Hopes and worries about hate crime legislation

On the evening of 22 March 2014, David Olyne was raped and tied up with wire. His head was then beaten with a brick, and he was set alight. Christo Oncke, who was later found guilty of the murder, invited a group of young people drinking nearby to come and see “how to kill a moffie”. (Moffie is a commonly used pejorative term for homosexual in South Africa).

These witnesses informed no one of the murder. They returned the next day to see if Olyne was still alive. Later, they told a woman about the body.

Olyne was an out gay man who had participated in local drag pageants in the rural town of Ceres in the Western Cape.

The threat of violence against people because of their sexual orientation is not uncommon in South Africa.

Attacked in one’s community

In early 2015 in the township of Nyanga, Ncedisa Nuse, who identifies as lesbian, left her home to stay in a shelter for five days after being warned that members of her community were plotting to kill her. Upon returning, she was attacked by one of her neighbours.

“He beat me and told me I don’t belong here in the community,” she says. “He kept shouting and saying I’m a bad influence on the children.”

Ncedisa, now 27, says she considered moving to live with her sister, but decided to remain at home with her mother. “This is my home. I will fight for myself,” she says.

Ncedisa told her mother she was lesbian when she was 16, and it was accepted by her family. Ncedisa was fortunate. Many children get turned away by their families because of their sexual orientation.

“Parents must support their kids,” says Ncedisa’s mother. She jokes that she has less stress now that she won’t have to deal with babies and irresponsible fathers.

After the attack on her daughter, she confronted community members about their attitudes, asserting her own acceptance of her child. “It hurt me so much. I was angry because I was hurting as a mother.”

Ncedisa is now involved with Luleki Sizwe, an organisation that works primarily in black townships with lesbians who are victims of “corrective” rape, a practice based on the unfounded idea that women can be “cured” of their lesbianism by having sex with a man.

Her friend, Sihle Sikoji, who introduced her to Luleki Sizwe, was stabbed and murdered by members of the Vooras gang. They said women “like her” were trying to steal their girlfriends.

Ndumie Funda founded Luleki Sizwe following the deaths of her close friend, Luleki Makiwane, who was raped by her cousin, and Nosizwe Bizana, her late fiancée who was gang raped at gunpoint. Both women died of Aids.

Funda has received death threats. She has moved every two to three years to protect herself and her partner.

Absence of hate crime statistics

Luleki Sizwe reports that ten cases of “corrective” rape take place in Cape Town every week. But other than a handful of statistics collected by civil society, comprehensive data does not exist because “corrective” rapes aren’t noted separately from rape.

Hate crimes are not classified as a distinct crime category, and no official data is collected on these types of crimes. In an effort to change this, a diverse network of civil society advocacy organisations formed the Hate Crimes Working Group in 2002, and in 2015 they began working with the Department of Justice on new legislation.

“Crime in South Africa is very widespread and very violent already, but hate crimes are very different types of crimes,” says Matthew Clayton, the research, policy and advocacy manager at Triangle Project, an LGBTI rights organisation in Cape Town. “The target in a hate crime is not the individual as much as it is the group that they represent.”

“We need to tackle the message that is being sent out by these crimes about who we think is welcome in our communities and who is safe,” says Clayton. “In the same way that hate crimes are message crimes, it’s important that we have hate crimes legislation that acts as a message back to the people who would do these crimes, that their behavior is unacceptable.”

Drafting hate crime legislation

Although South Africa has anti-discrimination legislation to address unfair bias, the Prevention and Combating of Hate Crimes and Hate Speech Bill distinguishes hate crimes and hate speech as independent categories and provides specific sentencing guidelines. The bill is set to be tabled in Parliament in September, after local elections, and will undergo a public consultation process.

The bill has not been free of controversy. Many have taken issue with the inclusion of hate speech, a decision made in January following various outbursts over racist comments on social media. The concern is that such legislation will limit freedom of speech.

Clayton says he understands the concern and that an eye needed to be kept on the bill’s language to prevent any infringement on freedom of speech.

“We’re all in favour of hate crimes legislation, but I’m wary of legislation that is unfairly written in a way to limit freedom of expression,” he says. “I’m worried about other provisions being watered down because of what’s included under hate speech.”

Under the new legislation, hate crimes and hate speech would be noted if it is targeted towards race, gender, sex, ethnic or social origin, colour, sexual orientation, religion, belief, culture, language, birth, HIV status, nationality, gender identity, intersex, albinism and occupation or trade. Several of these do not appear under the Constitution’s equality clause, however they were added because of previous crimes that targeted groups based on these qualities.

“The success of the law stands or falls on implementation – in other words, official monitoring and reporting mechanisms, adequate police training and the strengthening of a country’s overall criminal justice response,” said Deputy Minister of Justice John Jeffery in a 30 March address at the Annual General Meeting of the Hate Crimes Working Group.

