Browsing by Author "Malgas, Kirby"

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    Evaluating the effectiveness of the South African criminal justice system to prosecute homophobic rape
    (University of the Western Cape, 2024) Malgas, Kirby; Chinnian, Karin
    In a heteronormative society, homophobic rape is said to be a “cure” for violating traditional gender representations, which is being anything other than heterosexual. Sexual orientation or gender identification is related to one’s identity. Therefore when someone is harmed because of their identity, such a harm should be deemed as a human rights violation. The Constitution of the Republic of South Africa provides its citizens with protection from discrimination on the basis of gender and sexual orientation, as explicitly mentioned in section 9(3) and (4) of the Bill of Rights. Section 9(4) in particular emphasises that national legislation is obligated to prevent or prohibit unfair discrimination. Homophobic rape is a discriminatory act as it focuses on victims of a particular characteristics or identity, this type of conduct can be recognised as a hate crime. Hate crimes are not specifically recognised within South African legislation. Is this omission aligned with the aims and values of our constitution? This will be the core issue that will be addressed within this thesis. A further study on the interpretation of other relevant legislation will be completed to determine whether it can be used to prosecute hate crime such as homophobic rape, or whether the law is in need of amendment and development to do so justifiably.