Issued by the Commission on Gender Equality
11 October 1999
The Commission on Gender Equality has come out strongly against comments made by Judge Foxcroft on a recent rape case in the Cape High Court. The judge's ruling which was reported on in national newspapers earlier last week, notes that "although it was 'mo rally reprehensible' to rape one's own child, the man's sexual deviancy was limited to his own family, meaning that he posed no threat to the public" Star, 6/10/99
In a letter to Judge Foxcroft, Joyce Piliso Seroke, chairperson of the CGE referred to the exceedingly high incidence of violence against women in South Africa. She noted that the majority of this violence is not perpetrated by strangers, but occurs within the victim's own home, at the hands of a relative, friend or acquaintance: "Statistics show that one in every three girls will be sexually abused during her childhood. In the majority of these cases, the abuser is a member of the child's family, often a f ather or stepfather. As the South African Law Commission's recent discussion paper on sexual offences points out, sexual abuse by a relative is a particularly heinous crime because of the breach of trust, destruction of boundaries and loss of childhood exp erienced by the victim. The discussion paper states that "distrust in the family institution causes severe emotional and psychological damage to children, which makes the rehabilitation of such children extremely difficult". Rape and sexual abuse by a rela tive is thus pervasive crime, with major implications for the individual victim, and for society in general"
The Commission is particularly disturbed by the assertion that because the crime took place within the family, the perpetrator does not pose a danger to the community. "Historically, women have been deprived of the protection of the law, because of the div ision between the public sphere and the "private" sphere of the home. As noted above, the majority of violence against women happens in the home, and the long-held perception that what occurs in the domestic sphere is a family matter and not subject to the law has meant that generations of women and children were beaten, raped and abused with impunity. However, there has been an increasing recognition that human rights extend into the "private sphere", a shift which is reflected in recent South African legi slation" said Joyce Piliso Seroke.
The CGE Chair also stated that the perpetrator in this case is a very direct threat to society: "He has committed a violent, invasive crime against a fourteen-year-old girl, and the fact that he is only likely to commit acts of violence against his own fam ily should not, in our opinion, be considered a mitigating factor. Most rapists do in fact target members of their own family, and these women and children are precisely the members of society most in need of the protection of the law."
The Commission has invited Judge Foxcroft's views on the issues raised in the letter to him. The CGE believes that it is critical that the judiciary begin to understand and engage with the realities of the live of South African women, in order to dispense justice in accordance with the values of our democratic society.
FOR MORE INFORMATION PLEASE CONTACT LIESL GERNTHOLTZ ON (011) 403 7182 or 083 600 3592 or KUBESHNI GOVENDER ON 083 273 8424