"Dip me in chocolate and throw me to the lesbians": Homophobic hate crimes, the state and civil society

Kerry Williams

doi:10.17159/2413-3108/2012/v0i42a833

Abstract

This article describes some of the shortcomings in the prosecution of a homophobic hate crime as well as a non-governmental organisation’s attempt to influence the sentencing of the perpetrators. The fact that an NGO believed it was necessary to intervene in a criminal case, was allowed to lead evidence, demonstrated the harmful effects of homophobic hate crimes and made arguments that these effects should be used in aggravation of sentence, suggests that NGOs may take on a new proactive roll in the prosecution of crimes involving some forms of prejudice. The NGO was unsuccessful in that the magistrate ultimately passed a lenient sentence, in the form of correctional supervision. The sentence included a condition that the perpetrators participate in ‘awareness programmes of gays and lesbians’, conducted by civil society rather than the state. In so doing, the court missed an opportunity to respect, protect, promote and fulfil the rights of gays and lesbians.

Highlights

On 7 October 2007, a young black gay man, Deric Duma Mazibuko, was severely assaulted in a tavern in Germiston, South Africa.[1]
OUT requested that Webber Wentzel assist in ensuring the perpetrators were brought to justice, and in developing the common law in a way that would combat homophobic hate crimes
If the perpetrators were convicted, common law principles could be used to persuade the judicial officer to consider the ‘hate’ motive as an aggravating factor in sentencing, as a result of the particular deleterious effects of homophobic hate crimes.[4] authors did not, make reference to the Promotion of Equality and Prevention of Unfair Discrimination Act (Act 4 of 2000). This Act arguably includes the type of hate crime legislation that Breen and Nel describe as sentencing enhancing legislation

Summary

THE FOCUS

This article focuses on the questions that the case raised about the relationship between the state and civil society in the prosecution and punishment of homophobic hate crimes. It does not focus on the apparent injustices in the criminal process. These include the prosecutor’s initial decision not to prosecute the case, as the crime was framed as a ‘tavern fight’ and as such did not warrant prosecution. The trial took three years to reach a conclusion (despite its simplicity), and for the accused to be convicted of assault with intent to do grievous bodily harm. The insights or lessons that I will focus on, as outlined above, depend on thinking about both the state and civil society in this monolithic way, as the observations are grounded in constitutional law rather than criminal procedure.[9]

OUT AS AMICUS CURIAE

SHIFTING THE BURDEN OF PUNISHMENT TO CIVIL SOCIETY