Tim Cohen’s recent piece about the battle between Sipho Pityana and AngloGold Ashanti adds to the dust storm of discussions over the past few weeks relating to sexual assault cases. We have seen court judgments, where rape convictions are overturned because oral sex is deemed to constitute tacit consent to penetrative sex; and where magistrates infantilise women who discuss rape publicly. We have seen Twitter threads that applaud the legitimisation of rape and public commentators casting aspersions on the veracity of women’s claims of sexual violence.

In all of these discussions, judgments and reports, we see an insidious resuscitation of a host of mantras and prejudices that we had hoped were behind us as a country. Cohen’s piece provides an opportunity to separate the interlaced strands of fact and law, from fallacy, fetishisation and prejudice.

There are few people in South Africa who will openly contest that gender-based violence is a “threat to our common humanity”, as President Cyril Ramaphosa said in his comments in response to the series of grisly femicides in late 2019. Following the rape and murder of Uyinene Mrwetyana, Leighandre “Baby Lee” Jegels and Ayakha Jiyane, South Africa was clear in its admonishment of those who perpetrate sexual violence and loud in its commitment to end gender-based violence. 

And yet, when individual women make allegations of sexual violence — be it rape, sexual harassment in the workplace, sexual assault by health professionals — the most common response is that their complaint is false; is being used to strike a blow in corporate or political warfare; is part of a conspiracy; or is retaliation by a scorned woman, seeking retribution for any number of hurts.

Ironically, this response suggests that women have the power to ruin a man’s career or life simply by making the allegation of sexual harassment. The reality is different. More often, it is the complainant who finds herself ostracised from her field of work, her society or her family. One of the most devastating aspects of sexual violence is how disempowering it can be.

And let me be clear: sexual violence includes sexual harassment. In the discussion about the sexual harassment complaint against Pityana, Cohen states that “whether, even on her version, they constitute sexual harassment is an open question”. Why is it an open question “even on her version”?

The report compiled by an independent and senior lawyer, advocate Heidi Barnes SC, found that what happened constituted sexual harassment and that Pityana was at fault. What more could you possibly want? Moreover, the harassment in Cohen’s article is described in a three-sentence summary. It is not a description that covers the full gamut of fear and violation that complainants experience.

Sexual harassment is difficult to reduce to one moment; one action; one set of words. It is often amorphous and intangible. It is usually a continuum, where the perpetrator establishes a type of engagement with the harassed person that takes them outside of the work context. At first, this is legitimate and then over time, there is a turning point where the perpetrator transitions from working, to propositioning. This can be devastating and frightening. In one moment, a person’s entire understanding of the situation is shattered — as is the realisation that the person she is with does not revere her as a professional; but is rapacious and untrustworthy.

Sexual harassment is not only rape; it is about creating a climate of fear and violence. It includes a range of overtures veiled as threats; grooming; harassment; forced kissing; inappropriate touching and commentary; to physical assault. All of that is sexual harassment and all of this is sexual violence. 

Throughout history, whenever women have spoken out about gender-based violence, they have been labelled as liars, hysterical and vengeful. During apartheid, judges spoke about women having “a deceptive facility for convincing testimony;” that their complaints are based on “flights of fancy;” or that “women are habitually inclined to lie about being raped.” Based on the public discourse in recent weeks, it appears this belief continues well into the democratic era.

The fetishisation of false reporting is disturbing, given that the airtime it receives in the public discourse is entirely disproportionate to its occurrence. While statistics are difficult to produce, given that there are so many different interpretations of what constitutes a false claim, the number of false claims of sexual assault is minimal, roughly 2-5% worldwide (depending on the statistics one uses).

If there is no evidence of mass false reporting, why is this the standard belief in response to complaints about gender-based violence? I propose it is because we are still a highly sexist society, much as we are a highly racist society, as Gareth Cliff’s recent comments reveal. The arrogance of a white man telling a black woman that her experience of racism is “irrelevant” is an example of the blight on our constitutional democracy. Underlying this statement is a white population that actually agrees with the principle but probably would never say it as bluntly.

