Endangered species: examining South Africa's national rape crisis and its legislative attempt to protect its most vulnerable citizens.

• Author: Moore, Ashley J.

ABSTRACT

With the demise of apartheid, South Africans eagerly anticipated the freedom from bondage that liberation brings. More than ten years later, however, remnants of the inhumane system still remain throughout South Africa, with the epidemic rape crisis that currently grips the African nation providing dramatic evidence of the continued hold of apartheid. Scores of South Africa's women and young children must contend with the pervasive sexual violence that permeates the country. These would-be victims live in constant fear of physical attack, while advocates await the South African government's response to this national crisis. Unfortunately, legislation that would dramatically change South Africa's current sexual assault laws remains stalled before the South African Parliament almost a decade after its proposal. Further, South Africa's leadership has attempted to shift the focus from the rape epidemic to racism, leaving countless numbers of women and young girls to contend with almost daily violence. The Author argues that the rape crisis demands an immediate response from the South African Government and advocates for the swift passage of the Sexual Offences Bill. The Author recommends, however, that a number of modifications be made to the proposed bill in order to ensure the effectiveness of the legislation. These modifications include: (1) expansion of both the bill's definition of rape and the available defenses; (2) the creation of certain evidentiary rules; and (3) inscription of a written policy into the bill that gives sexual assault victims access to antiretroviral drugs.

 TABLE OF CONTENTS I. INTRODUCTION II. BACKGROUND A. The History of Apartheid as Experienced by the Women of South Africa B. Causes of Violence Against Women and Young Girls 1. The Causes of Violence Against Women and Young Adolescents Can be Linked

to Many Different Factors 2. Young Girls Have Become the New Target of Sexual Violence 3. The South African Government Chooses to Point the Finger at Racism Rather

Than Deal with the Explosive Rape Crisis III. SEXUAL OFFENCES BILL A. The History Behind the Amended Sexual Offences Bill B. Rape: The Current Law C. Rape: The Proposed Law

4. The Move to Repair How South Africa's Criminal Justice System Deals with Victims of Rape IV. COMPARING U.S. LAW WITH

   SOUTH AFRICA'S PROPOSED BILL A. Rape in the United States

2. Violence Against Women Act V. SOLUTION: LEGISLATION MAKING THE SEXUAL OFFENCES BILL MORE VICTIM-FRIENDLY A. Expanding the Definition of Rape and its Defenses B. Evidentiary Rules and Permissible Defenses C. The Interplay Between HIV and Rape VI. CONCLUSION

   I. INTRODUCTION

   The year 1994 was a triumphant one for black South Africans. The abolition of apartheid and South Africa's first democratic election infused black citizens with a feeling of hope and the promise of equal opportunity. (1) More than ten years later, many black South Africans are still living with the scars of their painful past. (2) Just as slavery continues to permeate the fabric of U.S. society, apartheid has left an indelible mark on the hearts and minds of South African's black citizens. (3)

   As black South Africans struggle to break free from the chains of their past, "[o]ne of the most profound legacies of apartheid" continues to keep them bound: the legacy of sexual violence against women. (4) In post-apartheid South Africa this violence has reached epidemic proportions (5) with the severe targeting of young South African girls serving as an extreme example of the depths of this violence. (6) One scholar writes that "[a]ll over the world, the adolescent girl is the girl whose body is most at risk." (7) Everyday, countless South African girls experience this risk "in communities where they live in constant fear of physical attack." (8) Statistics show a 400% increase in child rape in the past eight years. (9) Both young girls and women alike not only must face the emotional and physical scars that result from a sexual assault but also the prospect of death: on average, 45% of those arrested on charges of rape in South Africa test positive for HIV or AIDS. (10)

   In light of this epidemic, many are looking to the South African government to enact legislation to combat the phenomenon. (11) Unfortunately, the legislation that advocates seek has been in limbo before the South African Parliament for nearly ten years. (12) If enacted, the Criminal Law (Sexual Offences) Amendment Bill (Sexual Offences Bill) would dramatically change South Africa's current law regarding sexual assaults. (13) Many, however, question whether the legislation will effectively protect women and young adolescents from becoming victims of rape or adequately deter would-be rapists and sexual predators.

