We need to rethink ‘intention’ in rape legislation

“Not all people are seen as possible-to-rape; it has to be someone who can be raped. Sex workers, wives, slave women and men are all categories of people that have at different stages been placed in the category of ‘impossible-to-rape’.” — Academic, writer and gender activist Pumla Gqola

The recent constitutional challenge of the definition of rape by Embrace Project is a welcome opportunity for our courts to address the implied defence contained in the current definition of the crime of rape. While both the Embrace Project and the Centre for Applied Legal Studies make powerful arguments for the removal of “intention” in the definition of rape, it is important we understand the ways in which the current definition reinscribes archaic “force and resistance” requirements of rape. In short, the inclusion of “intention” reintroduces notions of “manifest resistance” into law. “Manifest resistance” in the context of the current definition of rape is a requirement based on archaic understandings of the crime of rape. “Manifest resistance” required that for the crime of rape there should be evidence of physical overpowering of the victim through violence. Additionally, “manifest resistance” implied that if a woman did not actively “resist” the perpetrator, she was either complicit in her own violation or was lying about her level of enjoying the violation. As SW Mills has argued, this traditional conceptualisation of rape ascribes certain responsibilities to women, thus constructingthe “ideal victim” as one who puts up the utmost resistance to protect her honour.  

The concept of honour in rape is one that is embedded in the origins of the crime of rape and has no space in a constitutional democracy, which guarantees the right to dignity, equality and bodily autonomy. In short, intention in the crime of rape is unconstitutional because it reinscribes the now unconstitutional and misogynist cautionary rule, which required courts to treat the evidence of victims with caution. Intention reinscribes this rule through forcing the courts to analyse whether the victim indicated non-consent. This was particularly evident in the Coko v S case where the court subjected the victim’s actions and words to incredible analytical scrutiny. 

Further, it reinforces patriarchal notions of women’s bodies and their violation as being violations of men’s property rather than being a violation of the women’s dignity and bodily autonomy. Thus, for us the true function of intention in the definition of rape is to discipline, legitimate violence and organise the lives of women and “women-others” — those existing outside of binary ideas of womanhood and manhood in service of and to excuse the violence of men and toxic masculinity. 

In other words, our current definition of rape, particularly the ability of men to use the intention/subjective belief defence structures, constructs, and sustains relations of oppression of women and “women-others” through narratives about what women are, who they are, what they can be and prescribes punishment for those who do not adhere to these relational prescriptions. Additionally, it negates the experiences of violence of those who, because of their age, disability, profession (sex-workers) and sexuality, are not able to “resist” for fear that such resistance would result in extreme violence or even death (homophobia motivated rape).

Consequently lesbians, feminine men, transgender women, sex-workers, the old, the disabled and disfigured are silenced and pushed towards vulnerability, thus exposing them to higher chances of violence and death. Subjecting women’s and women-others’ experience of violence to the question of a perpetrator’s intention undergirds the logic of gendered oppression.  The idea that a perpetrator can use his subjective belief of consent and raise intention as a defence in cases of rape is a historically embedded excuse that seeks to justify and legitimate men’s sexual violence against women and “women-others”.  

Therefore, our current definition of rape does not address the foundations that legitimate the disposability of women — male sexual violence and toxic masculinity. Advocacy for more and more legislative reform merely builds on this gendered relations legitimating the logic of patriarchy, which is built on the disposability of women. By disposability we mean those logics within patriarchy which prescribe “how” and “when” a woman is understood as useful and therefore “deserving” of the protection of the state. Rendering women who fall short of being “proper women” disposable and therefore unrape-able.

To understand how the defence of subjective belief functions and embeds the logic of rape in our court processes, we must understand the history of rape as a crime. Historically rape was a property crime — a crime against the estate of the father or the wrongful use of property belonging to another patriarch— the husband. Therefore, for a woman to be “rape-able” she must fulfil the requirement of being “valuable” to the patriarch (father or husband). The “price” women have had to pay for protection by men against other men has been monogamy and chastity/purity. Consequently women and “women-others” — lesbians, wives, non-virgins — could not be raped. In the words of Gqola, they were unrape-able. It is our view that the function of the requirement of intention in the definition of rape is to protect men from having their property devalued or being denied the ability to enjoy the full value of their property — not to protect the dignity of women and “women-others”. In other words, intention allows men to weaponise a woman’s value (or lack thereof) against her. An example would be in the case where a sex-worker retracts consent or in the case of a wife who refuses to consent to sexual intercourse with her husband. 

Additionally, the requirement of intention reinscribes a woman’s own culpability in her own violation. In short, intention/subjective belief as a defence reinforces the requirement for women to “manifest resistance”, because there is an implied requirement that the lack of consent must show on her body through determining the level of violence the perpetrator used to subdue and violate her. 

In our minds, this “manifest resistance” is what the high court judgement in Coko v S was grappling with. This is the reason the judge, Tembeka Ngcukaitobi, searched the testimony of the survivor with forensic exactitude — he searched her body of evidence for the violation/lack of consent and he could not find it. 

Intention reinscribes not only the “manifest resistance” requirement but also the cautionary rule that puts women’s testimonies about the violence they experience under severe scrutiny.  It questions women’s understanding of violations perpetrated against them. This is why, overwhelmingly, women express being subjected to dismissal, insensitivity, exploitation and traumatic cross-questioning both before and during the trial.  This is seen in the Omotoso trial where the defence asked the victim the size of Omotoso’s genitals, why the victim did not find it suspicious that she was locked in a room alone with a man and why she did not scream.

Understanding the historical context within which rape as a crime emerges helps us understand the unarticulated disciplinary norms the initiating judgment of Ngcukaitobi was struggling under and the failures of the supreme court of appeal’s judgment to chart a different possibility through eliminating the requirement of intent in the crime of rape. Whilst we understand this was not directly before the court, the court could have offered a much more decisive comment on the matter. Simply put, the idea that a person can be unintentionally sexually violated should be a misnomer under our human rights-informed constitutional framework. This is because the current possibility of a lack of intention as a defence reformulates it and presents it back to us as “progressive change”. Perpetuating the patriarchal relations embedded within the existing definition of rape, which requires the court to assess whether the perpetrator could have unintentionally sexually penetrated the victim. Simply put, the inclusion of intention modifies the idea of consent. Therefore requiring a not guilty verdict should the court find there was no intention to non-consensually rape the victim. In short, intention re-encodes the boundaries of patriarchal oppression and violence, requiring women and women-others to present themselves as “ideal victims” and punishing those who are not. 

Busisiwe Deyi is a lecturer in the Department of Jurisprudence, University of Pretoria, and Mbuyiselo Botha is the host of the podcast Tea with Botha. Both are former commissioners of the Commission for Gender Equality and write in their personal capacities.