NEWS & ANALYSIS

Rape is an ordinary crime

Gwen Ngwenya writes on the Rhodes 'reference list' protests at the university

Rape is an ordinary crime

To say rape is an ordinary crime is not to belittle it: murder is a crime, physical assault is a crime. The purpose is to examine ways in which activists want rape to be treated extraordinarily, particularly regarding prevention and consent, and to interrogate the usefulness of these approaches, both for victims and society.

Prevention

In light of the protests at Rhodes University, it is worth digging up a New York Times piece from June last year. The article speaks of the success of a campus rape prevention programme. It equips first year female students (who were identified as being at greater risk) with tools to prevent rape. The lessons covered include "assessing risk, learning self-defense and defining personal sexual boundaries." The program has been a great success with risk of attempted rape being as low as 3.4% among women who took the program compared to 9.3% among those who did not.

Rape prevention is a particularly sensitive area of policy making. Activists, feminist groups in particular, have become increasingly vocal against placing the onus on women to prevent rape. I, unequivocally, support the view expressed by the University of Cape Town's Gender Health and Justice Unit that, "victims of sexual violence are NEVER at fault, and are NOT RESPONSIBLE and NOT to blame for failing to prevent a sexual assault. The perpetrator is ALWAYS responsible for the offence, regardless of what the victim was wearing, where it took place, whether alcohol or drugs were in involved." (Author's emphasis)

There is, however, a false dichotomy of either educating potential victims or educating potential perpetrators. Rape prevention must necessarily involve social crime prevention strategies. Social crime prevention being an approach that views crimes as having root causes in the prevailing social order and its values. However, that should not negate the useful role that victim based prevention measures play.

That a person can and should take preventive measures to safeguard from any harm that may be inflicted upon them is unfortunate but widely accepted in preventing most crimes. The failure of such prevention, should not allow us to apportion blameworthiness to the victim. Prevention should only be intended as an empowering tool, that places some measure of control into the potential victim's hands.

For application of this idea we can look at other crimes such as those involving theft and physical assault. It is trite to point out that the person who leaves their belongings unattended is not to blame for someone stealing them. Similarly taking a dark and deserted path home is not an invitation for anyone to punch you if they feel so inclined.

To the extent that rape victims are blamed for the actions of perpetrators, that is deplorable and is an issue to be addressed. It should also be uncontroversial to say that one's own awareness and actions can be useful in preventing rape as in other crimes.

Consent

In South Africa, section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (the Act) defines rape as, " Any person ("A") who unlawfully and intentionally commits an act of sexual penetration with a complainant ("B"), without the consent of B, is guilty of the offence of rape."

Again, like the area of prevention, activism regarding consent has been concerned with moving the locus of adjudication from the actions of the complainant to the actions of the accused.

Traditionally the common law in many countries required the complainant to prove non-consent through the use of physical resistance. There has been over the decades growing recognition that in many rape cases victims are physically unable to resist[1] (e.g. where the victim is intoxicated) or choose not to resist out of deference to an authority figure and/or fear of the consequences of resistance.

Canadian law has been the forerunner in conceiving consent as a subjective assessment of the frame of mind of the complainant. Which in effect means, that regardless of whether the complainant made any explicit protestations, a rape has occurred if in her mind she did not consent to it.[2]

However, there is a defence open to the accused; in terms of criminal liability there has to be the intention to have sexual intercourse coupled with knowledge or recklessness as to the absence of consent (mens rea). If the accused honestly but mistakenly believed that there was consent, the accused lacked the guilty intent for the crime[3].

Evidence that calls into question the actions of the victim is never pleasant, but we must take care to avoid being drawn into a binary ethical code where talking about a woman's actions in rape cases is either absolutely legitimate or illegitimate. There are proper justifications for both.

Historically women's actions have been used improperly to justify, for example, the rape of intoxicated women. But conceding that there are illegitimate enquiries as to the victim, does not mean that there are no legitimate circumstances in which women's actions should be admitted into evidence.

One of the 11 accused on the Rhodes University SRC list that named alleged rapists wrote on his Facebook page:

"By denying culpability and insisting that my right to a presumption of innocence be respected, I will be invoking language which may trigger rape survivors and reinforce the system that alienates them."

The problems associated with lack of reporting and social prejudices against intoxicated or 'scantily clad' women can have solutions that need not operate extra-judicially.

The above statement of the accused is symptomatic of a society that has adopted the view that belonging to a group is to be complicit in the actions of individuals in that group.

The notion that 'all whites are racist' is of the same school of thought that would conclude that 'all men are rapists.' Not only is this an appalling assault on the 'lived experience' of the individual, it is a view that is myopic about how power works in reality.

Power cannot be assessed in a linear and symmetrical fashion. A man has been intimidated to the point of relinquishing his right to adequately defend himself and students were brought in front of a crowd to account to crimes they have not been found guilty of committing.

Women cannot use their lack of power in one area to justify their bullying in another area. Right there and then in that situation of mob vigilante justice it was the women who had the power to say this will not happen in my name. There is no reason why the common law maxim of 'innocent until proven guilty' should be at odds with the security of women where it is not at odds with the security of victims in other crimes.

Footnotes:

[1] T Illsey 'The Defence of Mistaken Belief in Consent' 68.

[2] P Westen 'Some Common Confusions About Consent In Rape Cases' 341-342, Ohio State Journal of Criminal Law Vol 2.

[3] R v Z 1960 (1) SA 739 (A)