A Johannesburg man is taking a bold step, challenging provisions of the Children's Act that he argues unfairly burden male victims of rape with parental responsibilities. This case, which could have far-reaching implications for the legal landscape in South Africa, is raising crucial questions about gender equality and the outdated perception of rape as a crime solely against women.
The applicant, whose identity remains protected, is challenging the definition of a "parent" in the Children's Act, which currently excludes fathers of children conceived as a result of the mother being raped. He argues that the same principle should apply to fathers of children conceived as a result of their own rape.
In his court papers, the man details his harrowing experience, stating that he was raped by a woman. He agreed to sexual intercourse on the condition that they use a condom, but alleges that the woman removed it without his consent.
"I was confused, angry and felt violated as I had not consented to this action," he stated in the court documents. "I have been trying to grapple with what happened, and it has been difficult to receive assistance even from the police, as society generally believes that a man cannot be raped or sexually assaulted. I am currently undergoing counselling for this issue," he revealed.
The woman subsequently fell pregnant, and despite never meeting the child and having no desire to do so "in light of the circumstances under which the child was conceived," the man is now embroiled in a legal battle over maintenance.
He argues that the current definition of a parent in the Children's Act violates his and other men's rights to equality and constitutes discrimination on the grounds of gender.
"The legislature, when drafting the act, specifically the impugned provision, had in mind the common law definition of rape. However, the Criminal Law (Sexual Offences and Related Matters) Amendment Act 2007 repealed the common law offence of rape, and replaced it with a new expanded statutory offence of rape. As such, men too are and can be victims of rape by women," he explained.
He further argues that the legislation infringes on his right to dignity and, by extension, family life, by imposing a "lifetime obligation" on a rape victim. He also maintains that it is not in the best interests of the child for parental rights to be assigned to him.
"Each and every child deserves to be loved and cared for in the manner that is dignified … I have no intention to meet the child or be part of their life," he stated.
The man's lawyer, Mabu Marweshe, believes this case has the potential to significantly destigmatize a subject that remains taboo in many circles.
"This will really be impactful – positively so – in that it might even encourage men to open up and approach the police – if possible – where they have become victims of rape," Marweshe said.
He further emphasized the need for parity between male and female victims of rape.
"The law as it is – in terms of the Constitution, it’s clear the Children’s Act discriminates against men who are victims of rape. So, you’d then have parity being restored," he stated.
The case, which has been filed against the Ministers of Justice and Social Development, as well as the woman who allegedly raped the man, has the potential to reshape the legal landscape and challenge deeply ingrained societal perceptions. It is a powerful reminder that rape is a crime that can affect anyone, regardless of gender, and that the law must reflect this reality.
This case is not just about one man's personal struggle but about the need for a more just and equitable legal system that protects the rights of all victims of sexual violence. The outcome of this case will have significant implications for the future of gender equality and the fight against sexual violence in South Africa.
