The difference between gay and bisexual is more than just five letters and more like 50 shades of gay. And when one has disclosed entertaining extreme BDSM fantasies, that’s not just a tired spin on a familiar book title: it’s really the crux of an issue that came to the fore of the Dewani murder trial today. Much to many people’s surprise, Western Cape Deputy Judge President Jeanette Traverso declared evidence further detailing murder-accused Shrien Dewani’s sexuality “inadmissible”.
In a Daily Maverick article, Marianne Thamm shared the below transcript from the Dewani murder court case proceedings (abridged):
T: “Mr Dewani does not deny he is bisexual [emphasis mine]. He does not deny he is on Gaydar.”
M: “His orientation there was that he was gay [emphasis mine] and not out. In the content Mr Dewani comments on the situation he finds himself in. He was conflicted about whether to get married or whether to come out.”
T: “Does that show motive? That [being conflicted] is true for many people, some of them sitting in this court.”
M: “The court will have a better perspective of the context. The weight the court attaches to this can be determined later. This is not irrelevant information.”
At this point Van Zyl interrupted the exchange.
VZ: “In these emails between the accused and another man between June and August 2009, they discuss sexual preferences and what they will do to one another. They have a discussion as to whether to come out and the marriage. The communication is that marriage is a serious matter and should not be entered into lightly. The third party says he is sure the family will support you [Dewani]. These are emails with graphic detail. There are only three references to the fact that the accused is conflicted.”
T: “How is that relevant to the accused and what happened on 13 November 2010?”
VZ: “It is prejudicial to the accused as it involves his character and the time frame is so big. We object”
T: “Mr Mopp why is it relevant?”
M: “We will lead evidence that in September 2009 the accused expressed a similar conflict to another witness.”
T: “But he now says he was conflicted. (The judge is referring here to Dewani’s statement at the start of the trial that he is bisexual and has had sex with men) What is the relevance other than a quest for motive?”
M: “There is a factual matrix that a person at a distance would find peculiar. The undercurrent to all of that indicates it was not as clear-cut. The accused’s sexuality is not a matter we can run away from.”
T: “It [the accused sexuality] is not in dispute” and later “ I have considered the request and I rule the evidence is inadmissible on the basis that it is not pertinent.”
But the accused’s sexuality is in dispute. The people in court are speaking past one another. A bisexual isn’t the same thing as a homosexual. The difference is that a bisexual experiences attraction to both men and women, whereas a homosexual only experiences attractions to members of his or her own sex. To help clarify how the court saw the situation, Marianne Thamm gave this hypothetical scenario:
“Let us assume, for argument’s sake, that Shrien Dewani is a heterosexual man who has particular sexual proclivities – including fetishes or group sex with other women. This is something he does in private and ‘secretly’. Let’s imagine that he goes online – registers with a site called Heterodar – to connect with like-minded people and there he encounters another woman who appears to understand his predicament. He is set to marry someone but he is conflicted about this. He discusses this with his online contact. They also discuss what they prefer sexually. It is more than likely that had this been the scenario, Dewani’s sexual orientation as a heterosexual man would not have been considered as a motive for the possible killing of his wife.
The issue here – and it is one that is being lost in the ‘red herring’ of sexual orientation – is that what this might all point to rather is the accused’s non-disclosure of his sexual preferences (fetish and group sex etc.) and the subterfuge and deceit surrounding this. His sexual orientation is of no consequence and it is this that Judge Treverso confirmed yesterday.’
In theory, this is spot-on. Sexual orientation doesn’t directly underpin motive in this murder trial. And in theory, the court is correct to reject evidence both on legal grounds and that it may be sensationalism for sensationalism’s sake, adding no value or insight to the proceedings and only turning them into a circus. In theory, it may be true that unburying further details of the accused’s sexual orientation is motivated by the State building a case by playing to the homophobic sentiments of someone inside or outside the court.
But Thamm’s scenario is only accurate as far as Dewani’s sexual orientation doesn’t exclude the possibility of his being attracted to Anni. If he was bisexual or “conflicted” about his sexuality, then there could have been sufficient attraction between himself and Anni for him to go ahead with the marriage. But if he was and is gay without conflict or confusion in that gayness, then there is a huge possibility that the marriage could have brought about a conflict that, as the State would argue, he tried to resolve by arranging to have Anni murdered. There is a huge possibility here that sexual orientation wasn’t a “red herring” but something that could shed light on the situation.
Is the evidence inadmissible? I don’t know. I’m not a lawyer. But I do think it would have been important. I also think it could have been an incredible learning opportunity. Hiding one’s sexual orientation doesn’t always lead to murder, but it does sometimes bring about stress leading to suicide and other extreme actions. And that must be understood. I do not know how the law picks out which evidence must or must not be admitted in court, but as a member of the public who is affected by the workings of the law, I would have been more comfortable knowing that the legal system’s arbitration of importance, where evidence is concerned, is somehow in line with my own. If the difference is this big, what is there for me, a layman, to understand about the law I fall under?
However big that difference is, I do stand by my belief that the difference between gay and bisexual is more than just five letters but 50 shades of gray. Which shade of gay Dewani fall into, and to what degree could that have informed our understanding of the causes leading up to Anni’s death, is a card now beyond the State’s ability to play with. Dewani gets to keep it as close to his chest as he decides.