Abstract
This article asks the question: how do judges know what rape is and what it is not? The statutory definition contained in the Criminal Law (Sexual Offences and Related Matters) Amendment Act1 (SORMA) guides courts in adjudicating rape cases, and as such the definition is theirs to interpret and implement. This article analyses a small selection of recent judgements of the Western Cape High Court2 (WCHC) for answers. The article begins by establishing why judgements are an important source for understanding what rape means in society at large; it then discusses the relationship between power, language, and the law. This is followed by specific analyses of cases that show how patriarchy still defines how judges express themselves about rape. It concludes by looking at the institutional factors that discourage judges from adopting new ways of talking about rape, and their constitutional mandate to do so.
Highlights
Legal institutions have not given meaningful content to the common understanding of rape.[4]
In popular consciousness, remains limited to brutal attacks by deviant strangers.[5]. This excludes the majority of rapes, which may leave no physical trace and are commonly perpetrated by acquaintances.[6]
We operate within an aggressive-acquiescing model in which men initiate sex, dictate its nature, and physically control the encounter while women are the sites on which men perform their dominance.[56]. This model proposes that sexual aggression, including the propensity to rape, is an extension of normative sexual behaviour in these societies.[57]
Summary
This article asks the question: how do judges know what rape is and what it is not? The statutory definition contained in the Criminal Law (Sexual Offences and Related Matters) Amendment Act[1] (SORMA) guides courts in adjudicating rape cases, and as such the definition is theirs to interpret and implement. The article begins by establishing why judgements are an important source for understanding what rape means in society at large; it discusses the relationship between power, language, and the law. This is followed by specific analyses of cases that show how patriarchy still defines how judges express themselves about rape. It concludes by looking at the institutional factors that discourage judges from adopting new ways of talking about rape, and their constitutional mandate to do so
Sign-in/Register to view highlights & summary 
Published Version (
Free)
Talk to us
Join us for a 30 min session where you can share your feedback and ask us any queries you have
Schedule a call