Feminism vs. the State?: A Decade of Sexual Offences Law Reform in South Africa (original) (raw)

Tracking and resisting backlash against equality gains in sexual offence law

Canadian Woman …, 2000

Feminist efforts to expose, challenge, and eliminate direct, indirect, and systemic inequality in the substan-tive, evidentiary, and procedural laws proscribing sexual offences and in the enforcement and application of those laws have not only been con-sistently resisted by police, ...

The Implementation of Feminist Law Reforms

Social & Legal Studies, 2016

In 2005, the Australian State of Victoria abolished the controversial partial defence of provocation. Part of the impetus for the reforms was to challenge provocation’s victim-blaming narratives and the defence’s tendency to excuse men’s violence against intimate partners. However, concerns were also expressed that these narratives and excuses would simply reappear at the sentencing stage when men who had killed intimate partners were convicted of murder or manslaughter. This article analyses post-provocation sentencing judgments, reviewing cases over the 10-year period since the reforms in order to determine whether these concerns have been borne out. The analysis suggests that at the level of sentencing outcomes they have not been borne out, although at the level of discourse the picture is more mixed. While sentencing narratives continue to reproduce the language of provocation, at the same time, post-provocation sentencing appears to provide opportunities for feminist judging – ...

Sense and Sensibilities: A Feminist Critique of Legal Interventions against Sexual Violence

Edinburgh Law Review, 2019

Feminists have spent decades trying to reform laws and evidential procedures relating to sexual assault. Using the current Scottish context as a case study, I will argue that while efforts to reform the text of the substantive as well as evidential and procedural aspects of the law have been largely successful, in practice the impact of these reforms has not always been felt. Drawing on contemporary examples from Scotland, and setting these within the broader context of similar problems and arguments in other jurisdictions such as England and Wales, Australia and Canada, I will examine the ways in which the ‘laws on the books’ have not always translated smoothly through to ‘law in action’. The aim is to highlight an ongoing failure on the part of those charged with applying the law (judges, legal professionals, juries) to do so appropriately, raising the question of whether it makes sense for feminist scholars to try to engage with what seems like the entrenched ‘sensibilities’ of c...

Feminist activism and rape law reform in England and Wales : a Sisyphean struggle?

Rape is a political issue because of feminist activism. Ever since second wave feminism lifted the lid on the systemic nature of sexual violence, including rape, feminists in the UK have fought to secure the better treatment of rape victims by society generally, and by the criminal justice system in particular. Reforming the law on rape has played a key role in these feminist campaigns partly due to the symbolic power of the criminal law, and most recently because of a government receptive to demands for change. However, while law reform has been successful in eliminating some of the most egregious examples of discriminatory attitudes and practices, rape remains endemic and convictions for rape are unjustifiably low. To set the analysis of recent reforms to rape law in context, this chapter provides a trajectory of feminist activism and rape law reform in England and Wales over the past thirty years. It then examines three particular aspects of recent reform which are causing considerable controversy, namely changes to the defence of belief in consent, the introduction of a strict liability offence for child rape and the challenges of intoxicated capacity and consent. The aim is to develop an analysis which demonstrates the vitality and achievements of feminist activism and rape law reform, but also the sustained resistance which such efforts meet. 'Rethinking rape law : international and comparative perspectives' McGlynn and Munro (eds) London: Routledge, pp. 139-153.

Introducing feminist legal theory as a basis for South African judicial jurisprudence: Insights from S v Tshabalala

South African Law Journal

In S v Tshabalala, the Constitutional Court considered an appeal about whether accused persons who were present at a rape scene, but who did not participate in the crime and who neither aided nor abetted the perpetrators, could be found guilty of rape. The court decided this question in the affirmative by developing the commonlaw doctrine of common purpose and extending its application to rape cases. The court said that it did so to remove obstacles caused by patriarchal elements of the common law found in criminal law. The most interesting aspect of the judgment is that the court used feminism as a starting point for understanding the plight of women in rape cases. It affirmed its solidarity with women facing sexual violence and introduced feminist legal theory as a viable jurisprudential consideration in the adjudication of sexual crimes. This note considers the judgment and its implications for South Africa.

