Addressing the problem of sexual violence in South Africa : a philosophical analysis of equality and sexual difference in the constitution and the new sexual offences act

[摘要] ENGLISH ABSTRACT: In this thesis, the South African legal system's attempt to address sexual violence is explored through the lens of the work of the French feminist philosopher, Luce Irigaray. It will be argued that the South African equality jurisprudence lays the foundation for a strongly Irigarayan approach to the transformation of sex and gender relations in so far as our right to equality can be interpreted as being underpinned by an acknowledgment of embodiment, sexual particularity and difference. Our Constitution envisions equality as a value informed by difference rather than sameness and, in accordance with Irigaray's work, it can be said that the implication of this is that the pursuit of the transformation of sex and gender relations on the one hand, and an acknowledgment of sexual difference on the other, are not mutually exclusive, but that sex equality instead calls for a fundamental recognition of sexual difference and an authentic response to the demands thereof. However, it will be argued that our newly reformed sexual violence legislation undermines the progress made on a constitutional level by entrenching a problematic approach to sexual difference in the definition of the crime of rape. This is done through firstly, defining the crime of rape in gender-neutral terms and secondly, retaining the concept of consent as the distinguishing characteristic between sex and rape. I will argue that through these features, our sexual violence legislation reflects the most basic mistakes that Irigaray identifies with the law. It will be argued that the legislation, on the one hand, denies sexual difference in a way that is prejudicial to women through its gender-neutral language, while at the same time, through the concept of consent, (re-)introducing a hierarchical construction of masculine and feminine sexuality into the Act in terms of which femininity is construed as derivative of, and inferior to, masculinity. Furthermore, the combination of the gender neutrality of the definition and the concept of consent exacerbates the situation, in so far as the gender neutrality masks the harmful construal of sexual difference that is incorporated in the definition through the concept of consent. Accordingly, judged from an Irigarayan perspective, the South African sexual violence legislation is deeply problematic. In addition, the legislation undercuts important constitutional developments, in so far as it ignores the constitutional insights that, firstly, sexual violence is a problem of sex inequality, and that secondly, the pursuit of the transformation of sex and gender relations is served, rather than undercut by a concern with particularities. On this basis, it is argued that the South African sexual violence legislation should be amended so that the concept of consent is removed and the crime of rape is defined in sex-specific language (while still allowing for male victims and female perpetrators) that facilitates judicial understanding of the complexities of the crime of rape.

[发布机构] Stellenbosch University