How war on rape was damaged
M&G: Date 23 Jan 2004
It must have seemed all innocent – the kind of fun people get up to when they are at distant locations far from spouse and family, and free of collegial restraint.
There were the Saturday afternoon snacks, the nightclub, the post-midnight drinks. Then came the now infamous 3am SMS – whose intended purpose we will never know – and the subsequent sexual contact whose nature will probably also remain a mystery.
By the end of this week the names of HIV/Aids activist Salomé Isaacs and Judge Siraj Desai had become synonymous with the most riveting sexual scandal ever to rock post-apartheid South Africa. Those two names have ignited bristling controversy about what ordinary people, rather than those who understand the statutes, understand about rape, how popular attitudes fuel the country's epidemic of rape and other abuse, and about how the law protects (or fails to protect) the rights of all involved in cases the police investigate.
However politically correct South Africans are trying to be about the recent brouhaha, the subliminal attitude seems to be: "What was she doing in his room at 3am in the morning?"
It is this question along with the stock responses that sceptics level at women who claim to have been raped, that this week dealt severe damage to South Africa's war against rape.
Because the Isaacs couple seemed to be of dubious integrity and Judge Desai deemed honourable by virtue of his status, many South Africans were quick to dismiss her claims and air their prejudices without shame.
A central debate, which will become pivotal in this case, concerns proof of consent, and the extent to which acquaintance rape – forced sex by someone known to the victim – is embedded in the social fabric.
"Many of the opinions expressed [about rape] point to the belief that it is the responsibility of a woman to avoid being raped. No reference is made to the perpetrators and the choice that they make to rape," said Chantel Cooper, director of the Rape Crisis Cape Town Trust.
"Currently, many reports are met with scepticism and the fact that the perpetrator chose to commit the act is clouded by allegations that through a woman's dress, actions or words, she was in some way the cause, or that she deserved it."
According to Elaine Selo, a lecturer at the University of Cape Town's African Gender Institute, "The law in South Africa doesn't deal with acquaintance rape at all. It deals with rape that is associated with force and vaginal penetration. It does not even deal with homosexual sex. This makes the burden of proof very difficult and places this burden firmly on to the victim."
There is no research specifically on how many rapes occur between people who know each other, but gender experts say the percentage is high. Analysis by the Crime Information Analysis Centre also shows that guilty verdicts in rape cases were secured in only 15% of cases.
A state prosecutor told the Mail & Guardian there is scepticism among prosecutors about acquaintance rape, and that reporting rape when it had not actually occurred sullied the reputation of genuine rape survivors.
"If an investigating officer brought a file like that [the Isaacs/Desai case] to me, I would think long and hard before I prosecuted", she said.
High-profile rape cases, such as those involving boxer Mike Tyson and cricketer Makhaya Ntini, show the extent to which rape is about power.
The public, she says, find it difficult to believe that "high-flyers" like Tyson and Ntini would commit rape. "It is easier to believe that the woman is cashing in on the man's status and wealth than it is to believe that he is guilty," she said.
According to Cooper, "It's very difficult to get a high-profile person convicted of rape and that includes teachers, doctors, politicians et cetera. You find that people don't want to believe that socially respected people are capable of raping."
But, says Selo, "The debate has opened up in South Africa about men having to think more seriously about their responsibility in sexual relations."
"There is a serious concern in our society because very few women come forward and report rape, when women come forward they are often told that it is not 'real' rape, especially when she knew the perpetrator beforehand. Many survivors report perpetrators saying things like 'no one will believe that I would want to rape you anyway'," said Cooper.
Patriarchal law could well benefit Judge Desai if he is arraigned for rape. The so called "cautionary rule", which the Indian legal system retains, states that sexual offence victims' must have their testimonies taken with a pinch of salt, a legal expert has told the M&G.
The rule was discarded from South African law in March 1998 because it was seen as gender discriminatory and archaic. The Supreme Court of Appeal ruled that the "cautionary rule in sexual cases is based on the irrational and dated perception. It unjustly stereotypes complainants in sexual assault cases (overwhelmingly women) as particularly unreliable."The rule was warmly embraced by women's rights organisations as a victory in the fight against the scourge of sexual violence.
Playing the naming game
M&G Date: 23 Jan 2004
Take a prominent figure in a hotel room with a young female activist, a condom and an injured husband, add the backdrop of a social-values conference on foreign soil – and you have the ingredients of a juicily gripping scandal.
From the moment the sordid details hit the headlines on Monday, the media itself has been scrutinised – and found wanting, experts say.
The week's first major quandary for editors was whether to reveal the identity of the parties involved in the alleged rape by Judge Siraj Desai. Whatever happened in the early hours of Sunday morning took place in a foreign country, which meant that the country's media laws concerning identity protection do not apply.
