Beginning in March 2014, female bodies started appearing in the South African town of Thohoyandou. The corpses showed signs of sexual violence. In the four months that it took for the police to identify and apprehend the man responsible, residents lived in a state of vigilant terror as five victims were raped and killed in a neighborhood adjacent to the town's university. Rumors circulated that the women and girls had been dismembered, their limbs, lips and genitals sold for occult uses. Such speculation arose in no small part because the area, formerly known as the bantustan (“homeland”) of Venda, is notorious for its witches and powerful occult practitioners (Mavhungu Reference Mavhungu2012; Minnaar, Offringa, and Payze Reference Minnaar, Offringa and Payze1992). The periodic discovery of mutilated bodies stoked fear of u via, a Tshivenda language word that describes the harvesting of body parts for use in witchcraft.Footnote 1 When Mashudu Mudau,Footnote 2 a young man studying at a local university, was apprehended, the police tried to assure the community: “We now want to put the matter into perspective that none of those murders were ritual-related. No body part whatsoever was removed from the bodies of the deceased and the arrested suspect will be facing charges of murder, rape, robbery and attempted murder.”Footnote 3 Such pronouncements were meant to locate guilt in the disenchanted body of a human man, yet they did little to quell local anxieties that more diffuse and mysterious forces were afoot.
Mudau affirmed popular suspicions about his crimes. In his sworn affidavit, Mudau insisted he had unwittingly been recruited to participate in Satanic rituals. After receiving what he described as a cursed 100 Rand banknote (the equivalent of US$8.60 at the time), he told the Thohoyandou High Court that he often woke up to find himself in strange locations, having spent the night wandering under the influence of occult forces.Footnote 4 While Mudau himself claimed demonic possession, his legal representative attempted to translate his story of possession into a legal argument that would be legible to the judge. His lawyer argued that Mudau had been sleepwalking, an unconscious state that implied an absence of criminal intent and that therefore negated his responsibility. The acting judge was not convinced of either argument, and Mudau was sentenced to nine life sentences, to be served concurrently, plus an additional fifteen years in prison.
Mudau's possession provokes questions about causality and culpability. What sort of moral blameworthiness does spirit possession imply? How is justice best served when wrongdoing springs from such diffuse and unknowable causes? This article takes Mudau's story as a starting point for answering these questions. Drawing on twenty-two months of ethnographic fieldwork carried out in South Africa between June 2014 and March 2018, I will explore the intersection of criminal liability and occult violence.Footnote 5 Research was conducted in and around Thohoyandou as a part of a larger study of legal pluralism in post-apartheid South Africa. I present moments from a popular beauty salon, a regional court I am calling the Khuḓani Regional Court, and a Victim-Offender Dialog, which is an event for new parolees organized by the Department of Correctional Services. I provide an empirical account of the ambivalent ways state sites of “criminal justice” grapple with intentionality in South Africa.Footnote 6 Legal frameworks for understanding criminal liability have difficulty accommodating the notion of spirit possession. And yet, as I show, when imprisoned people are paroled, the state entertains the possibility of bewitchment in public ceremonies of reconciliation.
This article proposes mens daemonica (literally, “demonic mind” in Latin) to describe a state of hijacked selfhood and as an alternative to the mens rea (“criminal mind” or intent) that animates criminal jurisprudence in South Africa and in other European legal traditions.Footnote 7 Mens daemonica and mens rea are both theories of culpability. While the latter seeks blameworthiness in the authentic will of the autonomous, self-governing individual, mens daemonica describes a putatively extra-legal idea of captured volition. The concept of mens daemonica assumes, on the one hand, a field of intentional action that extends outside the boundaries of the physical body, and on the other, a juridical subject in whom intentionality cannot be terminally located. Even as mens rea formally structures interrogations of culpability in the courtroom, I will show how this principle of mens daemonica nonetheless impinges on criminal justice itineraries.
