IOL News has quoted magistrate Herman Badenhorst of the Krugersdorp Magistrate’s Court as saying: “... In prison, you can rape prisoners if you feel like it – at least you won’t be around little children…” This was during the sentencing hearing for Neo Molaudzi, convicted of raping and robbing a 13-year-old boy.
When Clayson Monyela and McIntosh Polela made similar comments, public outcry led to quick retractions and apologies. Badenhorst might follow suit and apologise, but as an administrator of justice his words were no gaffe and an apology will not suffice. Badenhorst’s utterances are astonishing and deeply alarming, coming from someone in his position: they can amount to an endorsement of the rape of prisoners.
It is not news that rape is a common part of prison experiences. Though the Department of Correctional Services (DCS) has only recently begun keeping statistics on sexual violence and has yet to make them public, the Judicial Inspectorate for Correctional Services found that nearly half of the inmates it surveyed confirmed that sexual abuse in correctional centres regularly takes place.
Society’s acceptance of prisoner rape is reflected in how it’s often treated as a joke (don’t drop the soap), or as a tactic for deterring would-be lawbreakers (the Brandhouse advertisements use the threat of prison rape as a deterrent from drinking and driving), and as something that inmates deserve. Most victims of sexual violence in prison do not report it. They are threatened into silence by their perpetrators – sometimes working with corrupt warders – and discouraged from seeking justice by insensitive officials in DCS, the SAPS, Health Department and the judiciary.
Survivors of prisoner rape often talk about being rejected. The message they hear repeatedly is: “What did you expect? You shouldn’t have committed a crime in the first place.” To demonstrate the impact of this attitude, it is important to put it into context.
Rape in prison is a violation of human rights and has been recognised as a form of torture by the UN’s Committee Against Torture and various UN special rapporteurs on torture. Prisoner rape also violates inmates’ constitutional rights to be free from violence and to live with dignity.
Badenhorst’s implied endorsement of prisoner rape infringes on inmates’ right to equality: he, an administrator of justice, states that the crime of rape is acceptable, as long as it happens to prisoners. But the crimes that Neo Molaudzi or any other inmates commit (however appalling they may be to us) are irrelevant to this issue. Rape is never part of the punishment. Rape is wrong in all instances.
Male victims of prisoner rape tend to be targeted over and over again: other inmates force a feminised identity on them and they are regarded as “women” for the duration of their incarcerations, and subjected to ongoing sexual abuse as a result.
The dynamics of rape in prison reflect the lower status afforded to women in our society and the same regressive gender norms that result in high levels of violence against women outside of prison.
Inmates who are raped are also at great risk of contracting HIV because of the higher risk of transmission with unprotected anal sex, and additional health risks at play in the prison environment. As of March 2013 there were 40 685 HIV-positive inmates on DCS records, equal to about 26.7 percent of the prison population (though actual prevalence is probably higher).
Organisations like Just Detention International, Sonke Gender Justice, and Nicro, who are working with survivors of prison rape, can attest to the difficulties of reporting rape in prison. Even if reported, few services exist to support victims inside. Vital post exposure prophylaxis is not easy to obtain or consistently offered.
Psychological support is rarely provided – and tends to be totally absent from remand facilities. Where it is available, it is insufficient as the department battles to fill even its existing posts.
A common theme among survivors’ stories are their painful experiences of having medical treatment denied, or being told they don’t deserve assistance because of the crimes that got them into prison in the first place. And NGOs may also not be prepared or resourced to work with ex-inmates. It is not surprising then, that many survivors feel overwhelming hopelessness and attempt or complete suicide.
Badenhorst is not alone in his opinion. Ex-inmates who are survivors have attested to other magistrates expressing similar views – that prisoners must accept their brutal fate because this is the state of affairs, or even worse, that it is fine for prisoners to be raped because they are in prison.
Magistrates, tasked with applying the law with absolute objectivity and integrity, must take rape in all contexts seriously.
As long as these problematic views continue to be expressed in court and held by administrators of justice, there is an implied free pass to rape in prison, and state officials will have little reason to stop it from occurring or to support victims of rape.
This has grave consequences for our society as a whole.