Hate Crimes and State Accountability

Wednesday, 8 August, 2007 - 11:20

National Women's Day Special On 22 July 2007 at about 5pm the body of a 23-year old young lesbian, Thokozane Qwabe, was found by people herding cattle in a field in Ladysmith. Her clothes were lying

National Women's Day Special

On 22 July 2007 at about 5pm the body of a 23-year old young lesbian, Thokozane Qwabe, was found by people herding cattle in a field in Ladysmith. Her clothes were lying about 70m from where her body was found. She had a number of wounds to her head suggesting she had been stoned to death. A suspect has subsequently been arrested and charged with murder.

In June 2007, Sizakele Sigasa, an outreach coordinator at Positive Women’s Network and LGBT rights activist, and her friend, Salome Massoa, were tortured, raped and brutally murdered. Sizakele was found with her hands tied together by her underwear and her ankles tied with her shoelaces. She had three bullet holes in her head and three in her collarbone. Four suspects have subsequently been arrested.

In April 2007, a 16-year old young black lesbian, Madoe Mafubedu was raped and repeatedly stabbed to death. The police are yet to make an arrest.

In March, May and December 2004 in Johannesburg, two black lesbians and one black transgender woman were raped. In all three cases the rapes were committed so as to ‘cure’ them of their sexual orientation and thereby make them ‘proper African’ heterosexual women. All three complainants have since tested HIV positive.

Once again, as we celebrate Women’s Month we must enquire what this means for vulnerable and marginalised women in this country. Generally, violence against women, in all its forms, continues unabated and State response has fallen short of addressing this scourge. Women are not a homogenous group and in the context of violence against women, the elision of difference is problematic. Fundamentally, the violence that many women experience is shaped by other dimensions of their identities such as race, class and sexual orientation which create an additional dimension of disempowerment.  Multiple identity-based discrimination and violence which result in severe vulnerability, exclusion and invisibility must be a critical consideration in post-apartheid South Africa; particularly in considering the duty of the State to protect women from violence and to further respect and promote rights entrenched in our Constitution.

Why are these crimes different?

The above stories and many reported and unreported others, illustrate how racism, patriarchy and heteronormativity as converging systems of domination inform and underpin certain groups of women’s inability to exercise their fundamental human rights. These acts of murder, torture and rape were all motivated by hatred of, and prejudice against black lesbian and transgender women and, as such, must be classified as Hate Crimes. A hate crime is a crime committed because of the perpetrator’s prejudice. It is a crime in which the perpetrator’s conduct is motivated by hatred, bias or prejudice, based on the actual or perceived race, religion, gender, sexual orientation and gender identity of an individual or group of persons. 

Despite constitutional protection on the basis of inter alia sexual orientation, South African society remains deeply homophobic and patriarchal. The high levels of stigma and homophobia simply mean that the rights in the Bill of Rights are vehemently contested and resisted. Additionally, this homophobia is not limited to ordinary citizens, but extends even to our political representatives who, by virtue of their actions and most often omission, have condoned and sanctioned such prejudice and resultant homophobic violence. Many South Africans are homophobic and this attitude is often coupled with the myth that homosexuality is unAfrican, that it is a betrayal of an essentialist African culture and tradition. Lesbians and transgender women are perceived to be threatening the normative social order by seeking to exercise autonomy over their bodies and sexuality. By defying the heterosexual norm they are seen to be provoking moral condemnation, exclusion and very often violence.  When this happens, as it so often does, it demonstrates the intolerance and prejudice which is still so prevalent in our society. South Africa’s post-conflict environment is about male power systems, struggles and identity formations and the re-assertion of a patriarchal norm. This is accompanied by a reinforcement of heteronormativity which perpetuates violent homophobia and various forms of intolerance related to sexual and gender identities. In the words of Ni Aolain and Turner:

…..while the legal and political language of transitional justice may seem revolutionary, underneath it may be hiding a strong strain of conservative and traditional thinking as regards the proper place for women in the new order.

These hate crimes are about identity, differentiating between the victim and perpetrator and connecting violence and prejudice with the social faultlines through which identity is created and sustained.  Beyond hatred and prejudice of a specific group, another important quality of hate crimes is that it is a message crime, communicating to the social group of which the victim is a member that they are not wanted or tolerated within society or a specific community. In the case of black lesbians and transgender women, discrimination and violence is very often experienced on the basis of race, gender, sexual orientation, class and HIV status. The scarring and injury to dignity is as a result of poverty, powerlessness and invisibility. Black lesbians and transgender women are targeted for hate crimes which they experience in manifold forms, including ‘curative rape’. ‘Curative rape’ is a term used to describe the sexual violence perpetrated for the purpose of supposedly ‘curing’ a person of their real or perceived sexual orientation and/or gender identity. 

