When we think about violent patriarchy, we often only think about the perpetrators of violence, when really we should also, in every story, reflect on those who uphold patriarchy and essentially allow the violence to go unchecked.
On 26 January 2020, TimesLive published a story involving a magistrate from Umlazi in KwaZulu Natal. The report stated that Kholeka Bodlani, a former Sexual Offences Court judge, is under investigation by the Magistrate’s Commission for her judgments. In one case, Bodlani had reportedly found a man accused of raping a teenage girl innocent. In her judgment Bodlani argued that because the accused carried a bag, styled his hair and washed dishes he was gay and therefore could not have raped the teenage girl. Bodlani’s judgment was overturned by the KwaZulu Natal High Court.
There is justifiable anger against Bodlani’s comments but, sadly, there is more to be angry about. In Umlazi, where Bodlani presided, there were 262 rape cases and 301 sexual offences reported in 2018/2019. The Umlazi police precinct had the fourth highest number of reported rapes in the country. These numbers are alarming, in and of themselves, but due to the high-levels of the under-reporting of sexual offences, we know they only partly reveal the true extent of gender-based violence.
Bodlani has shared similar sentiments in other cases involving rape, especially the rape of young children. Last year the Sunday Times reported that 18 cases presided over by Bodlani was sent on special judicial review following complaints of incompetence against her. Since then the Magistrate’s Commission has launched a full audit into all her cases since her appointment in 2013. The review by the Magistrate’s Commission came after two judges criticized her for making grossly inappropriate comments in four -child- rape cases.
Most of these judgments presided over by Bodlani took place in the hybrid Sexual Offences Court in Umlazi. This court was especially established to improve the prosecution and ultimately conviction of perpetrators of sexual offences quickly and efficiently. Sexual Offences courts are meant to be equipped with the necessary infrastructure and skilled professionals to adjudicate over the most violent crimes committed against women and children.
Gender activists across South Africa have fought tirelessly for progressive laws and greater access to these courts. The fact that someone like Bodlani could preside over proceedings in this court is devastating. This court is meant to provide support, understanding and professional services to those seeking justice. The failure to do so, along with the pervasiveness of violence against women and children in Umlazi amounts to a crisis.
While we might not normally talk about violent patriarchy in the criminal justice system, it is very clearly there. It is evident in how police, prosecutors and judges interact and handle sexual assault cases, how they interact with victims and how willingly they believe in the innocence of perpetrators.
There is an ongoing crisis of attrition regarding sexual offences in our country. Attrition in the criminal justice system refers to the difference between the number of crimes that are committed and the number of those crimes where the perpetrators are found guilty and convicted.
In her book, “Rape Unresolved”, Professor Dee Smythe argues that victims of sexual violence are systematically excluded, at different stages in the criminal justice system, from accessing justice. She argues that actors within the system use their own stereotypes of what the perfect (believable) rape scenario, rapist and rape victim are and in applying those stereotypes they contribute to the high attrition rates.
Smythe states that these stereotypes “become scripted into criminal justice practice, with the result that the cases filtered out of the system are not those that are intrinsically weak, but rather those that offend the normative assumptions of decision-makers.” (Smythe, 2015:4)
Factors such as level of resistance offered by the victim, whether the perpetrator was a stranger, and the victim’s race, class and sexual history are all factors that influence how believable criminal justice actors find a victim. In the end, the police, prosecutors, magistrates and judges use their own assumptions, judgments and convictions to try rape and sexual assault cases. This directly contributes to the low rates of convictions in sexual offences and rape cases. Even with massive under reporting, of those rapes that are reported only 8.6% result in a guilty conviction. This dramatically increases the possibility of perpetrators becoming repeat offenders.
Patriarchy exists in the professional and personal lives of criminal justice actors. This is obvious by the number of police officials who commit murder suicide – killing their partners and then themselves. To ignore this puts women and children especially in life-threatening situations, both in the professional and personal spaces these actors occupy. It is not enough to simply appoint more women to the bench to specifically deal with rape culture, violent masculinity and the crimes of rape and sexual offences. Commonly rape and other sexual offences are heard in magistrate courts.
It is unacceptable that those who work in these courts are not treating rape with the level of sensitivity and gravity it requires. A feminist training of criminal justice actors needs to become a top priority. This needs to be accompanied with rigorous oversight of magistrates in sexual offences cases. As it stands the process to suspend or expel a magistrate is extremely lengthy and cumbersome.
If we do not look into every aspect of how the criminal justice system fails and excludes those seeking justice, then we not only fail the victims of these violent assaults, but we also fail to uphold the legitimacy of the criminal justice itself. We cannot allow those that have a constitutional obligation to ensure justice, to preside over sexual offence cases solely through their own understandings of right and wrong instead of the law. The women, children and victims of this country and Umlazi deserve better.
Khadija Bawa is a researcher at the Social Justice Coalition.