A flawed criminal justice system

Those who monitored David Olyne’s case pointed out many weaknesses in the response of the criminal justice system and policing.

Sonke Gender Justice reported that there was a video recording the police did not retrieve and the docket remained dormant for six months before additional witness statements were taken a year after the incident. There are systemic problems in many murder investigations, but the prosecutor never raised homophobia as the primary motive.

Sharon Cox, Triangle Project’s health and support services manager, says that despite several young people being present at the murder and possibly being involved to various degrees, from the outset of the trial, it was clear that Oncke alone was going to be charged.

“Even at the time, it seemed way too early to make those assumptions,” she says. “We knew that there were not statements taken independently from every person present at the dam [where the murder took place] that night. We also know that DNA testing was not carried out on all present, and clothing worn by the supposed witnesses was not taken in by SAPS.”

The new legislation will attempt to improve this; by specifying a hate crime, police will be directed to seek relevant evidence. Clayton says police often simply don’t gather evidence about a hateful motive.

“Once you identify something as a hate crime, it is investigated as a hate crime,” he says.

Another problem is that many incidents go unreported because of a perceived lack of sensitivity and an inadequate response from police. A 2003 study by OUT, an LGBTI rights organization in Pretoria, found that 62% of lesbian, gay and bisexual survivors of hate victimisation had not reported their experiences to the police.

“Police need to be trained around gender identity and sexual orientation,” says Keegan Lakay, community education and mobilization manager at Sonke Gender Justice.

But that is a daunting task. Clayton says training the country’s 151,000 police officers would take years just to do a basic one day training course. That would have to be followed up with refresher courses and repeated given the high turnover rate in the force.

Captain FC Van Wyk of SAPS Western Cape Media Centre said SAPS officials did receive training on sexual orientation and gender sensitivity but was unable to comment on the extent of that training.

Racialised homosexuality

One of the impediments to social integration of LGBTI communities has been the idea that homosexuality is “Un-African.” This kind of attitude can be seen simply in the reactions of passersby to LGBTI rights campaigns, saying things like “No. No. This is not African. Go back to Europe.”

A collection of the last 50 years of research on sexual orientation by the Academy of Science of South Africa (ASSAF) found over 30 different pre-colonial African societies, including in South Africa, with formal and intimate relationships between women. Ironically, it was largely European colonisation that criminalised homosexuality.

“Until colonisation societies had high degrees of tolerance and sophisticated and fluid ways of dealing with sexualities that weren’t the norm,” says Professor Harry Dugmore, the director of the Centre for Health Journalism at Rhodes University, who co-authored the ASSAF report.

Dugmore says a large part of this perception comes from stereotypes and language that are Western imports.

“When people say, ‘we don’t have any gays’, they may be thinking in terms of the stereotypes they hold about gay people,” he says. “We need to acknowledge that some of the language does come from the West, but every culture has roughly the same proportion of men and women who don’t fit the heterosexual norm.”

Combatting homophobic attitudes

While legislation might improve the institutional protection of people’s sexual orientation and responses to hate-based violences, it cannot eliminate the underlying hate and attitudes that lead to such crimes.

“[The legislation] will be on the statute book, but it cannot change the hearts, minds and attitudes of people,” noted Minister Jeffery.

A 2013 Pew survey in South Africa found that 61% of people were opposed to society accepting homosexuality. These numbers rise in townships and rural areas.

Members of the Ceres community mobilised against homophobic atittudes during the Olyne case.

“The gay man, who flies in the face of what it is to be masculine according to society’s standards, is easily dispensed with,” says Triangle Project’s Cox. “He is not dispensed with before being assaulted with language, including the repetitive use of the word ‘moffie.’ This is meant to degrade and dehumanise. It is said to put people ‘in their place.’”

Lost in a sea of violent crime

On 21 January, after almost 20 months and 35 court appearances, Christo Oncke was convicted of murdering David Olyne. Sentencing however has been postponed several times since then, and is now expected to take place on 11 October.

But justice in one trial is only a fraction of the cases. A month prior to Oncke’s conviction, ten kilometers from Ceres, in Wolseley, a 15-year-old boy stabbed Phoebe Titus, a transgender woman, to death. She was called “moffie” before a knife was plunged into her neck.

Triangle Project intervened after statements from eyewitnesses had not been taken. Cox, who was monitoring the case, says they were told that the investigating officer had a heavy caseload - “68 on her desk at the time, and all are important”.

“The investigating officer went to lengths to make it clear that just because Phoebe was called a ‘vuil moffie’ (a dirty homo) it did not mean she was targeted because of her sexual orientation or gender presentation.”

Phoebe Titus’s case was being treated like any other violent crime.

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