The undercurrent of continued racism — and sexism, homophobia, ableism, classism — is dangerous precisely because it is hidden in innuendo, bleeding insidiously into the intimation of inferiority. It is so subtle that we don’t see it until a shocking statement is made bluntly; or courts gag women from talking about their experience of rape (several such cases have made their way through our court systems recently); or men claim that unless there is physical force, the conduct of people such as Sipho Pityana can never be sexual harassment.

This is exacerbated by the recent overturning of the conviction of rape in the case of Coko v S, which has resurrected popularist tropes about “ball burning” and the entitlement of men to engage in sex with other persons irrespective of whether there is consent. This is the idea that there is a point of no return; that once “foreplay” starts, there is no right to resist sex. This is wrong. Sex can only occur with consent. Otherwise, it is rape.

It is important to talk about power imbalance, especially in the workplace. Given the fact that men still hold most senior positions in the workplace, there is a de facto asymmetry of power, where men control women’s professional lives. This power imbalance demands a greater interrogation of the notion of choice women have when facing sexual harassment in the workplace. The process of making and executing choices regarding sexual harassment, including the ability to refuse romantic or sexual overtures, or to vocalise a sense of violation or fear, is not as neat, for example, as consenting to buy or sell a motor vehicle.

The power-control dyad squeezes the contours of true choice. A person’s ability to escape a situation described in Cohen’s piece, her control, are in a compression chamber of variables that reduce the person’s freedom to reject the advancements and to seek accountability. The power-control factor creates an exhausting environment for women who must tap-dance around an array of impossible situations. And this is why reporting often happens long after the event occurs.

Thankfully, the Constitutional Court has recognised that a delay in reporting is very often a characteristic of sexual violence cases, that power and authority, threats and shame, often make it seem impossible for victims to report what happened. The intimation that the delay in reporting somehow denudes the veracity of the complainant’s claim against Pityana, is both wrong in law — and in life.

Weaponising sexual harassment claims is one of the many ways in which industry and society undermine women. Suggesting that claims are used to target or persecute those with power, adds a narrative to the already bloated slew of tropes about women as liars. Sexual harassment claims are typically against people with power. This is because sexual harassment often is about abusing positions of power. But that does not mean that the person making the claim is a pawn in the battlefield of someone else’s war. This not only denudes a person of their autonomy; it also fuels the narrative that women have an ulterior motive when levelling allegations of sexual harassment.

The real weapon here is that while we have a country that speaks about ending gender-based violence, in practice we have no intention of doing that. If we believe the staggering rates of violence against women, that means there are staggering rates of men who commit violence. Violence is not perpetrated in the abstract or by a handful of wicked men. Men who commit sexual assault, including rape, domestic violence and sexual harassment, rarely admit to such conduct. The fact that Pityana and Coko denied the allegations against them does not negate the claim. The current narratives constitute an appropriation of victimhood by the perpetrators and betray our alleged aspiration to root out gender-based violence in South Africa.

The woman who came forward and who took the step to complain about what happened to her has now been cast as a pawn in a vicious battle waged by the corporate and political powers in the country. I wish to say to that person, and the millions in similar positions, that they are not pawns. That person is someone who was hurt and there are millions of us who see you and support you, and the millions of others — women, non-binary persons, men — in your position.

This dust storm of controversy about Pityana and Coko has revealed the insidious latent prejudice, patriarchy and misogyny that resuscitate the narrative that women should never be trusted; that women must be disembowelled or hung from a tree before we recognise gender-based violence. But here’s the truth: one in three women reading this will know from personal experience that what I’m saying is true; and every woman reading this will know someone who has experienced some form of sexual violence and assault.

The narrative of pawns and liars essentially criminalises and dehumanises victims and survivors, relegating them to an insignificant sideline. And if we continue to do that and report in this way, give judgments in this way, without the nuance, without the full explanation and information about the way in which trauma, harassment and power work, if we continue to approach it on that basis, then we will fail every person who has had their bodies, beings and minds ravaged by gender-based violence. DM

 Prof Bonita Meyersfeld is an associate professor at the Wits University School of Law and an advocate at the Pan African Bar Association of South Africa and the Johannesburg Bar.