Hopes and Worries About Hate Crime Legislation. 9/6/2016

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The threat of violence against people because
of their sexual orientation is not uncommon in South Africa, but will
new laws help? 

Ncedisa Nuse and her mother at their home in Nyanga. Nuse was attacked for being lesbian. Photo: Naib Mian

 

On the
evening of 22 March 2014, David Olyne was raped and tied up with wire. His head
was then beaten with a brick, and he was set alight. Christo Oncke, who was
later found guilty of the murder, invited a group of young people drinking
nearby to come and see “how to kill a moffie”. (Moffie is a commonly used
pejorative term for homosexual in South Africa).

These
witnesses informed no one of the murder. They returned the next day to see if
Olyne was still alive. Later, they told a woman about the body.

Olyne was
an out gay man who had participated in local drag pageants in the rural town of
Ceres in the Western Cape.

The
threat of violence against people because of their sexual orientation is not
uncommon in South Africa.

Attacked in one’s community

In early
2015 in the township of Nyanga, Ncedisa Nuse, who identifies as lesbian, left
her home to stay in a shelter for five days after being warned that members of
her community were plotting to kill her. Upon returning, she was attacked by
one of her neighbours.

“He beat
me and told me I don’t belong here in the community,” she says. “He kept
shouting and saying I’m a bad influence on the children.”

Ncedisa,
now 27, says she considered moving to live with her sister, but decided to
remain at home with her mother. “This is my home. I will fight for myself,” she
says.

Ncedisa
told her mother she was lesbian when she was 16, and it was accepted by her
family. Ncedisa was fortunate. Many children get turned away by their families
because of their sexual orientation.

“Parents
must support their kids,” says Ncedisa’s mother. She jokes that she has less
stress now that she won’t have to deal with babies and irresponsible fathers.

After the
attack on her daughter, she confronted community members about their attitudes,
asserting her own acceptance of her child. “It hurt me so much. I was angry
because I was hurting as a mother.”

Ncedisa
is now involved with Luleki Sizwe, an organisation that works primarily in
black townships with lesbians who are victims of “corrective” rape, a practice
based on the unfounded idea that women can be “cured” of their lesbianism by
having sex with a man.

Her
friend, Sihle Sikoji, who introduced her to Luleki Sizwe, was stabbed and
murdered by members of the Vooras gang. They said women “like her” were trying
to steal their girlfriends.

Ndumie
Funda founded Luleki Sizwe following the deaths of her close friend, Luleki
Makiwane, who was raped by her cousin, and Nosizwe Bizana, her late fiancée who
was gang raped at gunpoint. Both women died of Aids.

Funda has
received death threats. She has moved every two to three years to protect
herself and her partner.

Absence of hate crime statistics

Luleki
Sizwe reports that ten cases of “corrective” rape take place in Cape Town every
week. But other than a handful of statistics collected by civil society,
comprehensive data does not exist because “corrective” rapes aren’t noted
separately from rape.

Hate
crimes are not classified as a distinct crime category, and no official data is
collected on these types of crimes. In an effort to change this, a diverse
network of civil society advocacy organisations formed the Hate Crimes Working
Group in 2002, and in 2015 they began working with the Department of Justice on
new legislation.  

“Crime in
South Africa is very widespread and very violent already, but hate crimes are
very different types of crimes,” says Matthew Clayton, the research, policy and
advocacy manager at Triangle Project, an LGBTI rights organisation in Cape
Town. “The target in a hate crime is not the individual as much as it is the
group that they represent.”

“We need
to tackle the message that is being sent out by these crimes about who we think
is welcome in our communities and who is safe,” says Clayton. “In the same way
that hate crimes are message crimes, it’s important that we have hate crimes
legislation that acts as a message back to the people who would do these
crimes, that their behavior is unacceptable.”

Drafting hate crime legislation

Although
South Africa has anti-discrimination legislation to address unfair bias, the
Prevention and Combating of Hate Crimes and Hate Speech Bill distinguishes hate
crimes and hate speech as independent categories and provides specific
sentencing guidelines. The bill is set to be tabled in Parliament in September,
after local elections, and will undergo a public consultation process.

The bill
has not been free of controversy. Many have taken issue with the inclusion of
hate speech, a decision made in January following various outbursts over racist
comments on social media. The concern is that such legislation will limit
freedom of speech.

Clayton
says he understands the concern and that an eye needed to be kept on the bill’s
language to prevent any infringement on freedom of speech.

“We’re
all in favour of hate crimes legislation, but I’m wary of legislation that is
unfairly written in a way to limit freedom of expression,” he says. “I’m
worried about other provisions being watered down because of what’s included
under hate speech.”

Under the
new legislation, hate crimes and hate speech would be noted if it is targeted
towards race, gender, sex, ethnic or social origin, colour, sexual orientation,
religion, belief, culture, language, birth, HIV status, nationality, gender
identity, intersex, albinism and occupation or trade. Several of these do not
appear under the Constitution’s equality clause, however they were added
because of previous crimes that targeted groups based on these qualities.

