Fezekile "Khwezi" Kuzwayo is dead. Amid a news cycle that provokes outrage and contempt, this is one piece of news that leaves us only and utterly sad. There is no need to insist that the court got it wrong in its acquittal of President Jacob Zuma to see in Khwezi a victim of gross injustice, a woman ultimately defeated. The law relating to rape allows two alternative universes to exist simultaneously: for the complainant it may be, in every sense, a rape and yet the man who had sex with her without her consent is by law no rapist. That is because standards of proof regarding rape convictions require that it be established beyond a reasonable doubt that the perpetrator knew or appreciated the possibility that the sexual intercourse was without the woman’s consent. If there is no such appreciation — even if the complainant did not consent — there can be no conviction. A decade ago, I wrote that radical divergence between what the complainant experiences and what the accused understan...
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