In coining mens daemonica, I am insisting on symmetry between occult and legal regimes of culpability. While this concept is gleaned from stories like Mudau's, violence popularly attributed to occult malevolence, I am not proposing equivalence between South African legal categories and Euro-American ones. Rather, I suggest that by tracking talk of the occult inside and outside of criminal courts, we might imagine alternatives to carceral modes of justice. Mens daemonica is inspired by local talk of the occult, but the analytical move I make—drawing on occult theories of culpability to challenge punitive logics—is not one that my South African interlocutors would necessarily countenance. For most of them, witchcraft in South Africa is lived as a form of violence, and those who commit witchcraft should be punished.Footnote 8 Indeed, as I show, mens daemonica can justify an insatiable demand for retribution. Nevertheless, I argue that this theory of culpability also offers the grounds for reconciliation with and empathy for those who commit harm. In this way, it might inspire an alternative to carceral regimes of justice.
I clarify my purpose in this regard in order to situate my arguments in relationship to the Gluckman-Bohannan debate, “one of the most important debates in the history of the anthropology of law” (Goodale Reference Goodale2017: 15). The debate is often reduced to the question of whether it is appropriate for anthropologists to apply Western legal categories to the study of non-Western practices, with Gluckman cast as the champion of such an approach. This conventional account of the debate misrepresents Gluckman's position (Good Reference Good2015). Like Bohannan, Gluckman was also concerned with studying local legal categories on their own terms but pursued a project that was comparative in its goals. I follow him in this.
Putting mens daemonica and mens rea in the same frame makes explicit two different theories of being and being with others that undergird practices of assigning blame and parsing causality. Mens rea claims an idea of volition based on a “capacity or potential to enact a ‘no,’ the potential not to be determined from without, by an external force” (Ahmed Reference Ahmed2014: 10). In the face of such external forces, mens rea domesticates intentional action to an individual's bounded body. In so doing, it offers a spatially and temporally narrow view of culpability. Mens daemonica, by contrast, assumes a field of intentional action that extends outside the boundaries of the physical body, implicating a vast and ultimately unknowable range of others and objects in a single act of harmful conduct.
I situate this inquiry in a larger moment when criminal justice has taken a definitively punitive turn. In South Africa, as elsewhere, inequalities in employment, income, housing, and educational attainment have been maintained or even widened in the last twenty years and these disparities continue to cut along racial lines (Seekings and Nattrass Reference Seekings and Nattrass2005). And as elsewhere (Wacquant Reference Wacquant2009; Simon Reference Simon2007; Gilmore Reference Gilmore2007), the prison has reemerged in this era of market liberalization and public service retrenchment as a place to warehouse South Africa's poor and unemployed (Alexander Reference Alexander2016: 183–254; Super Reference Super2013). Rethinking culpability through mens daemonica, I ask how we might reimagine justice in South Africa and beyond. I will conclude by arguing that mens daemonica might offer new conditions for redress in the aftermath of harm.
SHADES OF DIABOLICAL
Late July 2014, Fhumulani, Thabelo, and I sat on the porch of a popular beauty salon in Thohoyandou, talking about Mudau. As it was month-end, a time when monthly wage payments and social grants meant there was more money to go around, the two men were in a celebratory mood, sharing two cases of wine coolers. Between sips, Fhumulani shook his head. “A man cannot sleep with a child.” He gestured to the road that passed in front of the salon, pointing to a group of young women walking briskly in the direction of ShopRite. “Not when there are so many grown women out there.” Thabelo nodded. “It is like he was possessed by something. A spirit (muya). It is not possible for someone to do such a thing and be normal.” They sat for a moment in silence, considering Mudau's crimes.
This conversation took place before Mudau's claims that he had been bewitched were made public. Fhumulani and Thabelo discerned spirit possession from the quality and quantity of the crimes Mudau had committed, crimes that went beyond the horizon of human transgression. The number of Mudau's victims and the extreme violence of his acts indexed occult involvement. Mudau's choice of young girls as victims, not just to kill but also to rape, was difficult to reconcile with human intentionality. In such retellings of Mudau's crimes, the girls became younger and younger and the adult victims became older and older. At the same time, Fhumulani's comment about the availability of adult women demonstrated indifference to their desires, and in so doing, located rape of adult women within the bounds of sensibility.
Witchcraft is recognized as a form of spectacular violence, around which there is great uncertainty. In Tshivenda, the majority language spoken in the Thohoyandou area, terms used to allude to witchcraft include vhuloi (witchcraft), muloi (witch, pl. vhaloi), muya mmbi (a bad spirit), as well as the English “demon” and “Satan.” Witches are broadly understood to have a special competency in the deployment of malevolence, sometimes described as hereditary, sometimes as learned, sometimes as accidental. Witchcraft involves the use of muti (a diverse class of material substances with occult efficacy) or unseen forces to bring about ill effects, but what constitutes malevolence is a matter of perspective. Satan and the demonic bring about harmful effects through material and immaterial forms of power.