What does the law say about hate crimes?
The law does not recognise a separate category of hate crimes resulting in the crisis of these crimes being dealt with as ordinary criminal offences. At the level of reporting, a survivor of a hate crime will often be reluctant to report it as such due to fear of secondary victimisation. Additionally, the police will not investigate it as a hate crime since it is not codified and there are no set guidelines for dealing with these crimes. This once again perpetuates the discrimination, vulnerability and invisibility of groups experiencing this form of violence.  The motive – hatred of black lesbians and transgender women – is completely overlooked within the criminal justice system.  This silence renders firstly this group of people invisible; this in turn makes the violence they experience also invisible not only in law but additionally, in programmes and policies designed to address violence against women generally. A Centre for the Study of Violence and Reconciliation report notes that it is surprising that the relevance of hate crime as a reporting and sentencing category has not been given sufficient attention considering South Africa’s recent history of legislated racism and the ongoing expression of violent prejudice.  In the interim, while the law does not yet recognise the specific offence of hate crimes, the motive behind an attack is critical and should be seriously considered as an aggravating circumstance during sentencing.

Hate Crimes are a violation of human rights
South Africa has ratified numerous international treaties including the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), the Convention against Torture (CAT) and the Convention on the Elimination of All Forms of Racial Discrimination (CERD). Having ratified CEDAW, South Africa is obliged to take steps toward eliminating discrimination and ending violence against women, including the adoption of legislative and other measures, imposing sanctions where appropriate, modifying and abolishing existing laws and repealing of all national penal provisions constituting discrimination against women. It is an established principle of international law that the State will be legally accountable for breaches of international obligations under customary or treaty law where it fails to exercise due diligence to prevent, control, correct, or discipline such private acts through its executive, legislative or judicial organs. Additionally, Article 4(c) of the Assembly Declaration on the Elimination of Violence against Women (1993) enjoins the State to exercise due diligence to prevent, investigate and, in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by the State or by private persons. The exercise of due diligence requires that the State, not only enact legislation which punishes acts of violence against women, but additionally that it adopts a policy to prevent violence. It is not sufficient that the State reacts to violations when they have occurred; it is also incumbent upon it to prevent violations by engaging in societal transformation aimed at addressing the various systemic forms of domination and oppression. 

In November 2006, the Committee against Torture in its Concluding Observations to South Africa’s Report on the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment and Punishment, expressed concern about the widespread acts of violence against women and recommended that the government:
i) adopt all necessary measures to prevent, combat and punish violence against women and children and reinforce its co-operation with civil society organisations in combating violence;
ii) undertake research into the root causes of the high incidence of rape and sexual violence so that effective measures can be developed;
iii)  establish awareness raising campaigns; and
iv) investigate thoroughly those grave human rights violations and work towards a ‘no tolerance policy’.
 

The South African government was further urged by the Committee to enact legislation regarding the specific offence of torture and in this respect we recommend the inclusion of hate crimes within this definition. This recommendation is supported by the concluding observations of the Committee on Elimination of Racial Discrimination, which in August 2006 expressed concern about the frequency of hate crimes and hate speech in South Africa and the inefficiency of measures to prevent such acts (article 4). In this respect, the Committee recommended that South Africa ensure the full and adequate implementation of article 4 of the Convention, and that it adopts legislation and other effective measures in order to prevent, combat and punish hate crimes and speech. 

There can be no doubt that there is a constitutional imperative and obligations in international law for the South African government to adopt, without further delay appropriate and protective legislation to address the incidence of hate crimes.

End Notes: 

1. K Crenshaw ‘Mapping the Margins: Intersectionality, Identity Politics and Violence against Women of Colour’ (1990-1991) 43 Stanford Law Review 1241 at 1242.
2. Amnesty International: Crimes of Hate, Conspiracy of Silence Torture and Ill-Treatment based on Sexual Identity (2001).
3. Ni Aolain & Turner ‘Final Accountability for Gender Justice’ 2006. 
4. Bronwyn Harris ‘Arranging Prejudice: Exploring Hate Crime in Post-Apartheid South Africa’ Race and Citizenship Transition Series 2004 www.csvr.org.za 
5. Arranging Prejudice (n4).
6. CAT/C/ZAF/CO/1 37th session. 
7. CERD/C/ZAF/CO/3 69th session.

- The article is written by Wendy Isaack, Legal Services & Advocacy Programme, People Opposing Women Abuse (POWA)

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