Forget about sexual orientation. Rape is rape.

2011-12-03 13:23

Abigail was only 16 when she fell pregnant.

An acquaintance grabbed her, told her he loved her, and that was Abigail’s first sexual experience. Her mother forced her to marry the man.

In 2008, at the age of 35, Abigail fell in love for the first time in her life – with a woman.

In April last year, Abigail met a man who was sexually interested in her. She told him that she was a lesbian. Late one afternoon, the man tricked Abigail into going to his house, knocked her unconscious when she fought back, and raped her.

Abigail, who was diagnosed with post-traumatic stress disorder, opened a case and had to fight to have her case brought to court.

In July this year, the judge pronounced a verdict of “not guilty”, citing insufficient evidence and saying that Abigail was not a credible witness because she had only “decided” that she was a lesbian after bearing three children. Abigail is trying to put her life back together and does not like to talk about the rape.

Was Abigail raped because she was a lesbian? Yes.

Was she raped because she was a woman who rejected a man’s advances? Yes.

Would she have been raped if she had said “no” to the man without telling him she was a lesbian? Yes.

Is there anything she could have done to avoid being raped, short of consenting to have sex with the man? No.

Is her rape worse because she is a lesbian? No.

Was the criminal justice system’s failure to deliver justice unique to this case? No.

Recent media coverage of sexual violence against lesbians has tended to treat the rape of lesbians as essentially different from the everyday, normalised sexual violence directed at women – of all ages, all sexual orientations, all gender expressions, all socioeconomic classes, all abilities, all religions, all provinces.

This violence has become so enmeshed in the social fabric that an estimated 90% of adult female rape survivors do not report the crime to the police – and understandably so, if the attrition rate for rape cases is anything to go by.

Human Rights Watch’s report “We’ll Show You You’re a Woman’: Violence and Discrimination against Lesbians and Transgender Men in South Africa”, traces the specific contours of violence against lesbians and transgender men.

The report documents a range of verbal, physical and sexual abuse on the grounds of sexual orientation or gender expression by state as well as private actors, and the prejudices that underlie the violence and explores factors that enhance people’s vulnerability.

However, the report shows that sexual violence on the grounds of sexual orientation and gender expression and identity, while often specific and identifiable as such, lies on a continuum with the epidemic of gender-based violence in the country as a whole.

It suggests that treating this violence as more shocking or worse than other instances of rape reproduces the figure of the “innocent victim” in the form of the lesbian at the expense of the vast majority of rape survivors in the country; such a hierarchy serves, ironically, to ­de-prioritise the problem of sexual violence against women.

In a context where resources to address gender-based violence are already scarce and dwindling, there is a risk that a reification of identity-based politics over issue-based responses will only further isolate lesbian, gay, bisexual, and transgender issues from efforts to promote and protect women’s rights.

In a context in which even members of the judiciary operate from prejudice and stereotypes about both homosexuality and women’s sexuality in general – as evident in Abigail’s case and rulings which the current Chief Justice Mogoeng Mogoeng has previously handed down – there is a widespread need for sexual education that draws links between sexual orientation and gender expression and identity on the one hand, and the systemic and structural nature of patriarchal control over women’s bodies on the other.

Does this mean that Abigail’s sexual orientation is irrelevant? No, of course, not.

What it means is that Abigail has as much right to justice and to exercise sexual agency as any other person – no less and no more.

» Nath is a researcher within the lesbian, gay, bisexual and transgender rights programme at Human Rights Watch. She has a doctorate in gender, sexuality and women’s studies.

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