Addressing 'Corrective' Rape in South Africa

By Wendy Lin, Lily Molesky, Nylah Moosa, Annika Pavlin-Jamal, and Eloïse Schlachet

Introduction

This document serves as a formal proposal addressed to Mr. Graeme Reid, the United Nations Mandate Holder on the Protection Against Violence and Discrimination Based on Sexual Orientation and Gender Identity (OHCHR 2023). As a global advocate for LGBTQ+ rights and a leader in addressing violence against individuals for their sexual orientation and gender identity, your mandate is uniquely positioned to confront the alarming and systemic human rights crisis of “corrective” rape in South Africa.

‘Corrective’ rape, a form of sexual violence intended to supposedly ‘cure’ the victim’s sexual orientation, disproportionately targets queer women and serves as a manifestation of deeply entrenched homophobia and patriarchal control (Anguita 2011, 493; Koraan 2012, 46). The brutal physical and psychological consequences of this crime, compounded by systemic discrimination and a lack of institutional response, demand immediate action.

We address this proposal to you due to the United Nations' vital role in setting global human rights standards and fostering accountability. Your mandate provides a platform through which this issue can be amplified, while also exploring ways of engaging with South African institutions and offering actionable solutions rooted in international law and best practices. The present proposal seeks to delineate the scope of “corrective” rape, the international legally-binding framework that demands intervention, while describing comprehensive remedies to empower survivors and prevent further violence.

Background

South Africa, despite its progressive constitution that enshrines equality and prohibits discrimination based on sexual orientation, continues to grapple with pervasive homophobia and heteronormativity, patriarchal ideology, and gender-based violence present within exogenous social convention.

The brutal murder of Noxolo Nogwaza in 2011, a lesbian activist, exemplifies the lethal intersection of homophobia and misogyny in South Africa: her body showing signs of extreme violence, including lacerations and fractured bones (Carter 2013). Although investigated by the local Tsakane police, no arrests were made (Mwambene & Wheal 2015, 65). Nogwaza’s case demonstrates violations of South Africa’s constitution of equal protection and benefit of the law, as well as protection from discrimination based on gender, sex, and sexual orientation, setting a dangerous precedent that allows more instances of “corrective” rape to continue unchecked (Mwambene & Wheal 2015, 67-68).

Estimates suggest that ten queer women are victims of a “corrective” rape each week (Koraan & Geduld 2015, 1931). Very few cases ever reach trial, and many are dismissed outright or postponed in favour of ‘more important’ matters, allowing perpetrators to walk free (Mwambene & Wheal 2015, 62). A 2004 study found that 33% of queer individuals in Gauteng, South Africa feared disclosing their sexual orientations to authorities, while 43% hesitated to report assaults due to fears of police abuse (Mwambene & Wheal 2015, 61). Of the cases that are reported, most are misclassified as unrelated to sexual orientation, despite the targeting of queer women (Mwambene & Wheal 2015, 61). The social marginalization of LGBTQ+ identities that survivors face further deters them from seeking justice or medical care, exacerbating their vulnerability.

Survivors of rape often endure severe physical injuries, as well as exposure to sexually transmitted diseases and pregnancy. With 19.6% of South Africa’s population aged 15-49 living with HIV, combined with rapists’ tendency not to use condoms, survivors of rape are at a heightened risk of infection (South African Government, “People of South Africa,” n.d.). Lesbian survivors are at a greater risk of unintended pregnancies, as they are less likely than heterosexual or bisexual women to use birth control (Doan-Minh 2019, 172). This increases their vulnerability to complications from unsafe abortions, particularly in South Africa, where nearly 50% of abortions occur outside medical facilities, and in Sub-Saharan Africa more generally, which has the highest abortion case-fatality rate in the world (HEARD, 2016; Bankole et al, 2020.) These physical harms are compounded by deep psychological scars, including post-traumatic stress disorder, depression, and suicidal ideation, worsened by the discriminatory and targeted nature of the violence (Doan-Minh 2019, 188; Padmanabhanunni and Edwards 2013, 385). The collective impact of these assaults further isolates survivors, forcing them to bear not only personal trauma but also the societal stigma of being doubly marginalized for their gender and sexual orientation.

‘Corrective’ rape does not occur in isolation; it is a collective, socially constructed form of violence embedded in power dynamic of community and regional structures (Naidoo et al. 2023, 318). It is not merely an assault but an attack on the entire LGBTQ+ community, reinforcing a system that prioritizes heteropatriarchy over the rights, safety, and freedom of LGBTQ+ women.

