Can I speak please!

My attempt to construct a response to the epic that has become the Zuma trial was interrupted by a phone call. One that I found extremely irritating yet useful in its insistence that I contextualise one of the things I consider problematic in the discourse on gender based violence. Part of my irritation stems from the fact that at the time of the call I was trying to write a difficult piece on the intersect between race, gender, class and why the division of the women’s movement between madams and maids makes it difficult for black women to enter this discourse without first making apologies for the other sector they represent – their ‘womanness’ or their blackness.

The caller wanted to voice his disappointment with a comment I made on a TV programme where I said “…that the Zuma judgment is a set back for women’s rights.” He charged that such a statement meant that women’s rights would have been realised had Zuma been found guilty. And that it suggested that every person accused of rape had to be found guilty, regardless of the evidence before the court.

I could not help but notice how unfortunate this deduction was. It helped that the caller was a lawyer, and I was able to remind him of the distinction between a verdict and a judgment. My caller’s disappointment stemmed also from my perceived failure to endorse or reject the verdict. Why was it my duty to refocus attention on the law, in the three minutes I had? Why did my dissatisfaction with the judgment have to necessarily draw an adverse inference for potential rapists? This distraction is quintessential of the sidetracking that forces black women to engage on fringe issues, whilst attempts are made to silence our voices. I mentioned the treatment meted to K in support of my dissatisfaction. I told him that I did not understand why I needed a password to enter a discussion on gender-based violence, as protection from having to respond to things that I did not say, because not saying them meant I was saying something about Zuma.

The password is often a demand for qualifiers that have become a pre-requisite for debate on gender-based violence. So one needs to say ‘not all men are rapists, and that in the past some people have been falsely accused.’ Had I said that, I would have unlocked my audience. Fact - sexual violence disproportionately affects more women than men, but it does not follow that men do not count amongst survivors of sexual violence. Women lay rape charges, but it does not follow that all of these charges are true. There’s a distinction that I feel needs to be drawn, (one which we are all too eager to draw in other spheres of life), and that is that the norm in rape cases is that most of the complaints are not false, and the fact that some women lie is an exception. Therefore the eagerness to entrench an exception as a norm in rape cases - that women lie about rape - is at the heart of the demand for the concession that this judgment is indeed the correct one.

I have difficulties with Judge Van der Merwe’s judgment, when he finds that an extract from a draft autobiography, regarding K’s ‘experience with a penis’ when she was five, is relevant in determining her sexual history. In this instance there was no accused person, nor a charge of rape. This ‘experience with a penis’, which exists in the autobiography, is made relevant because in it she called it a rape. Acceptance of that evidence, that relates to how a person chooses to name an invasion of her person by a penis at that age, in a private document, not prepared for court, is what I call a set back for women’s rights. Accepting evidence from a gang, who claim to have had consensual sex with a thirteen year old, as relevant in determining whether she had a history of making false rape accusations, constitutes a set back for women’s rights. Disputes about whether there was vaginal penetration or ‘a series of thrusts between the thighs’, an experience that a thirteen year old should rightfully call rape, constitutes a set back for women’s rights.

So, although I think the verdict of an acquittal is a correct one, in law at least, because the state failed to prove its case beyond reasonable doubt, my immediate reaction to the judgment is a NO! and not a statement that extols Van der Merwe’s virtues and legal acumen in acquitting Zuma in a manner that is so inimical to K’s dignity in any civilised society - let alone in a country that lists human dignity, achievement of equality and the advancement of human rights and freedoms as its foundational values.

* Sibongile Ndashe is a woman who works with the law but believes in justice

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