The typology I have sketched above obscures uncertainty about the nature of occult violence, an uncertainty vital to underscore. For my interlocutors, these categories are heuristic and do not exhaust the unpredictable and unknowable potentials of occult violence. The figure of the inyanga (variously defined as an herbalist, diviner, or traditional healer) exemplifies the ambivalence surrounding occult power (Ashforth Reference Ashforth2005). On the one hand, the inyanga is consulted for life-saving medicine, divinations to locate the origins of one's misfortune, protection of one's personal property, and defense against occult violence. As part of this work, an inyanga often divines the identity of a witch and takes action to defeat them, deploying magical substances or ancestral powers to redirect the witch's spells back against them with deadly force. This is all to the benefit of the inyanga's client. But the inyanga's unique expertise is mysterious and suspect. The advantage gained from the inyanga's skills can sometimes come at the expense of others. Imagine an inyanga who provides a young man with muti to secure the favors of a young woman who had earlier spurned him. If this intervention leads to the couple's happiness, is it sinister? Perhaps. There is the issue of what might be described as her “authentic” desire. What is the legal status of sex brought about, compelled even, through acts of love magic? If the woman was already married or if her family had higher aspirations for her partnership, these others might recognize her reversal as the result of witchcraft. Men and women both fear having their desires hijacked in this manner.
The distinction between demonic evil, as it is sometimes discussed in Pentecostal or Zionist churches, and witchcraft, as described by so-called “traditionalists,” is not always well marked (Jeannerat Reference Jeannerat2009; Kriel and Kirkaldy Reference Kriel and Kirkaldy2009: 325; Mavhungu Reference Mavhungu2012: 30). While Thabelo and Fhumulani spoke of Mudau as the victim of spirits or bewitchment, other characterizations of his violence carried distinctly Pentecostal undertones. Before Mudau had been apprehended, I was warned by two neighbors to avoid the neighborhood where the murders had taken place because “the Luminati” were afoot. When I asked what was meant by Luminati, one replied “They are Satanists.” Both forms of evil are externalized, often working through material media. While some Christians argue that to worry over witchcraft is to “fail to see the saving power of God” (Baloyi Reference Baloyi2014: 4), I found these terms to be mutually intelligible and worried over by practicing Christians and traditionalists alike. Like inyangas, pastors assist their congregations in grappling with externalized forms of evil. Likewise, pastors are sometimes suspected of malevolently wielding their power. Among Pentecostal Christians, there might be a preference for talking about demonic forces rather than witchcraft, but this is hardly a rule. For my part, I follow others (Ashforth Reference Ashforth2005; Niehaus, Reference Niehaus2013) in using “occult violence” to refer broadly to this universe of mysterious forces.
Because of the uncertainty surrounding occult violence, modes of spirit possession are innumerable. In Tshivenda, u loya or u panzhilela are general terms for bewitchment. Maṱukwane are zombies, dead bodies that labor on behalf of a witch. Bewitchment might take the form of visitations from occult creatures such as tshivhimbili, a (usually) male witch whose nighttime sexual assaults on female victims ruin their waking lives. Bewitchment can be achieved by picking up hair, fingernails, or bodily secretions for use in targeted muti. Though varied, each of these occult techniques troubles the boundedness and impermeability assumed by the concept of mens rea.
Historically, witchcraft was often dealt with by headmen and chiefs who recruited and supervised inyangas (e.g., Stayt Reference Stayt1931: 282–83). Under settler colonialism and then apartheid, the legal authority of these “traditional leaders” was “customary” and circumscribed by Roman-Dutch law.Footnote 9 Colonial authorities deemed fears of witchcraft an example of “repugnant” culture and criminalized accusations of and defense against witchcraft under the Witchcraft Suppression Act of 1957. Modeled on a 1736 English law and passed while South Africa was part of the British Commonwealth, this Act remains in effect today. In practice, however, witchcraft suppression is rarely enforced. In the Khuḓani Regional Court where I observed trials, it was common for a dozen or more suspects to be crowded into the accused dock to stand trial for burning down the home of an accused witch, but these defendants were never charged with the offence of witchcraft accusation. Instead, such groups faced a variety of different charges, which might include damage to property, public violence, intent to commit grievous bodily harm, or attempted murder.