International Legal Framework

South Africa’s obligations under international law necessitate decisive action against “corrective” rape. The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) defines torture as any act inflicting severe physical or mental pain for purposes such as punishment or discrimination. “Corrective” rape, driven by the intent to punish individuals for their sexual orientation, falls within this definition. Article 2 of CAT mandates that each State Party takes effective measures to prevent acts of torture within its jurisdiction (United Nations 1984). Additionally, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) recognizes gender-based violence as a form of discrimination. General Recommendation No. 19 of CEDAW emphasizes that gender-based violence impairs or nullifies the enjoyment by women of human rights and fundamental freedoms (United Nations 1979). Furthermore, the African Charter on Human and Peoples’ Rights (ACHPR) and its Protocol on the Rights of Women in Africa (Maputo Protocol) obligate State Parties to adopt measures to ensure the protection of women from all forms of violence, including sexual abuse (African Union 2003).

United Nations’ Role and Past Interventions

The UN has previously demonstrated its capacity to address gender-based violence through integrated support mechanisms and policy reforms. The establishment of Thuthuzela Care Centres (TCCs) in South Africa, supported by UN Women and UNICEF, serves as a pertinent example. These centers provide survivors of sexual violence with comprehensive services, including medical care, counseling, and legal assistance, under one roof (UN Women 2015; South African Government, “Thuthuzela Care Centres,” n.d.). The TCC model has been instrumental in improving the reporting and prosecution rates of sexual offenses and offering holistic support to survivors. However, while the TCCs have made significant strides in addressing general sexual violence, they must be adapted to cater specifically to the unique challenges faced by LGBTQ+ survivors. “Corrective” rape is deeply rooted in homophobia, necessitating interventions that specifically address discrimination against sexual minorities. Current TCCs often lack LGBTQ+-specific training for healthcare workers and do not adequately address the stigma that LGBTQ+ survivors face when seeking support.

Proposed Actions and Remedies

Building upon the lessons from the TCC model and other UN interventions, the following actions are recommended to combat “corrective” rape more effectively:

1. The Establishment of LGBTQ+-Specific Support Centers: These centers should provide healthcare services, legal aid, and counseling tailored to the needs of LGBTQ+ survivors. Healthcare providers must receive training in LGBTQ+ sensitivity to ensure non-discriminatory care. Legal aid should assist survivors in navigating the justice system and pressing charges. Community-based counselors who understand the unique challenges LGBTQ+ survivors face should be available to offer support.
2. Legislative Reforms and Anti-Discrimination Laws: Amendments to South Africa’s Criminal Code should explicitly classify “corrective” rape as a hate crime, with enhanced penalties. Comprehensive anti-discrimination legislation protecting sexual orientation and gender identity should be enacted, aligning with CEDAW and ICCPR obligations.
3. Police Training and Accountability Mechanisms: Mandatory LGBTQ+ rights training for law enforcement is essential to reduce bias and ensure respectful treatment of survivors. Human Rights Desks should be established in police stations, staffed by officers trained to handle LGBTQ+ cases sensitively and efficiently (Human Rights Watch 2023).
4. Community-Based Education Programs: Partnerships with local LGBTQ+ civil society organizations (CSOs) can facilitate community dialogues addressing homophobia and patriarchal norms. Implementing LGBTQ+-inclusive education in schools can challenge stereotypes and promote acceptance.
5. Monitoring and Data Collection: A national task force should be created to track cases of “corrective” rape and monitor state compliance with international human rights obligations. Collaboration with the South African Human Rights Commission (SAHRC) can ensure consistent oversight and accountability.
6. International Advocacy and Funding: Mobilizing international donors to fund grassroots LGBTQ+ initiatives in South Africa is crucial. Global solidarity campaigns should be advocated, highlighting “corrective” rape as a human rights crisis requiring immediate attention.

Effectiveness of Proposed Solutions

The proposed solutions draw upon successful interventions and best practices in addressing gender-based violence and discrimination. The TCC model, for instance, has been effective in providing holistic support to survivors of sexual violence, leading to increased reporting rates and improved prosecution outcomes (UN Women 2015). Adapting this model to cater specifically to LGBTQ+ survivors can enhance its effectiveness in addressing “corrective” rape. Legislative reforms that explicitly codify “corrective” rape as a hate crime can serve as a deterrent and signal a strong commitment to protecting LGBTQ+ individuals. Training law enforcement officers and healthcare providers in LGBTQ+ sensitivity can reduce discrimination and improve the quality of support services.

Conclusion

As the UN Mandate Holder on the Protection Against Violence and Discrimination Based on Sexual Orientation and Gender Identity, your leadership, Mr. Reid, is essential in addressing the crisis of “corrective” rape in South Africa. This violent act is a gross violation of international human rights obligations; South Africa’s inaction perpetuates cyclical violence, heteronormativity, patriarchal ideology, discrimination, and impunity. This crisis demands immediate action through targeted solutions, and your mandate offers a powerful platform to mobilize resources and drive substantive and sustainable change. By championing these measures, you can ensure justice for survivors, dismantle systemic discrimination, and uphold global human rights commitments.