesome attacks on black township lesbians.

There has been much media coverage and pressure from LGBTI organisations on government to respond to what is considered by some as epidemic proportions of sexual violence.

LGBTI persons, for the purpose of this paper, are considered a sexual orientation interest group stratified by class, race and gender, with black, township, lesbians at the short end of the stick. Not-withstanding South Africa’s extensive rights protection system the rights of black lesbians are not respected.

2. APPROACH

In trying to sharpen our understanding of the problem, we try to sharpen our tools for addressing the problem more effectively. The crime of rape is a violation of the basic human rights of the victims irrespective of their gender. Sexual violence against black lesbians is therefore considered in this paper from the perspective that it is a violation of basic human rights afforded to all citizens. We are not arguing for additional rights but rather, the need to uphold existing rights. The act of rape is but the start of the indignity suffered by victims of rape, predominantly women at the hands of predominantly male perpetrators. The worst is still to come, as victims have to muddle their way through a justice system that is insensitive to the personal trauma experienced by victims.

3. VIOLENCE AGAINST BLACK LESBIANS IN CONTEXT

In attempting to understand problems, it is important that we understand the context that will enable us to understand why the problem exists in the first place. Context is also important in the design of appropriate solutions for addressing problems, in this case, sexual violence against black lesbians.

3.1 Sexual orientation and identity

The South African Human Rights Commission Equality Report defines a lesbian as a:

‘female-identified women who seek caring, supportive and sexual relationships with other female-identified women, transgender women or intersex women’. [2]

Sexuality forms part of highly complex social discourses which derive their meanings from their historical contexts. [3] Context, especially the level of perceived risk, seemed to greatly influence the extent to which gay men and lesbian women choose to be open about their sexual identity. [4]

Throughout Gibson’s review of coming out models, it became clear that a strong emphasis is placed on the universal nature of the coming out process and how people develop sexual identities in similar ways, regardless of gender, race, or other defining features. (Gibson, 33)

3.2 HISTORICAL CONTEXT

South Africa is predominantly a heterosexual society. We see, in this period, what appears to be some form of identity politics playing out through sexual violence – black lesbians are being taught a lesson through ‘corrective’ rape, if they dare ‘come out’ in the townships. It is in the townships where we witness most intensely the most heinous atrocities, such as when Duduzile Zozo ‘was found dead by her mother, Thuziwe, half naked with a toilet brush jammed into her vagina in Thokoza, in the Gauteng East Rand in June 2013.’ [5] What is the context for such brutality?

Prior to 1994 homosexuality was illegal under the Immorality Act of 1957, as was mixing of different race groups as categorised under the system of brutal Apartheid laws. Masculinity has become entwined with a culture of violence in South Africa. What started as state violence during apartheid has taken on a variety of forms in the post-apartheid period (Britton, 2006).

Gibson [6] sketches a pre-democracy (1994) picture of South African sexual cultural history where gay white men were considered to be in a position of privilege and socialised mainly in private clubs. Coloured communities especially in the Western Cape have a rich ‘moffie’ history – which involved challenging gender stereotypes. (Gibson 6) While in the black communities the focus has been on lesbian sangomas and homosexual activity among mineworkers. (Gibson 6)

Lesbian and gay organisations associated with the anti-apartheid struggle ensured their social and political status in South Africa through constitutional changes (Gibson 9). Sad to say, however, white males remain at the top of the food chain with black lesbians at the bottom of the pile, enduring the worst excesses of class, race and gender under- privilege. Their marginal status has seen them fall victim to particularly gruesome forms of violence against women.

3.3 SAFETY AND SECURITY

South Africa has a notorious reputation for its high incidence of violence against women, way beyond the norm for comparable countries [7]. In post-apartheid South Africa, sexual violence has become a socially endorsed punitive project for maintaining patriarchal order. [8] This is what frames the experience of safety and security for South African women in general and black lesbians in particular.

The rise in xenophobic attacks and violence against LGBTI persons should be considered as part of a broader intolerance of the ‘other’. The ‘otherness’ becomes a powder keg where it intersects with extreme levels of poverty and human degradation.