Book Review: The Feminist and the Sex Offender: Confronting Sexual Harm, Ending State Violence

Social & Legal Studies

Notes 1. Development Financial Institutions like the International Finance Corporation (IFC, World Bank Group) and the European Bank for Reconstruction and Development have adopted sets of performance standards to promote social and environmental responsibility in their investments, governing involuntary resettlement, environmental impacts and specific guidelines regarding the treatment of indigenous peoples. Many private banks have adopted voluntary standards known as the Equator Principles, modelled on the IFC Performance Standards. 2. Concessionaires, Financiers and Communities will be featured in an extended book symposium hosted by the International Journal of Law in Context about the impact of private actors on the rule of law.

FEMINISM(S) AND THE LAW. OLD LEGACIES AND NEW CHALLENGES

In the ongoing debate on the health of feminism, some authors accuse “second wave” feminists, especially European “feminists of difference”, of having weakened feminist claims by abandoning the emancipatory inspiration of “first wave” feminism. “Second wave” feminists are also accused of overlooking the importance of the law. If we delve deeper, however, their perspective on law appears to represent one of their most important legacies. Abandoning it in favor of an acritical enthusiasm for liberal gender mainstreaming or a gendered “politics of identity” would be a mistake. Today’s feminists should instead work to adapt this legacy to contemporary challenges.

The Equality Courts as a Tool for Gender Transformation

SSRN Electronic Journal, 2010

The complaint was lodged in response to remarks he made to university students concerning Jacob Zuma's rape accuser claiming that she likely enjoyed herself during the incident. Sonke's Equality Court case alleges hate speech, unfair discrimination and harassment of women, and is only the second high profile gender equality case to be taken to the Equality Courts since their inception in 2003. 1 This case study provides an analysis of the Equality Courts as a new legal forum for gender transformation work by examining the history and theoretical foundations for the courts, the procedures for utilising the courts, the problems and challenges faced when using the courts, and documenting Sonke's own experiences in lodging its case. Recent research reveals a dire picture of violence against women and sexual assault in South Africa. A survey in the Eastern Cape and KwaZulu-Natal provinces by Professor Rachel Jewkes of the Medical Research Council and colleagues from the University of KwaZulu-Natal revealed that 1 in 4 surveyed men admitted to having raped a woman. 2 The study also found that men who are physically violent towards women are twice as likely to be HIVpositive, and are less likely to use condoms. Any woman who has been raped by a man over the age of 25 has a 1 in 4 chance of her attacker being HIV-positive. These alarming figures, Jewkes posits, are linked to ideas about masculinity based on gender hierarchy, and to the sexual entitlement of men. The situation is exacerbated by misconceptions regarding sexual violence. A survey of 250,000 school aged youth indicated that males were more likely than females to believe that "sexual violence does not include touching; sexual violence does not include forcing sex with

Falling Rape Conviction Rates: (Some) Feminist Aims and Measures for Rape Law

Rape conviction rates have fallen to all-time lows in recent years, prompting governments to explore a range of strategies to improve them. This paper argues that, while the current legal impunity for rape cannot be condoned, increasing conviction rates is not in itself a valid objective of law reform. The paper problematises the measure of rape law that conviction rates provide by developing an account of (some) feminist aims for rape law reform. Three feminist aims and associated measures are explained-all of which look beyond conviction rates to qualitative and victim-centred outcomes of criminal justice processes. Applying these measures, I argue that strategies designed solely to increase conviction rates are more likely to work against, rather than in support of, feminist aims. The paper thus underscores the need for continued feminist engagement with rape law reform, broadly conceived, notwithstanding its acute limitations for feminist anti-violence politics.