Sexual Assault in the Black and White of the Law

As an intern for the Women’s Legal Centre, I had the opportunity to accompany my boss to the University of Cape Town’s Refugee Law Clinic. The Clinic was holding a workshop aimed to educate refugees about South African law, and my boss was giving a presentation on the law surrounding domestic violence and sexual assault. At the end of the presentation a man confidently asked, “I don’t believe that a husband can ever rape his wife. Can you explain why some people believe it is possible for a husband to rape his wife?”

My boss handled the situation extremely well, explaining how in South Africa the law defines rape as any non-consensual sexual act. Even if the sexual act is between a man and a wife, she expounded, if the wife does not want to have sex and the husband proceeds to have sex with her anyways, then legally the husband has committed rape. The man appeared genuinely confused, and went on to share how he frequently has sex with his wife while she is asleep but, “surely that is not rape.” He quickly added how he would never force his wife to have sex immediately after they had an argument, because that would be “inhumane.” My boss again explained that for sex to be legal within South Africa it had to be consensual, even if the sexual act was between a man and his wife: if the man’s wife was not alright with him having sex with her while she was asleep, she could press rape charges against him.

The feminist within me instructed me to be disgusted with this man who believed he was entitled to have sex with his wife whenever he wanted, but for some reason I did not feel outraged by this man’s comments. He was a newly arrived refugee to South Africa, and he was honestly beguiled by the sexual assault law. My boss sensitively explained how in South Africa, all citizens, regardless of gender, have a right to equality and bodily integrity. Yet citizens also have a right to whatever culture or religion they may choose. She told him that legislators and judges always have to be careful to balance these rights, but she also emphasized that there is no constitutional right to sex.

Watching this interaction take place, I was reminded how challenging it is to mold the grey area of sexual assault into the black and white of the law. I was not pleased with this man, but I also understood how he viewed having sex with his sleeping wife to be completely different from a forced or violent sexual act between two strangers. A part of me sympathized with him; I am perhaps equally incredulous that the justice system can categorize such a wide variety of sexual assaults as “rape” when the matter is so much more complex, cultural and personnel. I do believe that non-consensual or forced sex is wrong, but I do not feel that the justice system in either South Africa or the United States has succeeded perfectly in addressing sexual assault and rape.

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