3.4 KEY CASES AGAINST BLACK LESBIANS

Human Rights Watch found that lesbians face extensive discrimination and violence in their daily lives, both from private individuals and government officials. [9] At least twenty media-prominent cases evidenced the brutal rape and murder of young black lesbians in several townships in South Africa between 2006 and 2013. A key example is 16-year-old rape and murder victim Zoliswa Nkonyana, for whom it took the South African Justice system six years and 30 court appearances, for her murder case to be concluded and her killers sentenced. [10]

4. THE JUSTICE SYSTEM

South Africa is, on paper, one of the most progressive countries on the African continent in terms of observing tolerance and people`s rights, especially the rights of minority groups. [11] Although South Africa has made positive strides in equality and guaranteeing rights especially pertaining to sexual orientation, the country has seen a dramatic rise in brutal attacks against black lesbians. [12] Existing laws on sexual orientation have failed to protect black lesbians or to provide redress.

4.1 INTERNATIONAL OBLIGATIONS

South Africa has a duty under international legal obligations to develop legislation on ‘corrective rape’ as a signatory to the Convention on the Elimination of All forms of Discrimination Against women (CEDAW). [13] Though ground -breaking for women`s rights to non-discrimination on the basis of sex, South Africa’s ratification of the Convention has not improved, in practise, protection for black lesbians.

The Universal Declaration of Human Rights (UDHR) requires all sates to promote human rights and ensure equal and effective recognition of those rights. The United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, the Beijing Platform for Action and the Yogyakarta Principles are also important.

4.2 Regional Obligations

Most African states have adopted the Dakar and the Beijing Platforms for Action and have embarked upon a regional process of creating mechanisms for eradicating gender discrimination. These instruments include the African Charter on Human and People`s Right`s (ACHPR), the AU African Women`s Protocol.

4.3 NATIONAL LEGISLATION

4.3.1 THE SOUTH AFRICAN CONSTITUTION OF 1996

The enactment of the 1996 constitution, with an equality clause expressly prohibiting unfair discrimination on the basis of inter alia sexual orientation, was a cause for celebration for lesbian and gay people across the African continent. For the first time in history, a country was guaranteeing equality for sexual minorities in its highest law and for the first time in Africa, a country recognised the right to be free from all forms of violence and discrimination on the basis of sexual orientation as a fundamental human right. [14]

4.3.2 THE COMMON LAW

Since sexual orientation is a protected class designated in Section 9 of the Constitution, the courts are obliged to extend further protection to the victims of ‘corrective’ rape, thus bringing common law into alignment with the Bill of Rights and the Constitution. And this goes beyond mere discretion. Moreover, it includes granting extra protection against ‘corrective’ rape and creating either a specific crime with a specific punishment, or creating sentence enhancement to those found guilty of ‘corrective’ rape. [15] Prosecutors may draw on common law and section 28(1) of PEPUDA to argue that unfair discrimination played a part in the commission of the offence and that this should be viewed as an aggravating factor in the determining of and appropriate sentence. [16]

4.3.3 STATUTORY LAW

South African Statutory Law, however, does contain provisions which criminalize hate speech. [17] Nevertheless, the crime of hate speech may not be the appropriate crime with which to charge the perpetrators of ‘corrective’ rape against lesbian women. [18] The following legal statutes potentially offer some protection for black lesbians under the law.

a) Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA)

PEPUDA gives victims an opportunity to seek justice against perpetrators. It prohibits hate crimes committed against persons of a specific group. [19] Section 28( 1) provides that ‘if it is proved in the prosecution of any offence that unfair discrimination on the grounds of race, gender or disability played a part in the commission of the offence, this must be regarded as an aggravating circumstance for purpose of sentencing. [20] Unfortunately, this section has not been brought into force yet, despite being on statute books for over a decade.

Including sexual orientation as a prohibited ground for discrimination and as an aggravating circumstance would allow victims of ‘corrective’ rape to seek redress in the Equality Court, against perpetrators and even police officers who specifically ignore complaints due to their own bias. This would also force the police to take appropriate action when an individual claims to be a victim of ‘corrective’ rape. [21] Failure to do so could result in the police officers being brought before the Equality Court.

b) Sexual Offences Act 33 of 2007

This Act is an important contribution to addressing sexual and gender-based violence and covers LGBTI persons. The Act, while only mentioning women and children, as with the international and regional legal instruments, is explicit in its protection ‘regardless of gender’. [22]

c) Domestic Violence Act 116 of 1998

This is one of the first pieces of legislation in the world to classify a same sex relationship as a ‘domestic relationship’ so as to qualify persons who are in same sex relationship to receive legal protection offered by this Act. [23] In South Africa, an abused lesbian woman may apply for a protection order against her abusive lesbian partner.

d) Civil Union Act of 2006

The Act legalised rights of lesbian and gay partners to adoption as co-parents, to the extent of partner benefit to same-sex partners and to marriage. [24] The Act further provides specifically for sexual orientation as one of the grounds that people may not be discriminated against when entering into a civil union.

