Mediating the ‘sacredness’ of religion, culture and law in contexts of sexual violence

Abstract

abstractLiterature on sexual violence shows that in many countries around the world the law is seen as the most significant means to provide sexual security to women. Feminist scholars, however, have recognised the limited utility of the law in deterring perpetrators and protecting women from sexual violence, when the law is interpreted through essentially patriarchal lenses. In this article, using a critical feminist discourse analysis of two legal judgments on rape in Sweden and South Africa, we extend the literature on feminist critique of sexual violence convictions, by focusing on the significant role that religious and cultural values, as well as “ultra-liberal rights” values play in the interpretation of the law and how these negatively impact on women. Our analysis reveals that even when there was space within the law to impose stricter sentences on the perpetrators of rape, the law was interpreted in a way that minimised the trauma that both females experienced, ultimately making the courts an insecure space for women who experience sexual trauma. This can be attributed to either a positivist view of the law, as was the case in Sweden, or the religious and cultural lenses which were used to interpret the law, as was the case in South Africa. In order to address the problem of insecure courts we propose a shift from a legal positivist hermeneutic to a critical feminist hermeneutic. We conclude that this shift must take into account that religion and culture cannot be privatised in societies that claim secularity and that courts need to be aware of the complex relations between religion, culture, and law. We will show that the complex, frequently taken-for-granted gendered assumptions and hegemonic power relations are discursively produced and affect legal judgments.