Gender construction in sexual offences cases: A case for fully reviving the Sexual Offences Courts

• Jurisdiction: South Africa
• Pages: 135-185
• Published date: 14 September 2020
• Author: Chinnian, K.
• Date: 14 September 2020
• Citation: 2020 Acta Juridica 135

135

Gender construction in sexual oences

cases: A case for fully reviving the

Sexual Oences Courts

KARIN CHINNIAN* and A AMINA PETERSEN†

Gender inequa lity, male hegemony and the power dynamics at the

core of patriarchal society enable the high rate of sexual oences

and the low conviction rate of sexua l oenders when i ncidents are

reported. T he crimina l justice system does not pr ovide a safe space for

the sexual oence victi m/survivor to relate her experience of sexual

violence. Sexua l Oences Court s provided a victim -centred approach

to the criminal justice system. The closure of these courts has been

detrimental to the campaign for social justice and the constitutional

rights of complaina nts. Femi nist scholarship is employed as a lens

through wh ich to analyse and expose the deciencies in the cur rent

framework used to secure conv ictions in sexual oences cases.

Wishik ’s development and expan sion of the ‘woman question’ is

used to rene this method, subquestions a re formulated to provide

a systemat ic process for interrogat ing the status quo, and for nding

remedies to red ress the problems identied. The closure of Sexual

Oences Cour ts may be seen a s a form of discrim ination against

women. It is therefore recom mended that t hese specia lised courts

are reintroduced as a matter of urgency as the state needs to meet its

constitutional obligations.

I IN TRODUCTION

Patriarchy refers to the power imbalances between men and

women in various societal institutions; these imbalances enable

male privilege and the subjugation of women.1 Patriarchy is

ubiquitous, permeates every facet of life, and is deeply embedded

* S enior Lect urer, Depa rtment of Cr imi nal Just ice and Procedure, Facu lty

of Law, Universit y of the Western Ca pe.

† L ecturer, Departm ent of Crim inal Justice and Pro cedure, Faculty of Law,

Universit y of the Western Cape.

1 C A lbertyn & E Bonthu ys ‘Femin ist theories and concep ts’ in C Albe rty n

& E Bonthuys (eds) G ender, Law and Ju stice (2007 ) 19.

2020 Acta Juridica 135

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136 VIOLENCE AGAI NST WOMEN

in our consciousness, even ltering through to judicial systems.2

Gender inequal ity, male hegemony and power dynamics are at

the core of a patriarchal society, and enable the high rate of sexual

oences and the low conviction rate of oenders when oences

are reported to the police. The criminal justice system does not

always provide a safe space for sexual oence victims/survivors to

relate their experiences of sexual violence.3 This article examines

the gendered nature of sexual oences, using the lens of feminist

scholarship to analyse the harms that victims/survivors experience

within the criminal justice system. The fundamental claim is that

the Sexual Oences Courts (SOCs) should be fully re-established

to provide a safer environment for victi ms/survivors. These courts

would also contribute to the state fullling its constitutional

obligation of providing mechanisms for gender equality.4

The court space may present a hostile environment for

complainants in sexual oences cases. One example of this hostile

setting is the widely publicised trial of Timothy Omotoso, the

pastor accused of human tracking, rape and sexual ly assaulting

numerous young women in hi s church. One of the al leged victims,

Cheryl Zondi, was commended for her dicult testimony,

accounting her experiences of abuse. The trial procedure was

heavily cr iticised for the ma nner in which Omotoso’s attorney cro ss-

exami ned the victim. The nation watched a s Zondi was repeatedly

and aggressively accused of fabricating events that implicated

Omotoso. Mr Daubermann, lega l counsel for the accused, even

asked Zondi to describe the depth of sexual penetration by the

pastor.5 Critics of this method of cross-examination argued

2 K M illett ‘Wh at is to be done?’ (200 0) 75 Chicago Kent Law R eview 659 at 659.

3 L A rtz, T M eer, H Galg ut & A Müller ‘Participation in pra ctice: A cas e

study of a col laborat ive study of sex ual oence s in South A frica’ (2017) 115

Feminist Revie w 81.

4 N ational Pl anni ng Comm ission Natio nal Develop ment Plan 2030 (2012)

chapter 12 ‘Bui lding safer com munities’ 63. The Natio nal Development Plan 2030

assert s that the fe ar of cri me ‘has con sequences for women a nd girl s and their

abilit y to achieve the ir potenti al in ever y sphere of soci al and produ ctive life.

GBV in all it s forms denies women a nd girls the oppor tunity to ach ieve equality

and freedo ms enshr ined in the Constit ution.’

5 S B uthelezi ‘Omotoso’s lawyer’s question s to Chery l Zondi were abus ive,

says top advoca te’ IOL News 28 Oc tober 2018, avai lable at https://www.iol.

co.za/sunday-tr ibune/news/omotoso-lawyer s-question s-to-cher yl-zondi-

were-abusive-says-top-advocate-17604186.

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