4.4 THE JUSTICE CLUSTER

4.4.1 THE POLICE

In many cases, police officers perpetuate secondary victimisation, often by mocking or taunting survivors, which leads too many cases going unreported [25]. ‘When you’re a lesbian… you can't go to the police. There’s a lesbian older than me who was raped. Her case was not taken seriously. I'll get raped because I’m a lesbian. It makes me want to stay closeted. ... My girlfriend stays alone; everyone knows this. For sure, [the guys in the neighbourhood"> are planning something. It’s just that the day hasn't come yet.’ [26]

It is assumed that crimes are not solved due to poor evidence collected by the police and the immutable fact that they do not take these types of cases seriously. In other instances, for example that of the Presiding Judge Ratha Mokgoathleng, while describing the crime as ‘callous and inhumane’, nevertheless refused to accept that Simlane`s sexual orientation was the primary motivation for her murder. [27]

4.4.2 THE PROSECUTION

The South African prosecution is ill equipped to deal with the issues raised by hate crime. In the Nkonyana case the court relied heavily on civil society to compensate for their shortcomings, and to understand better the broader implications of the hate crime aspect. [28"> A key recommendation for improving the way South Africa deals with crimes against black lesbians cited extensively both locally and internationally, [29"> is proper record keeping and access to the records.

4.4.3 THE COURTS

The judiciary holds an important place in South Africa. Sentencing is entirely within an individual judge`s or magistrate`s discretion. [30"> Activists have suggested that minimum sentencing laws could be introduced for hate crimes, so offering judges and magistrates some guidance in the passing of sentences, which would also help prosecutors to know what sentence to request for a perpetrator of a hate crime. Harsher punishment for hate crimes would send a counter message to perpetrators of such crimes , illustrating that they are socially unacceptable. [31">

The Traditional Courts Bill (TCB) was met by overwhelming rejection by rural people in the public hearings, as the Bill threatens the rights of rural people, particularly women. There is potential that this layer of court system might impact on LGBTI persons living in rural areas who experience violence and discrimination because of their sexual orientation. [32"> Conversely, if traditional leaders hold discriminatory attitudes towards LGBTI persons, this could reflect in the decisions of these courts. For example Chief Xolie Ndevu, the Provincial Secretary of the Congress of Traditional Leaders of South Africa( Contralesa), said: ‘For us in the rural areas , it will take time to understand the life of gays and lesbians. We simply do not know it.’ [33"> He went on to say that according to him, ‘A boy is a boy and a girl is a girl’. Why should they change themselves? Although being gay was accepted in townships and urban areas, it is still considered as an ‘unknown concept’ in rural areas. [34"> This statement just confirms that it is paramount to educate not only the public but also the police, prosecutors, magistrates, judges and government officials to bring about an awareness of the rights and protections of LGBTI people enshrined in legal instruments.

5 CONCLUSION

The overwhelmingly hostile climate surrounding black lesbians in not a legal one, as the extent of rights coverage shows in Section 4 above. Yet the position of black, township lesbians shows the extreme vulnerability they experience where socio-economic disadvantage intersects race and gender.

Hence, we would argue that the case for protection of black lesbians is a case for justice for all South Africans and should guard against fragmentation according to marginal interest groups. The strategies we seek should be integrated, coherent and based on a three-pronged approach at being preventative, responsive and effective in disabling violence.

Ensuring protection of basic rights for one of the most vulnerable groups, black lesbians is not a problem of the law, but rather, a problem of justice. Responsibility for design and implementation of the strategy for ensuring their basic rights should reside with DoJ and CD but should involve all relevant stakeholders to give impact to the proposed disablers of violence, particularly sexual violence.

* Fairuz Mullagee and Ernest Booys are researchers at the Social Law Project, Faculty of Law, University of the Western Cape.