For criminal matters, regional courts like Khuḓani are the workhorses of South Africa's criminal justice system. If these courts tend to ignore the role of witchcraft in disputes, high courts and appellate courts more explicitly reject the occult as “erroneous belief” (Ludsin Reference Ludsin2003: 91), subordinating the occult to a form of cultural difference that tests the limits of legal liberalism (Comaroff and Comaroff Reference Comaroff and Comaroff2004). Precedent from such rulings on witch-killings establishes that genuinely held fear of the occult should be treated as mitigating during sentencing (Geschiere Reference Geschiere, Comaroff and Comaroff2006; Ludsin Reference Ludsin2003: 91–96).Footnote 10
While many chief's courts quietly continue to adjudicate witch trials today, the Witchcraft Suppression Act has driven much of the policing of witchcraft underground. Those accused of witchcraft are subject to all manner of private violence. In July 2017, for example, a Thohoyandou area man barely escaped being burned alive when he was found naked and inebriated by patrons of a local tavern. The tavern-goers had concluded from his unusual state of undress and drunken behavior that he was a witch. They beat him with a sjambok (a whip) and doused him in petrol before police intervened. The man reported to the local newspaper that he had no memory of how he found himself in that state of disarray, but that he was sure he himself had been the victim of witchcraft.Footnote 11 As we will see, this claim is a common one: witchcraft blurs the line between victim and perpetrator.
Post-apartheid, the question of what to do about witches and how to deal with the violence they commit has been a live one. Among many, the judiciary's approach to witchcraft is widely seen as unsatisfactory (Geschiere Reference Geschiere, Comaroff and Comaroff2006; Hund Reference Hund2000; Mavhungu Reference Mavhungu2012; Ashforth Reference Ashforth2018; Reference Ashforth2015). In the last twenty years, a number of provincial and national government commissions have been established to consider the decriminalization of witchcraft accusations and defensive magic and the criminalization of harmful witchcraft practices.Footnote 12 Advocates of criminalizing witches (as opposed to criminalizing violence against accused witches), fear that if the state fails to meaningfully intervene, witchcraft will continue to be policed through private means, with bewitched communities identifying, punishing, and even executing witches on their own terms.
CRIMINAL LIABILITY AND THE EMBODIED LIMITS OF FAULT
During the final week of my fieldwork in South Africa, Magistrate Sinthumule asked me what I had learned from my research in the Khuḓani Regional Court. Overwhelmed by my material and at a loss of how to answer, I sputtered that I had submitted an abstract to present an early version of this paper, a paper about Mudau and spirit possession in the criminal justice system. She was a bit taken aback and perhaps also disappointed. In my observations of her court, she herself had never mentioned witchcraft. Magistrate Sinthumule was a tough but exemplary presiding officer who took great pride in her practical and ideological custodianship of South Africa's liberal constitution. Indeed, not long after my departure, she was promoted to judge in a Pretoria high court. In my fumbling response, she might have heard an accusation about the limits of modern liberalism in Africa. She responded, “It is true that some people talk about witchcraft to explain things that are difficult to explain, but that cannot be the basis of intention. Not for the courts. Witchcraft belief is not an excuse. If you start there, there will be no end to it.”
Magistrate Sinthumule's theory of culpability did not admit the possibility of spirit possession. She instead relied on a framework of liability shot through with a liberal conceptualization of volition, one deeply invested in autonomy, empiricism, and an ethics that localizes morality in the internal life of reasoning individuals. This framework is often reduced to the centuries-old maxim that “actus non fit reus nisi mens sit rea” or “the deed does not make a man guilty unless his mind is guilty.” To be found guilty of most serious crimes,Footnote 13 it is necessary, though not sufficient, for the state to prove not just that criminal conduct had been committed (actus reus) but that it had been committed with unlawful intention (mens rea). Criminal conduct must be a material manifestation of an individual's free and singular will.
