The implications of the South African legislative framework on sexual orientation : reflections on violence against LGBTI people

Abstract

Homosexuality has always been regarded as an unnatural conduct from as early as the colonial era, wherein homosexual people were put to death because of their homosexual conduct. The apartheid regime was also opposed to homosexuality, but instead of death, it subjected homosexual people to legal punishment such as long-term imprisonment. However, the adoption of the South African Constitution guaranteed legal recognition and protection to LGBTI people, because it prohibits unfair discrimination on the basis of sexual orientation, among other grounds. This constitutional dispensation brought about the current legislative framework, which repealed and amended discriminatory laws. The South African legislative framework has been structured in such a manner that alleviates the injustices of the past through the promotion of constitutional values such as non-racism and non-sexism. However, the available legislative provisions seem to be ineffective in so far as preventing and prohibiting unfair discrimination and hate crimes against LGBTI people is concerned. This is because the LGBTI community still faces extreme forms of hate crimes, more especially black lesbians, who have become victims of the brutal crime of corrective rape. Although corrective rape has been occurring at an alarming rate over the past decade in South Africa, majority of the perpetrators of such crimes have not been convicted on the basis of their motive in the commission of such crimes because of the lack of prosecutorial and sentencing guidelines on hate crimes. This dissertation aims to assess the extent to which the South African legislative framework has assisted in preventing and prohibiting unfair discrimination on the basis on sexual orientation. Furthermore, it analyses hate crimes aimed at LGBTI people, and further proposes measures that can be employed to curb such homophobic crimes in South Africa.