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105 S. African L.J. 67 (1988)
Rape: The Politics of Definition

handle is hein.journals/soaf105 and id is 77 raw text is: RAPE: THE POLITICS OF DEFINITION COLLEEN HALL* Assistant Lecturer in Law, University of Cape Town A notable characteristic of orthodox criminological research has been its preoccupation with a search for causes. The central question has been 'why does a person steal, kill, become addicted to drugs or alcohol?' and not 'why are certain kinds of behaviour considered deviant in the first place? What functions do such conceptions serve for various individuals and groups in society?'1 These latter ques- tions, representing an important shift in the focus of criminological inquiry, have only recently begun to be posed. Similarly, much rape-related research has been organized around the question 'why do men rape women?' and has taken the definition of rape as given and unproblematic. Feminist- and non-feminist- oriented research alike are concerned with this question, but it is only from the feminist camp that a serious critique of and challenge to the legal definition of rape has arisen. In an effort to understand this social phenomenon, feminist research has refused to view it solely through the eyes of the law and has attempted to break free from the conceptual grip of the traditional, common-law definition. This represents a major contribution to contemporary research on rape. An attempt will be made here to outline the critique and to assess its contribution to current debates on rape. According to the Anglo-American common law and the present South African law, the criminal act of rape consists in intentional, unlawful, sexual intercourse with a woman without her consent.2 The key features of this definition are the following: (a) It involves 'sexual intercourse', requiring penetration of the vagina by the penis.' (b) Such intercourse must fall within the legally predetermined category of 'unlawful' intercourse. The law regards as unlawful every act of intercourse occurring between partners who are not married to each other.4 Sexual intercourse within marriage is thus the only instance of positively lawful intercourse. * BA LLB LLM (Cape Town), Advocate of the Supreme Court of South Africa. Stuart L Hills Demystifying Social Deviance (1980) 2. 2 p M A Hunt South African Criminal Law and Procedure II: Common-law Crimes 2 ed (1982) by J R L Milton 435. 3 R v Theron 1924 EDL 204; R v Giles 1926 WLD 211; R v V 1960 (1) SA 117 (T). Although the intercourse is not punishable unless it contravenes a statutory provision, such as is found in the Immorality Act 23 of 1957, or falls within the definition of a common-law crime.