We need to deal with rape as a social not just a legal issue – Fellows’ seminar by Lillian Tibatemwa-Ekirikubinza

14 March 2018

“There is a need to change the social not just the legal understandings of rape in Uganda,” said Lillian Tibatemwa-Ekirikubinza, Judge in the Uganda Supreme Court and recently appointed member of the International Commission of Jurists.

Tibatemwa-Ekirikubinza was informing STIAS fellows about her research around societal definitions of rape in Uganda, specifically looking at the issue of what counts as consent.

“Like with any other social phenomena, crime can only be understood by interrogating the broad social context within which it occurs. To understand issues of sexuality and sexual encounters between men and women, it is crucial that the discussion is placed within the discourse of gender in Uganda’s patriarchal society,” she said. “Gender and sexuality cannot be thought of as distinct and separate categories but as intimately related. We must therefore answer the question: How do societal expectations of masculinity and femininity influence sexual behaviour? And, is there a possibility that societal perceptions seep into both statutory law and into judicial interpretation of statute.”

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STIAS Fellow Lillian Tibatemwa-Ekirikubinza during her seminar presentation on 8 March 2018

Tibatemwa-Ekirikubinza presented preliminary results of her qualitative study which included in-depth interviews and focus group discussions with a total of 296 respondents: 200 community members from three districts, 56 men incarcerated for rape and 40 college students. Her preliminary results thus far only deal with data from 120 in-depth interviews which included equal numbers of males and females.

The questions asked concerned the definition of rape by the participants; whether there is a difference between use of force and lack of consent; and, whether the existence of a ‘relationship’ prior to the unwanted sex informs whether what occurred would be defined as rape. There were also questions focusing on evaluating the prevalence of rape-supporting perceptions.

“Reducing crime must be preceded by interrogating society’s views on the crime in question,” she said. “Knowing what society considers acceptable behaviour may explain the prevalence of an offence.”

“We need to understand if Ugandan men, on the one hand, and women, on the other, perceive rape differently and also the influence of age and level of education.”

“The law in Uganda regarding rape is conservative,’ she continued. “It only covers sexual assaults of women and does not recognise men as possible victims. It is concerned with the absence of consent either because force was used or because the consent was a result of fraud and falsehood. Prosecutors must also deal with the issue of the state of mind of the accused. If there is no mental fault, it is not regarded as rape. Honest belief in consent is enough to free the accused from criminal liability even if that belief might seem unreasonable.”

“My findings show there is a clear acceptance that stranger rape should go to court but that if the couple are in an intimate relationship it either is not rape or even if it were accepted as rape due to use of force, it should not be reported. Rape in intimate relationships is not seen as a court matter.”

“Uganda is largely a patriarchal society. Dominance, aggression, control and assertion are linked to masculinity while femininity is linked to weakness and dependence,” she added.

“Sex is also seen as a female resource to exchange with men,’ she continued. “And in a society where men still largely manage the economic resources this has serious implications for protection of women’s rights.”

Her findings show a high level of victim blaming regarding rape. A woman who willingly goes to a man’s apartment and a woman who indulges in foreplay – these were seen by the study respondents as implied consent to sex.

“Eighty five per cent of respondents, including 97% of female respondents, indicated that if a woman indulges in kissing and heavy petting then she is ready for sex.”

Gender stereotypes

Respondents also blamed females for igniting what they described as normal male sexual urges. “Men are praised for their sexual prowess,” said Tibatemwa-Ekirikubinza. “It is seen as reaffirming their sexuality. If a man acts differently, he is not a man.”

“By contrast, women are socialised into believing that a virtuous woman is not interested in sex and doesn’t experience desire. They are therefore depicted as the sexual gatekeepers.”

“There is also an interpretation of female resistance as pretence – as feigning a lack of sexual interest because it would not be morally upright for a woman to display such interest. Eighty per cent of the respondents said that women say No when they mean Yes.”

Based on preliminary analysis, Tibatemwa-Ekirikubinza found these ideas to be fairly consistent across the different communities sampled as well as across gender and age groups.

“Sex is still discussed in euphemism, innuendo and subtle suggestions,” she said. “Consent is a mental state and usually not verbalised – it is determined on the basis of inference. Inference can be based on incorrect information or on objectionable, offensive, patriarchal assumptions.”

“Consent implies female agency but it remains responsive – it is the male making the proposal,” she added.

She also pointed out that often society tells women to take measures to prevent rape rather than telling men to stop raping. The onus is on the woman to protect herself. “This has even been adopted by institutions working to prevent rape,” she said.

Tibatemwa-Ekirikubinza also referred to the replicated victimisation that can occur within the courtroom in a rape case. Women are hesitant to take a case to court due to the insensitivity of the court procedure and a general mistrust in the judicial system.

“Rape trials are not easy for the complainant,” she said. “However, many judges in Uganda have over the years become more gender and culturally sensitive, aware that there are things a female complainant won’t say in a public courtroom.”

“Other than stranger rape very few rape cases come before the Ugandan courts. Rape is also still considered as an offence against morality not as assault.”

Tibatemwa-Ekirikubinza noted that there is a need for improved legal and judicial processes but, as this study has shown, also an urgent need to address societal perceptions. “Knowledge about society’s views towards the conduct in question is invaluable in developing strategies to curb the crime.”

Michelle Galloway: Part-time media officer at STIAS
Photograph: Christoff Pauw

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