Mediating the ‘sacredness’ of religion, culture and law in contexts of sexual violence

abstract

Literature on sexual violence shows that in many countries around the world the law is seen as the most significant means to provide sexual security to women. Feminist scholars, however, have recognised the limited utility of the law in deterring perpetrators and protecting women from sexual violence, when the law is interpreted through essentially patriarchal lenses. In this article, using a critical feminist discourse analysis of two legal judgments on rape in Sweden and South Africa, we extend the literature on feminist critique of sexual violence convictions, by focusing on the significant role that religious and cultural values, as well as “ultra-liberal rights” values play in the interpretation of the law and how these negatively impact on women. Our analysis reveals that even when there was space within the law to impose stricter sentences on the perpetrators of rape, the law was interpreted in a way that minimised the trauma that both females experienced, ultimately making the courts an insecure space for women who experience sexual trauma. This can be attributed to either a positivist view of the law, as was the case in Sweden, or the religious and cultural lenses which were used to interpret the law, as was the case in South Africa. In order to address the problem of insecure courts we propose a shift from a legal positivist hermeneutic to a critical feminist hermeneutic. We conclude that this shift must take into account that religion and culture cannot be privatised in societies that claim secularity and that courts need to be aware of the complex relations between religion, culture, and law. We will show that the complex, frequently taken-for-granted gendered assumptions and hegemonic power relations are discursively produced and affect legal judgments.

keywords:

• sexual security
• sexual violence
• feminist legal critique
• human rights-based constitutions
• feminist religious critique

Acknowledgement

This article was written during a research period at Stellenbosch Institute of Advanced Study, STIAS, Mostertsdrift, Private Bag X1, Matieland 7602, South Africa.

Notes

1. This formulation is inspired by Alasdair MacIntyre’s book: Whose justice? Whose Rationality? (1988).

2. ‘Six teens convicted of Stockholm gang rape’ in TT/The Local/og, 14 June 2013, available at: http://www.thelocal.se/20130614/48500 (site accessed 20 April 2015).

3. ‘Gang-rape acquittal verdict rocks Sweden’, Deccan Herald, 20 April 2015, available at: http://www.deccanherald.com/content/360709/gang-rape-acquittal-verdict-rocks.html (site accessed 20 April 2015).

4. Rebecca Martikaninen,’Hovrätten: Inteihjälplösttillstånd’ (‘Court of appeal: Not in a helpless condition’), Expressen, 19 November 2013, available at: http://www.expressen.se/nyheter/hovratten-inte-i-hjalplost-tillstand/ (site accessed on 20 April 2015).

5. Zandra Kanakaris och Olga Persson, ‘Hovrätten blundar för sammanhanget’(’The Court of Appeal is turning a blind eye to context’), Svenska Dagbladet, 1 October 2013: http://www.svd.se/opinion/brannpunkt/hovratten-blundar-for-sammanhanget_8571246.svd (site accessed 20 April 2015).

6. Fredrik Wersäll och Anne Ramberg, ‘Värderingar får aldrig styra i rättsalarna’ (’Values may never be allowed to rule in courts’), Svenska Dagbladet, 4 October 2013, available at: http://www.svd.se/opinion/brannpunkt/varderingar-far-aldrig-styra-i-rattssalarna_8579824.svd (site accessed 20 April, 2015).

7. Zandra Kanakaris och Olga Persson, ‘Domstolarna styrs just av värderingar’ (’Courts are actually driven by values’), Svenska Dagbladet, 6 October 2013, available at: http://www.svd.se/opinion/brannpunkt/domstolarna-styrs-av-just-varderingar_8587830.svd (site accessed on 20 April 2015).

8. A euphemism for oral sex.

9. Available at: http://www.justice.gov.za/legislation/acts/1993-133.pdf (accessed 10 December 2016).

10. S v Modise (113/06) [2007] ZANWHC 73 (9 November 2007), Southern African Legal Information Institute, available at: http://www.saflii.org/za/cases/ZANWHC/2007/73.html (accessed 13 May 2014).

11. S v Modise (113/06) [2007] ZANWHC 73 (9 November 2007), Southern African Legal Information Institute, available at: http://www.saflii.org/za/cases/ZANWHC/2007/73.html (accessed 13 May 2014).

12. S v Modise (113/06) [2007] ZANWHC 73 (9 November 2007), Southern African Legal Information Institute, available at: http://www.saflii.org/za/cases/ZANWHC/2007/73.html (accessed 13 May 2014).

13. See www.section27.org.za (accessed 13 May 2014).

14. Jacques Pauw, ‘No to gays, yes to riches’, Natal Witness, 27 August 2011, available at: http://www.news24.com/Archives/Witness/No-to-gays-yes-to-riches-20150430 (accessed 10 December 2010).

15. Thorne Godinho, ‘Relationships of violence: why abuse counts’, Thought Leader, 22 July 2014, available at: http://www.thoughtleader.co.za/thornegodinho/2014/06/22/relationships-of-violence-why-abuse-counts/ (accessed on 8 May 2014).

Additional information

Notes on contributors

Sarojini Nadar

SAROJINI NADAR (PhD) holds the Desmond Tutu Research Chair in the Faculty of Arts, at the University of the Western Cape . As a trans-disciplinary researcher, she has researched and published widely in the field of gender studies and religion with special focus on HIV and AIDS, gender-based violence, masculinity and sexuality. She has also published on theories of feminism in Africa, and has more recently been engaged in research on social justice and Higher Education systems. The research for this article was undertaken together with Prof Gerle while they were research fellows at Stellenbosch Institute of Advanced Study, STIAS, Stellenbosch.

Elisabeth Gerle

ELISABETH GERLE is Professor of Ethics at Lund University, Sweden and Ethicist at Church of Sweden Research Department. She has been involved in the sexual and reproductive health rights (SRHR) network sponsored by SIDA and Church of Sweden. She has spent several periods as Visiting Scholar at Stellenbosch Institute of Advanced Study (STIAS), Stellenbosch. This article was writiten during one of them together with Professor Nadar. Email: [email protected]