Why we need LGBTI hate crime laws

By Oliver Meth and Bongani Sibeko

South Africa was the first country in the world to outlaw discrimination based on sexual orientation. It was the first country in Africa, and the fifth worldwide, to legalise same-sex marriage.

This places South Africa at the forefront of global efforts to adopt a comprehensive rights-based approach to the inclusion and protection of lesbian, gay, bisexual, transgender and intersex (LGBTI) people. However, there is still a huge gap between the guarantees in the Constitution and the actual treatment of LGBTI individuals. Lesbian women, transwomen, and gay men especially still experience discrimination and violence because of their gender identity or sexual orientation.

The ongoing targeted attacks, so-called “corrective” rapes, and murders of LGBTI persons in South Africa highlight the urgent need for hate crimes legislation and for effective measures to uphold the rights of LBGTI people to life, health, equality and dignity. The legal classification of attacks on LGBTI people as hate crimes would provide a mechanism for reporting them in a way that distinguishes them from other crimes. It would enable such crimes to be tracked and more effective preventive actions taken.

And, although the Promotion of Equality and Prevention of Unfair Discrimination Act (2000) prohibits “hate crimes” – sexual orientation is not included under the section that provides for harsher sentences for crimes based on certain protected classes.

The intentional killing of a person is recorded as murder without reference to their sexual orientation or gender presentation. It could be easier to record hate crimes statistics if there was a separate register of cases where LGBTI identity was a possible motive. Currently, the existence of hate crimes is only visible when a particular case receives a lot of media attention and advocacy from individuals and NGOs who are working to protect the rights of the affected individuals.

The national hate crimes task team was formed in May 2011 in response to hate crimes against the LGBTI community and all gender non-conforming individuals in South Africa. Very little, if any, has been done by this team. The elected representatives include people of the judiciary, police, social development department, as well as well-known LGBTI organisations. They have failed to carry out their mandate in developing a legislative intervention plan, a public-awareness strategy and LGBTI-sensitive shelters.

Three recent cases provide horrific examples of brutality towards young LGBTI people based on their gender identity or sexual orientation. Twenty-year-old Motshidisi “Pascalina” Melamu from Evaton North, in Gauteng, 30-year-old Phoebe Titus from Wolseley, in Western Cape, and 35-year-old Bobby Motlatla from Potchefstroom were all brutally murdered late last year.

Pascalina’s mutilated and burnt body was discovered in a veld after her family reported her missing when she did not return home for two days. Reports indicate that she has been raped, her eyes taken out and private parts mutilated.

Four suspects have been arrested for this murder and LGBTI activists and community members came out to lobby for the case to be recognised as one.

Titus was brutally stabbed by a 15-year-old boy. He plunged a knife that he was given by an older man into her neck. It is alleged that the boy shouted homophobic and transphobic slurs – such as “vuil moffie” (dirty faggot) – at Titus before he stabbed her. This is clearly a hate crime but it was not recorded as one.

The teenage perpetrator was arrested and appeared in court shortly after the attack. Shockingly, he was immediately released on bail into the custody of his grandmother.

In North West, the decomposing body of Motlatla, a third-year music student at North West University, was discovered in his flat. He had been stabbed 39 times while lying in his bed. No arrests have been made in his case and it is unknown if his murder was a hate crime.

Civil society organisations have observed trends regarding certain types of hate crimes in South Africa. The phenomenon falsely called “corrective” or “curative” rape continues to go unaddressed as a type of hate crime. This refers to the rape of someone because of her or his perceived sexual orientation or gender identity, with the objective of punishing them and forcing them to conform to gender stereotypes. Many lesbian women are targeted for rape by heterosexual men who wish to assert their masculinity through power and control. The ineffectiveness of the justice system has resulted in a culture of impunity for the perpetrators of hate crimes and the general perception that these cases are not taken seriously.

In a community-based study conducted by OUT LGBT Well-Being, it was found that most self-identified LGBTI survivors of hate crimes did not report their experiences and that some experienced the police as “not interested’ in assisting them, or being discriminatory towards them when they reported a hate crime. Such secondary victimisation is another reason why hate crimes legislation is needed.

Even with sound legislation, there are several cultural barriers to overcome, such as the influence of social, traditional and religious norms, including from the colonial era, and mistrust of the police arising from abuses during the apartheid era.

One cannot turn a blind eye to the fact that homosexuality is widely considered to be “un-African” and many people of various religious faiths consider it against their belief systems. This leads to the censorship placed on same-sex relationships by families and communities. In a society characterised by high levels of violence generally, and especially crimes against women and children, this intolerance manifests in violent attacks. When homosexual people deviate from the constructed ideas of masculinity and femininity, this is seen as unacceptable.

As South Africa celebrates 22 years of democracy, the rights of LGBTI people are violated daily and more urgent efforts are needed to put a stop to these crimes of hate.

Next week, the Aids Foundation of South Africa will host its annual Regional Learning and Sharing Conference in Durban, themed “Policing Sexualities: Sex, Society & State” – which aims to share experiences and knowledge on the complexities of making sexual and reproductive health rights real in Africa and beyond.

Delegates from across the region will interrogate why and how people’s sexualities are policed. They will interrogate the reality that, beneath the heroic façade of the Constitution in South Africa a vicious cocktail of violence, sexism and hatred brews. The conference aims to identify ways in which advocates of inclusive and universal human rights can work together across the region to address the legal, political, social, cultural and economic barriers to realising those rights.

Oliver Meth is based at the Aids Foundation of South Africa and Bongani Sibeko is a leader of the Gauteng LGBTI Sector and a delegate at the Regional Learning & Sharing Conference, hosted by the Aids Foundation of South Africa in Durban, February 23-25 2016.