South African Teen Charged With “Underage Sex” After Recanting Rape Allegation

by Cara on November 19, 2010

in Africa, human rights, International, law enforcement, misogyny, patriarchy, rape and sexual assault, sexual exploitation and harassment, violence against women and girls

Trigger Warning for descriptions of sexual violence, victim-blaming, and rape apologism

There were recently reports of a particularly horrific rape case out of South Africa, in which a 15-year-old Johannesburg girl alleged rape by two 16-year-old and 14-year-old classmates at Jules High School. The alleged rape was filmed by the two alleged perpetrators and a third boy. And, horrifically, when teachers found this film they didn’t report the rape, but rather found it “hilarious.”

The alleged attack, during school hours last Thursday, was reportedly filmed by three teenage boys on their phones.

The Commission for Gender Equality said the school was more worried about upsetting the boys during exams than the rights of the alleged victim. [...]

The alleged attack happened in a school east of Johannesburg on Thursday. The school girl was allegedly drugged with a spiked drink before the rape.

The failure of the school authorities to respond to the allegations was widely reported in the media and has sparked outrage.

“The three boys were not arrested as they alleged that they did not want to traumatise the school during the exams,” CGE spokesman Javu Baloyi said in a statement.

He said the clip of the rape was shown to teachers, who reportedly found it “hilarious”.

The two alleged perpetrators were only arrested after the public outrage began.

But after a couple of weeks of rumors, insults, and torment from community members, the accuser — who was allegedly told by her teacher that she deserved to be rapedrecanted her allegations and said that the filmed encounter had been consensual.

Inconceivably making matters worse still, authorities then decided to charge not only the two boys but also the girl — who originally claimed to be the victim of assault — with a charge alternately being identified as “underage sex” and “statutory rape.”

South African rights groups have expressed shock at a decision to charge a 15-year-old alleged gang-rape victim with having underage sex.

The girl was charged with statutory rape along with her alleged rapists, who are aged 14 and 16.

The alleged rape happened earlier this month in a school east of Johannesburg in front of other pupils who filmed the incident on their phones.

Prosecutors said rape charges were dropped because of a lack of evidence.

However, the National Prosecuting Authority (NPA) said it had decided all three could be charged under South Africa’s Sexual Offences Act, which outlaws consensual sex with a minor.

There’s all kinds of fucked up to go around here. So let’s take it piece by piece.

We cannot adequately look at this case outside of the context of rape culture. Most of the world has plenty of rape culture to spare, but the situation is particularly dire in South Africa, which has an extraordinarily high rape rate and where it’s estimated that a woman is raped every 17 seconds. (As a comparison, in the U.S. it’s estimated that someone of any gender is raped every two minutes.) Sexual violence and rape apologism both run rampant, though there are many magnificent local victims’ rights groups working hard and fighting back.

In countries like the U.S., steeped in a rape culture of their own, false reports of rape are rare, and no more common than false reports of other crimes. In South Africa, where sexual violence is even more of an epidemic and commonly taken even less seriously, I can only imagine that the rates of false rape reporting are even lower. There’s simply little to no incentive to make a false report, and little to no reason for a person seeking sympathy to expect to find it through this means. That’s not to say that it’s impossible for the girl to have been lying when she made her original allegation of rape. It’s to note the reality that while it’s possible, it’s very unlikely.

Which means that it’s extremely possible — I would argue probable — that she recanted her allegation out of humiliation, trauma, and/or pressure from the authorities. When pursuing a rape case has become too much to bear for a victim, recanting hir allegation, even when it was absolutely true, is often the only way out. And if this young woman did recant an honest allegation in attempt to get away from the media circus and public shaming and to recover from the ordeal privately, she has now just been charged with a crime for the act of reporting her own rape.

Think that’s too far-fetched? It just happened in the U.K. That woman is serving an eight-month jail sentence right now.

But while charges for filing a false report, which the U.K. woman was convicted on, are extraordinarily problematic on the basis that a recantation does not make an allegation false, the charge against the South African girl is quite possibly even more so. Rather than being charged with filing a false report, she’s being charged with statutory rape. Of her alleged rapists. And they are being charged with statutory rape of her. They are, in essence, all being accused of raping each other.

This is wrong for the reasons outlined above — if the girl was raped as she originally claimed, she has been charged with raping those who actually raped her. As local activists have already argued, charging a rape victim with a crime in the case of her own rape is unconscionable beyond belief, no matter what the circumstances, and no matter what the charges. It is an act of inflicting extraordinary trauma. But to make the charge one of raping her rapists is beyond the pale. I really cannot imagine a worse thing that one could do to a rape victim, nor do I want to try.

But even if the recantation was genuine and the original allegations of rape were false, these charges are still a travesty, and defy all sense of logic. I’ve written before about the injustice and insult of outlawing actually consensual teen sex, and framing that sex as “rape” on both sides. It’s a violation of human rights, a means of oppression against already marginalized individuals, and a huge trivialization of actual rape. It’s not very often you’ll hear the words “calling this rape trivializes real rape” come out of my mouth. You’re much more likely to witness me attacking the person saying them. But when you’ve got two equal individuals saying they mutually consented to a sexual act, I think we do have to draw the line at claiming they simultaneously perpetrated rape against each other just because we don’t like their ages.

