In the aftermath of the Jacob Zuma trial, Pambazuka news publishes three excellent pieces the Jacoba Zuma trial. (Pambazuka issue 254)
“Gender and the Judiciary” in which Delphine Serumaga of POWA speaks to Pambazuka News on the verdict of the trial
There is only a 7% rape conviction rate, and many of the reasons for this low rate were evident in this case. Some of the challenges include the legislative and policy framework, which still reflect institutionalized gender oppression. Also, the current definition of rape places a high burden of proof on the complainant/rape survivor. There is also still some application of cautionary rules in rape cases. The law becomes a tool for relentless cross-examination and secondary victimisation by defence attorneys. The Judge in this case seemingly subscribed to the defence’s case and reasoning and characterisation of the complainant as being mad and incapable of telling the difference between consensual sex and rape. Women are routinely characterised as being mentally unstable, loose or of questionable morality during the course of rape trials. This reflects the patriarchal context within which courts operate. The stereotypes and misconceptions we heard inside the court were a reflection of the myths and misconceptions heard outside the court.
The Zuma trial has brought to the surface some fundamentally negative attitudes towards women and sexuality. A woman’s sexual history including one of child abuse at the age of six is seen by the public and the judiciary as a reason to suspect she is a liar and that women cannot be trusted to speak the truth. In “Can I Speak Please”, Sibongile Ndashe discusses the trend to divert gender based violence away from the perpretrators and onto the women. As women we continually have to justify our actions with “qualifiers” such as “not all men are rapists”, “in the past some people have been falsely accused”. The facts show that false accusatons of rape by women are an EXCEPTION so why focus on the exception rather than the norm.
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.
Finally in “Justice with Dignity” Vanessa Ludwig focuses on the South African justice system which in her eyes is the guilty party.
The outcome of this case in my eyes, and many others, is clear – our justice system has been found guilty. It has been found guilty of being hostile to women, Black women in particular; it is guilty of its refusal to protect us.
Black River Eagle touched on the racial aspect in his comment on my initial report on the case was how would this have played out if the it were a white woman? “What if… she were a white woman? Would the white South African judge have handed down the same verdict? Ludwig expands on the racial aspects of this case.
But what can one expect from a system based on Roman-Dutch law, which by its very nature is not sympathetic to Black women. A system constructed within a framework of white supremacy, and male dominance. One in which the Black woman is at the bottom of the human hierarchy. A system that is blind to the inequalities in our society. One that claims to treat everyone as ‘equal before the law’, all the while denying us our realities, and by extension our humanity. One that reifies colonial constructions of Black women as sexual objects, and overly sexualized beings. One that sprang from the same mindset that prompted Cuvier to dissect Sara Bartmann and place her brutalized genitals and brain on display. This, it must show, is a system whose effects are not going to be wiped out overnight, simply because we have signed a new constitution, or because we had Madiba, or because we live in a new South Africa.
Link: The Trial Judgement