Gay activists allowed as friends of lower court

by Franny Rabkin

FOR the first time in history a gay advocacy group has been admitted as a friend of a magistrate’s court — to lead expert evidence in aggravation of sentence for a hate crime case.

Earlier this year the government set up a task team to look into drafting legislation on hate crimes — those motivated by hatred for a person due to their being part of a group defined by criteria such as race, gender or sexual orientation.

But in the meantime, OUT-LGBT Well-Being, a Pretoria-based advocacy group, has used what is already there in the law to try to secure a stricter sentence for a hate crime.

Last month, three men were convicted of assault with intent to do grievous bodily harm after they had beaten up a young gay man in a bar. He was punched, struck with wooden chairs and hit on the head with a metal spanner.

While he was being beaten, the three men called him “moffie” and “faggot”. The victim also testified that one of his attackers had said he had no reason to live because he was gay.

The three are yet to be sentenced. Beyond a minimum sentence, this is left to the discretion of the magistrate , who looks at the circumstances and decides what is appropriate in each case.

OUT’s Juan Nel said that, in this case, when deciding the sentence, the magistrate should take into account that this was not just an ordinary assault, but was also a hate crime and that such crimes had certain effects on the victim, his community and society at large.

In OUT’s application to intervene as a friend of the court, Mr Nel said a number of studies had shown that victims of violent hate crime suffer from higher levels of psychological distress than victims of ordinary crime. Hate crimes “attack a person’s identity and thus have an impact on self-esteem and self-worth”.

Hate crimes were also “message crimes” — the victim was seen as a representative of the broader group and the attack then sent a “clear message” to the rest of the community, he said.

Prof Nel gave evidence on Friday as an expert on hate crimes. More witnesses will be called when the sentencing hearing continues next month .

While magistrates’ courts do not have a specific rule allowing for the admission of friends of the court (like the high courts do), OUT successfully argued that the existing rules could be interpreted to allow for it.

OUT’s attorney, Kerry Williams, of Webber Wentzel Attorneys, said the ruling by Benoni magistrate Seka Monaledi was “trailblazing”.

“It’s an extremely positive development in the magistrates’ courts because it means that in the future, civil society organisations will be able to put this kind of evidence before the courts,” she said.

rabkinf@bdfm.co.za

OUT-LGBT Well-Being is an Atlantic grantee.