   Part II of this Note discusses how the legacy of apartheid has contributed to the sexual violence that pervades South Africa. Part III examines the Sexual Offences Bill currently before the South African Parliament and the challenges faced by the South African government in using the law to correct a societal ill. Part IV will examine whether the United States' Violent Crime Control and Enforcement Act of 1994 can serve as a model for South African lawmakers. Finally, Part V will propose modifications that should be made to the Sexual Offences Bill to ensure that the legislation brings about the change that South Africans seek.

   2. BACKGROUND

1. The History of Apartheid as Experienced by the Women of South Africa

   Though much has been written about apartheid, only a small percentage of this vast scholarship has focused on apartheid's lingering effects upon women and children. Therefore, to understand the significance of the Sexual Offences Bill and the meaningful impact it could make in the lives of women and young girls across South Africa, the Author will provide a brief synopsis of the history of apartheid, specifically focusing on its effects on women.

   The patriarchal legal structure that existed during apartheid relegated black women to a subordinate class within society. (14) The laws did not permit women to rent or own a home, retain custody of their children upon divorce, or obtain an education. (15) Further, the South African culture reinforced these inequities. (16) Women were taught not to question "the fundamental logic of such gender inequality," (17) and the operation of laws such as those mentioned above ensured that women would never attain equal status with men. (18) Since the abolition of apartheid, women have made great societal strides, garnering freedoms that previously did not exist for them. Their place in society has changed dramatically with the institution of a government affirmative-action program (19) and the grant of greater legal power. (20) Many argue, however, that despite these advancements, black women continue to face societal gender inequality. (21)

   This system of inequality not only relegated women to a subordinate role in society, but "render[ed] [them] exceedingly vulnerable to physical and other forms of violence." (22) For instance, during the apartheid years, and still today, women and girls residing in black townships lived with the fear of being "jackrolled": (23)

    When you leave your child alone in the home she is not safe. And in the street she is not safe. And in the car she is not safe. There is nowhere that she can walk and be safe. Girls are afraid somebody in a car will stop them and say, "get in." When they walk in the

   street they are [publicly] raped by men with guns. Sexual abuse

   happens so much that some students stop going to school. A sinister

   spin-off of "jackrollin" is that is it considered by some not to be a crime, but "just a game." (24)

   In situations like the one described above, groups of adolescent men would abduct and gang rape their victims, making no attempt to shield their faces or hide their identities. (25) The violence continued unabated for so many years because South Africa's law enforcement did not police the black communities. (26) The main objective during apartheid was to stifle political dissent and keep the black communities under the police's dominion and control. (27) The politics of the day seemed to invite violence against women. (28) Today, police officers are more willing to respond to cases of violence reported by black citizens. (29) The trust that they have garnered may explain the rapidly documented increase in reported rapes. (30)

   B, Causes of Violence Against Women and Young Girls

   1. The Causes of Violence Against Women and Young Adolescents Can be Linked to Many Different Factors

      Scholars admit that the causes of sexual violence against South Africa's black women and children are many. (31) Some attribute it to "the [past] reluctance of the police to deal constructively with crime." (32) Others argue that poverty and unemployment best explain the epidemic. (33) Black men confront vast economic hurdles, with their rank making up an overwhelming majority of the 50% of unemployed South Africans. (34) Babalwa Daza, however, a court counselor who helps women navigate through South Africa's court system, takes issue with this argument: (35) "Some people say unemployment. Others will say poverty. I don't agree with that. Since when do you rape because you are hungry?" (36) Scholars also note that as women have challenged their traditional roles in society through the pursuit of new educational and employment opportunities, men have come to feel "a corresponding level of resentment." (37) Nomfondu Waleza, a clinical psychologist in Cape Town, South Africa who counsels abused women, believes men have turned these tensions inward, with the result being a counterattack against women. (38) "There is a backlash in society against women getting somewhere. After two democratic elections there is a sense that women have a better deal than men do," she says. "And men don't like it. The more powerful women become, the more violent men become." (39)

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