Correcting Corrective Rape: Carmichele and Developing South Africa’s Affirmative Obligations To Prevent Violence Against Women
47 Pages Posted: 15 Nov 2010 Last revised: 24 Jun 2011
Date Written: June 8, 2011
On April 28, 2008, Eudy Simelane, a thirty-one-year-old lesbian from KwaThema township outside Johannesburg, was walking near her home after a night out with friends. Simelane had traveled the world with South Africa’s women’s soccer team, Banyana Banyana, and was training to become the first female referee for the 2010 World Cup, hosted by South Africa. On her way home from the bar, however, she was attacked by a group of men. The men dragged her across the ground, stabbed her twenty-five times in the face, chest, and legs, and gang raped her, dumping her body in a ditch where they left her to die.
Simelane was the victim of “corrective rape,” an act of violence against women committed by men ostensibly to “cure” lesbians of their nonconforming sexual orientation - or “correct” it - the belief being that homosexuality is an imported white disease. Attackers, often family members, friends, or neighbors of the victims, say they are teaching lesbian women “'a lesson'” by raping them and “showing them how to be ‘a real woman.’” The danger of corrective rape, though, is not limited to lesbians: because corrective rape is meant to “cure,” or simply to punish, nonconforming sexual orientations, corrective rape may affect not only gay women, but also any women with nonconforming sexual identities. In one alarming case, thirteen-year-old twin daughters were raped because their mother was a lesbian. Thus, any woman thought to be “too different” or insufficiently feminine and who fails to stay invisible is at risk.
What’s worse, what happened to Simelane is not an isolated incident: according to a recent broadcast, “at least 500 lesbian women are . . . victims of corrective rape each year” and, according to one study, “86% of black lesbians from the Western Cape said they lived in fear of sexual assault.” Although an increasingly “‘macho culture’” and continued misunderstanding of and animus toward homosexuality are likely responsible for the rise in corrective rapes, South Africa also lacks the tools to address these atrocities: only a “fraction” of cases are prosecuted and out of the thirty-one lesbian women who were reported murdered in homophobic attacks in a decade, there has been just one conviction. Moreover, the number of corrective rapes is likely higher than reported because crimes based on sexual orientation are not expressly recognized in South Africa and because underreporting is highly likely for crimes of sexual violence due to the lack of faith in and the prejudice of the police, the low conviction rate, trauma endured by rape victims at trial, and, for gay women, the fear of persecution for reporting.
The real violence of corrective rape, then, is that despite South Africa’s legal success in protecting gay rights and despite the promise of a post-apartheid South Africa that values human rights, the government has not done enough to stop corrective rape. But to American students of constitutional law, South Africa has done nothing to violate the rights of women like Simelane—neither the state nor any of its agents attacked her, directly causing any deprivation of her constitutional rights. Nonetheless, what if constitutional doctrine could be utilized such that, even though the state has not directly caused harm, it may nonetheless be held responsible for failing to exercise its power in a way that gives effect to the rights of its citizens and protects them from some of the grossest forms of violence? My thesis is that, under the 1996 Constitution, the government is under such an affirmative duty and must prevent, investigate, and punish corrective rape based on a synthesis of the Constitutional Court’s seminal decision in Carmichele v. Minister of Safety and Security and South Africa’s international legal obligations. Only by imposing this affirmative obligation will women and girls like Simelane be able to fully and freely exercise their rights and enjoy the promise of a post-apartheid South Africa.
Keywords: Carmichele, South Africa, Corrective Rape, Violence Against Women, Horizontal Application, Indirect Horizontal Application, Due Diligence
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