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.