A few years back, during his candidacy for the presidency of South Africa, Jacob Zuma was accused of rape by a longstanding family friend. I don’t know enough about the case to say anything about the legitimacy of the verdict—contemporary reporting depicts disgusting vilification of the accuser and support of the politically powerful accused—but Zuma claimed the sex had been consensual, and was ultimately acquitted. Last May, ANC Youth League President Julius Malema said the following in response to a question about why he believed Zuma’s version of events:
When a woman didn’t enjoy it, she leaves early in the morning. Those who had a nice time will wait until the sun comes out, request breakfast, and ask for taxi money.
Now, especially in the context of an alleged rape by a family friend of many years, this is an incredibly dumb reason to discount the accusation. In a country where rape is appallingly common—and commonly goes unreported—it’s also irresponsible for a prominent figure like Malema to cavalierly imply that any accuser who doesn’t fit his cartoonish preconception of how a victim behaves can be dismissed as a liar. But I’m disappointed to see a writer at Feministing calling for a victory celebration in the wake of a court ruling finding Malema guilty of discriminatory hate speech and slapping him with a $7,000 penalty.
Even in the context of South African law—which doesn’t appear to privilege speech quite so zealously as the U.S. system—the decision seems questionable, since the country’s hate speech law apparently requires that one intentionally seek to inflict harm on the basis of race, gender, or sexual orientation. And while everything I’ve read about the vilification of the accuser in this case is pretty horrifying, there are (unfortunately) cases like this that ultimately come down to who people find more credible: An accused who says the sex was consensual, and an accuser who says it was rape. This not only raises obstacles to victims seeking justice, but often opens them to all sorts of slanderous character attacks, which we rightly deplore. But it’s basically impossible to have any meaningful discussion of cases like these without talking about why one believes one side or the other. Even when the reasons offered are dumb, it sounds like a phenomenal mistake to class such statements as deliberate attempts to inflict gender-based harm.
Feministing’s Lori Adelman calls the ruling “cause for celebration” because it sends a message to “rape apologists” that attempts to stigmatize victims who come forward “will not be tolerated without legal ramification.” I think it sends the message that one ought to avoid any public discussion of controversies related to race or gender. If you cannot tell in advance what kind of speech will be deemed hateful and incur penalty, because you can do it inadvertently and the harm can be indirect, the only safe strategy is to give the whole area a wide berth. And I don’t know what reason there is to think a legal cudgel of that breadth couldn’t be used by those in power against critics. Is there any reason to feel a priori certainty that some supporter of Zuma (acquitted, recall) couldn’t find a pretext for a similar suit against some opponent who spoke out in solidarity with the accuser? Or perhaps a political cartoonist who invoked the case? Recall, after all, that Zuma ended up filing a raft of defamation suits against several media outlets that covered the rape trial. Is there reason to think he wouldn’t have added a charge of hate speech if he’d thought of it?
If you want to create a climate in which South Africans finally feel free to speak more openly about rape cases, in other words, you probably shouldn’t be celebrating a decision that punishes someone speaking about a rape case. And if you want to claim that you care at all about the principle of free speech as such, you probably shouldn’t be quite so eager to find some reason it doesn’t apply to people you revile.