The gender of crime and punishment in southern Africa: The death penalty for violence against African women in Natal and South West Africa, 1845-1954

This study draws upon several thousand rape and murder trials from Natal, South Africa and the mandated territory of South West Africa (present-day Namibia) to explore the relationship between criminal law, African gender relations, and state formation under British colonial rule, the apartheid state, and the League of Nations Permanent Mandates Commission. The study builds upon historiography that characterizes the civil law -- as embodied in customary law regimes -- as a tool of racial segregation and gender inequality in that chiefs and magistrates applied customary law to Africans in a manner that contracted the legal rights of African women, while people of other races were subject to the Roman-Dutch law. This study asks whether criminal law played a similar role in advancing racial segregation. The analysis also explores whether the subordination of African women was as central to the formulation of criminal law as it was to civil law, and whether criminal law protected African women from violence by African men. The study concludes that while civil law advanced segregation, criminal law was a space of legal integration. The devolution of civil jurisdiction to chiefs helped create a segregated legal system and social order. In contrast, violent crime undermined social and state stability. The white-run courts that applied Roman-Dutch law maintained a monopoly on trying capital crimes committed by people of all races in order to maintain state stability -- not out of a specific desire to regulate violence between African men and women. Therefore, African gender relations were not directly central to the formulation of criminal law. Nevertheless, trials for violence against women profoundly affected both the application of the law and the lives of African women. Pre-conceived judicial notions about African society and sexuality coalesced with the cultural defenses of African male witnesses to create an overall culture of legal leniency towards violence against women. African women were consequently disadvantaged under both the civil and criminal law.