The past few weeks have been jarring for South African women as, not only were the murdered bodies of 12 women discovered in Gauteng, but allegations of sexual assault were also levelled against top cop Shadrack Sibiya.

Among the questions women in this country have been asking themselves since these allegations first made news headlines is, “If top cops are enthralled in such allegations, who is going to protect us?”

Sibiya stands accused of sexually assaulting an 18-year-old who he allegedly plied with alcohol to the point of losing consciousness, the grooming of a 16-year-old which involves the acquisition of her sexually explicit videos, the human trafficking of three young women for the purposes of sexual exploitation and a host of other allegations.

University of Cape Town PhD candidate Aphiwe Mhlangulana, whose research is focused mainly on activism around gender-based violence (GBV) and technology-facilitated gender-based violence (TFGBV), agreed with the South Africans who have taken to social media to call for the re-evaluation of the age of consent as the consensus is that 16 is too low.

Her observation is that the age of consent is one of the layers in a bigger conversation about the normalisation of rape culture and GBV.

As a 16-year-old is a minor of high school-going age, Mhlangulana said not only are there power imbalances between the teenager and Sibiya, but the power dynamics between the top cop and the alleged victim’s family should also be examined.

“Before unpacking things like the age of consent, we first need to examine the root causes of GBV and TFGBV,” she cautioned. “We must look at rape culture within the South African context and our history with violence.”

According to Sibiya, the teen’s explicit videos were initially shared by the girl’s own father, which raises both legal and moral questions. In addition to the unequal power relations between Sibiya and the teen’s family, Mhlangulana says it is critical to also examine his position in society, patriarchy and other factors.

“Even if someone shares their videos with you, you cannot share these with other people without the person’s consent. Doing so is image abuse and TFGBV, so not only was Sibiya in the wrong here but the father was too.”

To understand what truly transpired between the teen’s father and Sibiya, Mhlangulana says we need to interrogate whether any threats were made against the father to coerce him into sending these videos, what the power dynamics were in this instance and what conditions existed for the father to share the images.

However, these questions must be examined cautiously, without exonerating the father from the fact that he shared explicit pictures of his child.

During court proceedings, it emerged that Sibiya had shared the videos with his colleague. He alleges that this was done to seek legal advice.

“Sibiya also forwarding the videos to his colleagues was very wrong. It is a form of technology-facilitated gender-based violence, as they are sharing the explicit images of a minor,” she explained.

While South Africa doesn’t specifically have laws that govern TFGBV, anyone under 18 is still considered a minor even though the legal age of sexual consent is 16.

The Films and Publications Amendment Act of 2019 provides specific legal definitions and protections concerning the exploitation of individuals under 18 years of age.

This also raises a lot of questions about what Sibiya’s course of action should have been upon discovering that the teen’s father was in possession of these videos, and what legal consequences he should face for obtaining and subsequently sharing the videos with other adults. Given that the colleagues who received the videos are now also in possession, what does this mean for them legally?

Section 16 of the Cybercrimes Act of 2020 criminalises the unlawful and intentional electronic disclosure of an intimate image of a person without consent. This suggests that even if the 16-year-old had been an adult, distributing her videos without her consent would still be unlawful.

“If the child did not consent to the videos being shared among all these people, this law could also be put in place against both Sibiya and the father,” Mhlangulana said.

Essentially, as someone with several years of experience in law enforcement, she added, Sibiya should know the processes that need to be followed instead of just forwarding the videos.

Where Sibiya goes on to claim that the teenager subsequently sent him more videos herself, there are parallels to be drawn between this case and the Mbenenge Tribunal in terms of the power dynamics between the alleged victim and the alleged perpetrator. 

His alleged victim might have been a full-fledged adult, but he was in a much more senior position, which raises similar concerns about whether or not it’s even possible for women to safely navigate sexually motivated conversations with men of a certain hierarchy.