END NOTES

[1] Bianca Laban, a transgender, told Mazibuko about the difficulties of lesbian, gay, bisexual and transgender (LGBT) people in Thokoza. (IOL News July 2 2013 – accessed 17/07/13).
[2] Pierre Brouard and Jimmy Pieterse. 2012. Two steps forward, one step back: Equality and sexual orientation in South Africa 2009-2011 in South African Human Rights Commission Equality Report. Commentaries on Equality: Race, Gender, Disability and LGBTI issues. 49-63
[3] Mikki van Zyl et al. 1999. The aVersion Project. Human rights abuses of gays and lesbians in the SADF by health workers during the apartheid era. Simply Said and Done, Cape Town.
[4] Marlene Arndt and Gideon du Bruin. 2006. Attitudes toward lesbians and gay men: relations with gender, race and religion among university students. PINS, 2006, 33, 16-30.
[5] Khuthala Nandipha. Mail and Guardian. 15 July 2013 http://tinyurl.com/mb2rqc8, accessed 11/08/13
[6] Alexandra Farren Gibson. 2010. Beyond Coming Out: Lesbians’ Stories Of Sexual Identity In The Context Of A Historically White University. A thesis submitted in fulfilment of the requirements for the degree of Master’s by thesis in Psychology of RHODES UNIVERSITY.
[7] MRC Policy Brief 2009
[8] Helen Moffett. 2006. The political economy of sexual violence in post-apartheid South Africa.
[9] South Africa: LGBTI Rights only in name Violence, Discrimination against Black Lesbians and Transgender men. 2011.
[10] STAYTUNEDAFRICA ‘Be part of the Change’ Another brutal murder of a lesbian Available at http://tinyurl.com/kcrxay6 (Accessed 02 August 2013) .
[11] Classify ‘Corrective’ Rape as Hate Crime available at http://tinyurl.com/n83tt5b (Accessed 02 August 2013).
[12] Classify ‘Corrective’ Rape as Hate Crime available at http://tinyurl.com/n83tt5b (Accessed 02 August 2013).
[13] Classify ‘Corrective’ Rape as Hate Crime available at http://tinyurl.com/n83tt5b (Accessed 02 August 2013).
[14] Wendy Isaaks, (undated) African Lesbian & Gay People – Final Destination south Africa? Legal Resources Centre
[15] Classify ‘Corrective’ Rape as Hate Crime available at http://tinyurl.com/n83tt5b (Accessed 02 August 2013).
[16] Nel J & Judge M ‘Exploring Homophobia Victimization in Gauteng ,South Africa Issues Impacts and Responses, Acta Criminologica (2008)32.
[17] In terms of section 10 of the Promotion of Equality and prevention of Unfair Discrimination Act 4 of 2000.
[18] Naidoo K & Karels K Hate Crimes Against Black Lesbian South Africans: Where Race, Sexual Orientation and Gender Collide (Part 1) (2012) 250.
[19] Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000.
[20] Williams K & Thomas K A Progressive Constitution Meets Lived Reality: Sexuality and the Law in South Africa Evidence Report No 7 Sexuality; Poverty and the Law (2013) 7.
[21] Classify ‘Corrective’ Rape as Hate Crime available at http://tinyurl.com/n83tt5b (Accessed 02 August 2013).
[22] S3 of the Sexual Offences Act
[23] Report on the Coordination and Implementation of Activities Relating to the Implementation of the Criminal Law (Sexual Offences and Related Matters) Act 32 of 2007 January 2012 to March 2013 Consoldated Annual Report.
[24] Williams K & Thomas K A Progressive Constitution Meets Lived Reality: Sexuality and the Law in South Africa Evidence Report No 7 Sexuality; Poverty and the Law (2013) 7.
[25] John Marnell, Gay and Lesbian Memory in Action spokesman
[26] South Africa: LGBTI Rights only in name Violence, Discrimination against Black Lesbians and Transgender men.2011.
[27] ‘Corrective Rape Though to be motive behind Gang Rape and Murder of Eudy Simlane ‘2009 available at Http://www.buzzle.com/articles/31045.html> (Accessed 01 August 2013).
[28"> Williams K & Thomas K A Progressive Constitution Meets Lived Reality: Sexuality and the Law in South Africa Evidence Report No 7 Sexuality; Poverty and the Law (2013)17
[29"> Ibid 59
[30"> Williams K & Thomas K A Progressive Constitution Meets Lived Reality: Sexuality and the Law in South Africa Evidence Report No 7 Sexuality; Poverty and the Law (2013)17
[31"> Ibid 60
[32"> Report on Lesbian , Gay, Bisexual, Transgender, Intersex( LGBTI) Situational Analysis Department of Justice and Constitutional Development Prepared by :Create Africa Trading (CAT) WITH Social Law Project ( SLP) University of the Western Cape (2012).
[33"> The New Age News Paper Gays, Lesbians an ‘unknown concept’ 15 August 2013.
[34"> The New Age News Paper Gays, Lesbians an ‘unknown concept’ 15 August 2013.

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