Putting Gender into the Definition of Rape or Taking it Out?

Abstract

The main issue in the Masiya judgment was whether the current South African definition of rape—namely non-consensual penetration of a vagina by a penis—should be extended to include anal penetration of both female and male victims. The majority of the Constitutional Court held that anal penetration of female victims should constitute rape, but declined to offer similar protection to male victims. This note argues that this judgment reverts to and reinforces patriarchal stereotypes and dichotomies and that it misunderstands, in a profound way, central concepts such as sex and gender and the gendered nature of rape. It further suggests that, instead of being an aberration, the judgment actually fits into a pattern of conservative judgments about gender and sexuality by the South African Constitutional Court.