The Daily Sun and Beeld were the first newspapers to publish the name of the judge on Monday morning; others refrained from doing so.
"We decided to publish the name of the judge because it was in the interest of the public," said Deon du Plessis, the Daily Sun's publisher. But the paper made an ethical decision not to publish the name of the woman because he felt that as a rape victim she deserved "protection".
These two newspapers paved the way for other media organisations to name the judge. Talk radio station 702 – which the husband first called at 3am on Sunday morning with the rape allegation – withheld the identity of the judge until the daily newspapers named him.
"It was not a difficult ethical decision but we withheld it [the name] purposefully the whole of Sunday to abide by the [media] law," said Yusuf Abramjee, station manager of 702. He said they decided to "bend" the rules after the print media published the names because it would seem "silly" not to identify him.
"We had full consent from the Isaacs to use their names, but we would have followed the golden rule until the judge pleaded [in court]."
Later that day The Star – which in its early Monday edition did not carry the names of either party -published pictures of all the parties, together with a photograph of Mark and his two daughters. By this time Judge Desai had appeared in an Indian court.
Moegsien Williams, editor of The Star, said their decision to publish the name of the judge on Monday afternoon was because a charge had been laid. "When we were putting the story together on Sunday [for Monday's early edition] there was simply a complaint lodged with the Indian police."
He said in the absence of any confirmation with sources in India the newspaper upheld the ethical decision not to publish the name of the judge. Williams said the newspaper did not follow any other papers in its decision to publish but thought the photographs of the children were intrusive. "An unusual circumstance [of this case] was the preparedness of the husband to operate with the media."
The use of the photographs has been criticised by media analysts. "The media should have weighed up the value added in publishing the photographs of the children," said Bhartie Daya, researcher at the Media Monitoring Project.
She said the media should have interrogated the husband's role in calling Radio 702. She said the husband's behaviour was "odd". According to Daya no media law was flouted by revealing the identities, because the incident occurred in another country – but the media could have handled the coverage more ethically, despite the husband's willingness to reveal all the names.
"The story went awry the minute the husband was allowed to speak on behalf of his wife," said Jyoti Mistry, media analyst and senior lecturer at Wits University's school of arts. "The media has been indulgent towards [Mark] Isaacs." She questioned his actions, saying they disempower an independent woman by disclosing a very personal and intimate incident.
For Mistry the lack of engagement by the media with the husband's motives in talking about the incident on air was problematic.
But e.tv, the independent free channel, took a lonely stand by not mentioning the names the whole week.
Joe Thloloe, head of news, said the decision is in line with media law despite the incident having occurred in India. He said the audience is South African and both parties will be judged morally in this country. "We have remained very firm not to identify the parties."
He said e.tv will reveal the judge's name once he has pleaded. Thloloe said he does not think the station is silly in not revealing the names, saying that the media coverage of the incident has ruined both parties' reputations. "If the majority of the media does wrong it does not mean we will follow."
Anton Harber, Caxton professor of journalism and media studies at Wits University, said if he were an editor he would have been more cautious about a man who after hearing about the alleged rape of his wife calls a radio station."I think his behaviour should make editors very nervous that they are being used by an opportunistic publicity hound."
The rape of rape
M&G editorial: Date: 22 Jan 2004
A man pulls a woman from a dark street into a darker alley and brutally has sex with her against her will. He leaves her scarred, physically and emotionally and possibly HIV-positive. This is rape at its most scary (if one can assign degrees of horror to such a crime) and most stereotyped.
Trends suggest that in fact most rapes take place in the netherworld between "yes" and "no"; between "I'm thinking about it" and "I'm not"; and between people who know each other or are at least acquainted with each other.
The charge can be the plaything of the malicious, for when it sticks, it sticks fast. And often, the greedy see a quick buck in society's censure of sexual harassment and rape.
The victims of rape are not all doe-eyed virgins and easily categorised "good girls". Often, they are women (and men) who get caught in that uncomfortable and confusing space between yes and no.
This is not a black-and-white issue, as the frenzied debate in South Africa has shown. But there is one certainty: all the various ways in which people are raped leave emotional and physical scars. Levelling the allegation spuriously also leaves scars, which may be invisible but just as damaging. Another certainty is this: no is always no, even after the kissing's started. And an SMS at 3am is not a "booty-call" as some disingenuous DJs and callers to radio talk shows have christened the message allegedly bleeped to Judge Siraj Desai. This view seems disturbingly common.
That is why we have declared in this edition that our war against rape has been raped.
Just when we thought we had begun to make headway in the war against sexual assault, the incident in the Mumbai hotel room threw us many steps backwards and undid much work by government and NGOs.The rather sickening conduct of Salome and Mark Isaacs emboldened all manner of chauvinist pigs and closet rapists to come forward to pollute our airwaves with their views on the nature of rape.
