The recent brutal rape and murder of Duduzile Zozo reminds us that despite having policies in place for many years, South Africa seems unable to reduce gender-based violence. Zozo was found dead at the home she shared with her mother and three sisters in Thokoza on the weekend of 29 June 2013, with a toilet brush in her vagina. This is one of several high-profile rape and murder cases of a woman in South Africa this year. The first was the rape and murder in February of 17-year-old Anene Booysen. Booysen was found by a security guard the morning after she had been gang-raped and mutilated at a construction site in Bredasdorp, in the Western Cape.

These are but two of the more than 47 896 rapes that the police recorded throughout South Africa in the past year (2011/12). It is chilling to think that the daily average of 132 rapes reported to the police is in reality a small proportion of the actual scale of the problem.

Zozo’s rape and murder drew vocal protest from organisations representing lesbian, gay, bisexual, transgender and intersex (LGBTI) people, who labelled the rape a hate crime. Indeed, rape motivated by prejudice against lesbians has become so common in South Africa that it has even been termed ‘correctional’ rape by homophobic men and women. This offensive term refers to a practice whereby men rape gay women to punish them for being lesbians. The practice was first highlighted in 2008 after the brutal death of Eudy Simelane, who was raped, stabbed 25 times and robbed before being murdered.

Organisations representing the LGBTI community and other civil society groups have correctly demanded that the government take radical action against crimes of this kind. One of their demands is for a new law that defines violent acts of homophobia, racism and other expressions of prejudice as ‘hate crimes’, and introduces harsher penalties for those found guilty of committing such crimes.

The proposal to develop hate crimes legislation stems from the belief that when crimes are perpetrated against groups of people because of their gender, sexual orientation, race, religion or ethnicity, this represents a form of violent discrimination – these are crimes motivated by prejudice. As a result, these types of crimes may cause more pain to the victim, and harm to society, than similar crimes that are not motivated by prejudice.

Yet, while it is essential to support any efforts to reduce all forms of discrimination, hate crimes legislation raises some difficult issues. The problem of gender-based violence, especially rape, is particularly serious in South Africa, where, according to 2009 Medical Research Council research, one in four men in the Eastern Cape and KwaZulu-Natal admitted to having raped a woman. According to figures published in the journal South African Crime Quarterly, an analysis of rape cases in Gauteng (Johannesburg and Pretoria) revealed that in the sample of rape cases studied by the researchers 87% of the victims were black women, and in 15% of cases of single perpetrator rape the victims were under the age of 11.

The question is whether there is something to be gained by calling the rape of Zozo a ‘hate crime’ and that of Booysen a rape, merely on the basis of the victims’ sexual orientation. Surely both rapes were motivated at least by the idea that women are inferior to men – and thus by prejudice. While the one form of prejudice – homophobia – is recognised and campaigned about, as a society South Africa has been far less vocal about the prejudice that informs patriarchal notions of gender and creates the conditions that allow women to be seen by men as sex objects. If that is the case, should all rape be considered a hate crime? Would that bring the country any closer to justice or to reducing the prejudices that informed both crimes?

Booysen and Zozo are both women. The nature of the attacks on them is symbolic of prejudice against women. The call for a separate law to be applied to one group of women, and not the other, risks the creation of a hierarchy of prejudice within which some forms of prejudice are more acceptable than others.

The Sexual Offences Act (32) of 2007 says that any person who unlawfully and intentionally commits an act of sexual penetration with a complainant without their consent is guilty of the offence of rape. Despite the legal ban on rape having been in place in one form or another for many years, and despite a sentencing law that mandates lengthy prison sentences for the perpetrators of rape and other violent crimes, the mere existence of these laws does not seem to have had any positive effect on the occurrence of rape. Thus, it would be fair to say that the problem of rape in the country is not occasioned by the absence of an appropriate law, but rather by societal norms – such as those that assign particular qualities, and position in society, to people on the basis of their sex.

Research about rape has shown that it is associated with the belief that men have a right to a woman’s body, and that it will be most prevalent in societies in which gender inequality is entrenched. Social reform and norm change can be achieved, but it requires that South Africans agree that gender inequality must be eradicated, and we seem very far from that.

Advocates for hate crime legislation draw important attention to the need for the state and society to act decisively against prejudice. Unfortunately, on its own a law against hate crimes is unlikely to change the societal norms and values that inform and motivate violence and hatred. South Africans need to think deeply and critically about the unintended consequences of elevating one form of prejudice above another. What are the possible consequences of doing so? Will legally emphasising the harm caused by some forms of prejudice result in ‘normalising’ others? The country still has a very long way to go to eradicate, or even reduce, prejudice in all its forms, and South Africans should be cautious about relying too heavily on the criminal justice system to send the message to society that prejudice cannot be tolerated.

Reitumetse Mofana, Intern and Chandre Gould, Senior Research Fellow, Governance, Crime and Justice Division, ISS Pretoria