As Laura Smith-Gary additionally points out over at Care2, this trivialization of rape is particularly stark within the context of general state apathy towards sexual violence, particularly in South Africa. It also has serious consequences when enormous amounts of work still needs to be done (and is currently being done) to educate the public about what rape is, and why it is wrong:

The NPA’s decision to prosecute consensual underage sex is telling the boys that the difference between raping someone and having consensual sex is…not much, since they’re charged with sexual assault anyway. Part of the senselessness of prosecuting mutual “statutory rape” is that it takes the presence or absence of consent out of the definition of what it means to rape. This is especially serious in a country where it’s reported that 16% of men who say though [sic] know a woman who has been raped say she “enjoyed” it and “asked for it.”

Exactly. Which is to say that the best case scenario here is that the same legal system which usually fails to prosecute actual rapists has just decided to call consensual sex rape, and prosecute it as a crime. The worst case scenario is that they’ve decided to blame a rape victim who was traumatized to the point of recanting for her own assault, and charge her with raping her own assailants. There’s no option here that is not guilty of retraumatizing victims and promoting sexual violence.

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{ 3 comments }

1 Chris November 24, 2010 at 4:04 pm

Cara, could this prosecution be some misguided attempt to counterbalance the pressures that led the victim to recant in the first place?

2 Cara November 24, 2010 at 5:54 pm

Chris, how does that even make sense? Victims won’t recant if they think they’ll be prosecuted for doing so? That doesn’t solve the problem of why they recant. Which means that if they honestly do believe that the girl was a victim and recanted because she was traumatized and/or afraid, and they are therefore charging her to teach her a lesson for that, their actions have just gone from unspeakably horrific to downright evil.

3 elena February 5, 2011 at 2:43 am

I didn’t find another post where the comments were open and I have the need to share my story about being raped. I am from Eastern Europe and I have read your blog one night and one day without stopping. Your job is wonderful and I cannot agree more with absolutely every word you write. And it is for the first time i truly aknowledged i was truly raped 5 years ago, at the age of 14. I did not thought very much of the rape until now, but now it is obsessing me. I pretended it haven’t really happen, kind of blocked it from my mind, but now I find particular aspects of my current life and my emotional sensibility have something to do with it.
The rape went like this. I liked a boy in my class and wanted to go to him somewere private. Yes I did want to have sex with him. But we didn’t have any other place than at some other guy’s apartment. Both of them were in the same school with me. I thought that I and the guy I wanted to come with were alone in the apartment. So I had sex with him. Without knowing, the other guy (the apartment’s owner) came inside the room and took a cellphone photo of me having sex with the guy. So the two of them have planned it. He than locked the door and told me that if i do not have sex with him too, that I would see the photo of me naked having sex all over the internet. I pleaded and cried for several hours for him to leave me alone. But finally agreed and let him rape me without physically fighting back. If someone were to look at the act they would believe I was not raped but having normal sex. I still feel that it was not really really rape, as i didn’t physically opposed enough.
After he finished he gave me his cellphone for me to have the photo deleted. Only last summer I found out that he had copied the photo in another folder and the whole high school had saw it. After this happened I remember I did not felt angry, shocked, hysterical. Just numb. I was not feeling absolutely anything for weeks. What never made me acknowledge that this was in fact “real rape” was the fact that after this happened, I further consensually had sex with the rapist several times although I did not felt attracted to him in any way. I felt disgusted and numb but still did. He had my cellphone number and called me and I agreed to meet him. I just don’t know why I have done this and I feel terribly bad for doing so. Right now i am just crying. If I try now to understand WHY I had sex with him after he raped me, nothing comes to mind. I do not have an answer. I just can’t explain it. After I made a boyfriend I didn’t respond to his phone calls anymore and he continued to harass me for 2 years after. Once he stalked me on a dark alley at night. It was so frightening. He said in his phone calls that he wants us to be together and have a relation and that he fell in love with me and that he knew I loved him too. Once when he called me I got really mad and screamed from the top of my lungs that I made some friends that could beat him up and after that he left me alone. Yet he still smirks at me every time we randomly encounter on the street and I am absolutely horrified of seeing him.
I did not told the police as I didn’t wanted my parents to find out or anybody else because I did not wanted to have blame put upon me and asked questions about “what where you doing there in the first place?”. I am sure that if i have told my parents, they would have blamed me. I also knew that he was related somehow with the police and would have most likely got away with it.
After this unfortunate occurrence, I did not care about my sexual life and body anymore until one year and a half. I was able to have sex with anyone regardless if I did not felt attracted absolutely at all. Until one and a half year I was still putting myself in danger because of just “not caring”. 3 more following sexual encounters of mine fit the rape jurisdiction but I just don’t want to think about them. I just did not wanted to have sex but it was pressured upon me.
Now I have a very loving boyfriend who knows all about me and I am happy with him. I am sometimes very emotionally reactive and sensible to perceived lack of affection from him, but he knows how to deal with me. He never ever was sexually coercive in any way with me, always very physically gentle and tender and I appreciate this so much.
Once again, very well job with the blog. I will continue to read it.

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