A Progressive Constitution Meets Lived Reality: Sexuality and the Law in South Africa

This paper examines two cases of homophobic hate crime in post-apartheid South Africa. The paper illuminates how activists have used the legal system to address the violence faced by many lesbian, gay, bisexual, transgender, queer or intersex (LGBTQI) South Africans. Drawing on court transcripts, the experience of the lawyer in one of the cases and on interviews conducted with activists in South Africa, the article also draws attention to some of the challenges faced by those seeking to secure justice for LGBTQI people. The authors argue that recognising forms of violence motivated by prejudice as ‘hate crimes’ can serve as a powerful legal tool. The article provides a brief overview of the use of the term ‘hate crime’ in the South African context and offers concise accounts of the case studies and observations drawn from them. It also provides a series of recommendations regarding sexuality, violence and the law for state actors (ranging from police officers to judges and policymakers), for LGBTQI activists and educators and for donors.