Marital Rape and the Cultural Defence in South Africa

by | Oct 28, 2019 | SLR, SLR V29 I1

Marital Rape and the Cultural Defence in South Africa

Authors Lea Mwambene, Helen Kruuse

ISSN: 1996-2193
Affiliations: Associate Professor, University of the Western Cape; Senior Lecturer, Rhodes University
Source: Stellenbosch Law Review, Volume 29 Issue 1, 2018, p. 25 – 47

Abstract

In 2007 the Criminal Law (Sentencing) Amendment Act 38 of 2007 ("Sentencing Amendment Act"), read together with the Criminal Law (Sexual and Related Matters) Amendment Act 32 of 2007 ("Sexual Offences Amendment Act"), effectively took away an accused’s ability to lead cultural and religious evidence in sexual offence charges. This article questions whether it is right to simply legislate away these beliefs which may be necessary to establish the context of an offence. In particular, we question whether this prohibition advances or hinders the constitutional diversity project in South Africa. We further ask whether ignoring an aspect of an accused’s culpability (and his or her knowledge of unlawfulness) only serves to deepen the alienation that many South African indigenous people feel in relation to the legal system. We ask these questions in full knowledge of the seemingly insurmountable problems raised by allowing such evidence in court, particularly in the case of marital rape. For example, we recognise the possibility of the accused using his or her culture in an opportunistic and self-serving way. More seriously, we recognise that the use (and acceptance) of a cultural belief in South Africa could not only perpetuate stereotypes of reified, monolithic, "backward" cultures, but could also lead to racial essentialism which permits the subordination of women of colour in the name of ethnic differences. Being mindful of these problems, this article seeks to escape the simplistic conception of justice as one where "all persons are equal before the law". Instead, we recognise that this system may operate quite separately from people in an embedded community. In this light, we consider whether, in a charge of rape or sexual assault in a customary marriage setting, cultural beliefs can be led in a way that (1) does not essentialise culture; and/or (2) undermine women’s rights.

Subconscious Advocacy – Part 1: Nonverbal Communication in the Courtroom

by | Oct 28, 2019 | SLR, SLR V29 I1

Subconscious Advocacy – Part 1: Nonverbal Communication in the Courtroom

Authors Willem Gravett

ISSN: 1996-2193
Affiliations: Senior Lecturer, University of Pretoria
Source: Stellenbosch Law Review, Volume 29 Issue 1, 2018, p. 3 – 24

Abstract

Social science has been used with increasing success in a wide variety of human endeavours. For example, marketing, human relations and the delivery of health services are among the widely expanding applications of the classic disciplines of psychology, sociology, anthropology and social psychology. More recently, trial lawyers have also shown increased interest in applying the research findings and theoretical insights of social science to litigation. After all, every law and legal institution is based upon assumptions about human nature and the manner in which human behaviour is determined. Although trial lawyers have been using subconscious nonverbal and verbal persuasion techniques for centuries, social science has recently provided empirical support for trial practice theories that heretofore have been based solely on folklore, intuition and experience. I aim to show that principles of human behaviour derived from social psychological laboratory and field research illuminate the behaviour of actors in the courtroom, equip trial lawyers to better represent their clients, and even suggest ways in which the trial system could be improved. Some scholars claim that the increasing body of psychological literature on the effects of subconscious verbal and nonverbal persuasion, has enabled trial lawyers to improve their courtroom effectiveness to the point where they can "covertly" control how fact-finders decide cases. It is true that social scientists have discovered a myriad of factors that affect judicial decision-making, but that have nothing to do with the merits of the case. However, by communicating this information to trial lawyers, the social scientists have actually decreased the likelihood that these extraneous influences will affect judicial decisions. They have identified existing barriers to rational decision-making, and have devised strategies to reduce their impact, and thereby improve the chances that fact-finders will render better, more informed, and more rational judgments.