Defining Crime through Punishment: Sexual Assault in the Eastern Cape, c.1835–1900

Abstract

This article traces the history of the punishment of sexual assault cases in South Africa's Eastern Cape region from the late pre-colonial period through the turn of the twentieth century. Sexual assault crimes provide a revealing perspective on practices of punishment because they could be, and were, adjudicated through any of the broad array of legal systems – formal and informal, customary and Roman-Dutch, civil and criminal – which characterised the legal landscape of the colonial Eastern Cape. When British administrators created a colonial legal system in the Eastern Cape in the 1850s, they faced the task of governing a Xhosa-speaking population with substantially different ideas about punishment. Compensation payments, reckoned in cattle, were the standard punishment for most wrongs in pre-colonial Xhosaland. Discipline within the family might take the form of corporal punishment, but public punishments generally did not. The reliance on compensation payments harnessed kinship obligations to the maintenance of public order. British legal thought, however, considered compensation payments appropriate only in civil cases. Even fines (payable to the state) were appropriate only for minor crimes; major crimes required imprisonment, corporal punishment, or death. This difference posed a problem for administrators attempting to secure the legitimacy of the colonial legal system. In order to induce Africans to use the colonial legal system, they needed to satisfy expectations of compensation payments. The compromise that emerged consigned compensation payments to civil disputes, where customary law was recognised, and minor criminal cases. Unwilling to trust kin networks to rein in their unruly members, British administrators insisted on punishments whose weight was born by the individual – at least in the case of ‘serious’ crimes. However, allegations of forcible, even violent, non-consensual sex continued to be adjudicated within the customary (civil) court system, where they were labelled ‘seduction’ or ‘adultery’.