“The
success of the law stands or falls on implementation – in other words, official
monitoring and reporting mechanisms, adequate police training and the
strengthening of a country’s overall criminal justice response,” said Deputy
Minister of Justice John Jeffery in a 30 March address at the Annual General
Meeting of the Hate Crimes Working Group.

Protesters demonstrating outside
the Ceres Magistrate Court in 2014 during the Olyn murder trial, calling
government officials tortoises. Photo by Pharie Sefali.

A flawed criminal justice system

Those who
monitored David Olyne’s case pointed out many weaknesses in the response of the
criminal justice system and policing.  

Sonke
Gender Justice reported that there was a video recording the police did not
retrieve and the docket remained dormant for six months before additional
witness statements were taken a year after the incident. There are systemic
problems in many murder investigations, but the prosecutor never raised
homophobia as the primary motive.

Sharon
Cox, Triangle Project’s health and support services manager, says that despite
several young people being present at the murder and possibly being involved to
various degrees, from the outset of the trial, it was clear that Oncke alone
was going to be charged.

“Even at
the time, it seemed way too early to make those assumptions,” she says. “We
knew that there were not statements taken independently from every person
present at the dam [where the murder took place] that night. We also know that
DNA testing was not carried out on all present, and clothing worn by the
supposed witnesses was not taken in by SAPS.”

The new
legislation will attempt to improve this; by specifying a hate crime, police
will be directed to seek relevant evidence. Clayton says police often simply
don’t gather evidence about a hateful motive.

“Once you
identify something as a hate crime, it is investigated as a hate crime,” he
says.

Another
problem is that many incidents go unreported because of a perceived lack of
sensitivity and an inadequate response from police. A 2003 study by OUT, an
LGBTI rights organization in Pretoria, found that 62% of lesbian, gay and
bisexual survivors of hate victimisation had not reported their experiences to
the police.

“Police
need to be trained around gender identity and sexual orientation,” says Keegan
Lakay, community education and mobilization manager at Sonke Gender Justice.

But that
is a daunting task. Clayton says training the country’s 151,000 police officers
would take years just to do a basic one day training course. That would have to
be followed up with refresher courses and repeated given the high turnover rate
in the force.

Captain
FC Van Wyk of SAPS Western Cape Media Centre said SAPS officials did
receive training on sexual orientation and gender sensitivity but was unable to
comment on the extent of that training.

Racialised homosexuality

One of
the impediments to social integration of LGBTI communities has been the idea
that homosexuality is “Un-African.” This kind of attitude can be seen simply in
the reactions of passersby to LGBTI rights campaigns,
saying things like “No. No. This is not African. Go back to Europe.”

A
collection of the last 50 years of research on sexual orientation by the
Academy of Science of South Africa (ASSAF) found over 30 different pre-colonial
African societies, including in South Africa, with formal and intimate
relationships between women. Ironically, it was largely European colonisation
that criminalised homosexuality.

“Until
colonisation societies had high degrees of tolerance and sophisticated and
fluid ways of dealing with sexualities that weren’t the norm,” says Professor
Harry Dugmore, the director of the Centre for Health Journalism at Rhodes
University, who authored the ASSAF report.

Dugmore
says a large part of this perception comes from stereotypes and language that
are Western imports.

“When
people say, ‘we don’t have any gays’, they may be thinking in terms of the
stereotypes they hold about gay people,” he says. “We need to acknowledge that
some of the language does come from the West, but every culture has roughly the
same proportion of men and women who don’t fit the heterosexual norm.”

Combatting homophobic attitudes

While
legislation might improve the institutional protection of people’s sexual
orientation and responses to hate-based violences, it cannot eliminate the
underlying hate and attitudes that lead to such crimes.

“[The
legislation] will be on the statute book, but it cannot change the hearts,
minds and attitudes of people,” noted Minister Jeffery.

A 2013
Pew survey in South Africa found that 61% of people were opposed to society
accepting homosexuality. These numbers rise in townships and rural areas.

Members
of the Ceres community mobilised against homophobic
atittudes during the Olyne case.

“The gay
man, who flies in the face of what it is to be masculine according to society's
standards, is easily dispensed with,” says Triangle Project’s Cox. “He is not
dispensed with before being assaulted with language, including the repetitive
use of the word ‘moffie.’ This is meant to degrade and dehumanise. It is said
to put people ‘in their place.’”

Lost in a sea of violent crime

On 21
January, after almost 20 months and 35 court appearances, Christo Oncke was
convicted of murdering David Olyne. Sentencing however has been postponed
several times since then, and is now expected to take place on 11 October.

But
justice in one trial is only a fraction of the cases. A month prior
to Oncke’s conviction, ten kilometers from Ceres, in Wolseley, a 15-year-old
boy stabbed Phoebe Titus, a transgender woman, to death. She was called
“moffie” before a knife was plunged into her neck.

Triangle
Project intervened after statements from eyewitnesses had not been taken. Cox,
who was monitoring the case, says they were told that the investigating officer
had a heavy caseload - “68 on her desk at the time, and all are important”.

“The
investigating officer went to lengths to make it clear that just because Phoebe
was called a ‘vuil moffie’ (a dirty homo) it did not mean she was targeted
because of her sexual orientation or gender presentation.”

Phoebe
Titus’s case was being treated like any other violent crime.