Unlawful conduct or actus reus concerns a physical act that occurs in the world.Footnote 14 In piecing together criminal liability, prosecutors situate the accused's conduct within a linear series of events, one prompting the next, in order to argue that harm was predicated on the accused's behavior. In the Khuḓani Regional Court, evidence was produced through choreographed dialogue between witness, lawyer, and presiding officer. Magistrate Sinthumule and the lawyers in her court posed questions that slowed the pace of witness testimony, soliciting details about which agents were present, how they moved from one place to the next, what exactly was said, what exactly was accomplished, and at what time. There is a positivist theory of causality at work in this jurisprudence. Cause and effect are contiguous in time and space in ways that are identifiable, measurable, and subject to eyewitness verification. This contiguity stretches only so far and so long as the links are material and connected mechanistically. Witnesses who did not assemble events in this way were viewed as unreliable or duplicitous.
An interrogation of mens rea follows an inquiry into actus reus. Mens rea and actus reus must be linked through the “principle of contemporaneity.” As such, mens rea narrows the temporality of criminality to the decision to undertake the deed. How mens rea is evinced varies doctrinally and practically from one charge to the next, but generally, fault includes both intent to accomplish a wrongful end and knowledge that one's conduct is wrongful.Footnote 15 The notion of mens rea partakes of a liberal theory of the person as singular, bounded and self-determining. In his 1938 lecture “Category of the Human Mind,” Marcel Mauss pointed out that this notion of person is a “moral fact,” an important legal fiction for attributing blame to a terminal source (Reference Mauss, Carrithers, Collins and Lukes1985: 83–84).Footnote 16 Legal persons are morally constituted by a (typically) stable, authentic, and unique interiority.
Once it has been established that the defendant committed the conduct, there are several legal approaches to vitiating mens rea. One strategy is to introduce doubts about whether the conduct was deliberately wrongful. For example, in the following case, the accused testified he did not intend to commit grievous bodily harm, as was charged, but was instead engaged in an act of self-defense:
Defense: Brenda even informed the court that you intentionally chopped her sister on the arm?
Accused: I didn't. She was hitting me with an iron rod.
Defense: Her sister denied that she attacked you with an iron rod.
Accused: She did [attack me]. My intention was to block the rod with my machete. I didn't even see that I had chopped her. I was blocking her attack and I just heard her say, “I'm injured.”
Confronted with undeniable physical evidence of actus reus, the accused in this case justified a series of machete blows as a way of staving off an attack by the complainant. He did not harbor criminal intent, he claimed, because his purpose was not to cause injury. This defense failed to persuade Magistrate Sinthumule, who weighed the credibility of the mens rea argument against the defendant's documented history of violence against the two complainants.
The notion of voluntariness that comes to bear on criminal conduct concerns the mechanism by which a mental choice compels physical conduct. In a legal framework of liability, voluntariness is grounded in the premise that healthy individuals are self-governing. In South African courts, the legal argument of “automatism” evinces non-voluntariness in conduct by claiming that the body was vacated of free will and instead behaved like an automaton. Automatisms are most often medical conditions taken to sever expected connections between body and mind, thereby leading to inauthentic expressions of self.Footnote 17 The colloquially described “insanity defense” is one type of automatism.
While Mudau's claim of demonic possession was not sensible within a legal framework of criminal liability, his lawyer pointed to sleepwalking in an attempt to make an automatism defense. Sleepwalking disorders have been recognized as automatisms in South African courts,Footnote 18 but Mudau's legal representative advanced neither expert testimony nor relevant legal precedent to make such a case. Mudau had taken trophies from his victims. To the acting judge in the case, these objects indexed premeditation, an enduring exercise of free will rather than a nighttime break in self-control. The judge concluded that Mudau had criminal intent and convicted him. Had Mudau's sleepwalking defense been accepted, it would have demonstrated that Mudau was without the requisite mens rea and would have led to acquittal.
Magistrate Sinthumule expressed impatience with a defense she worried might absolve too many defendants of punishment. She was neither familiar with precedent that cautioned leniency toward those who fear witches nor was she interested in citing it. Magistrate Sinthumule rarely found cause to deviate from statutorily prescribed minimum sentences. She was a strong supporter of the Criminal Law Amendment Act of 1997, a law that established lengthy minimum sentences for violent crimes. In response to popular fears of a post-apartheid “crime wave,” the law was passed as a temporary measure to address exigent demands for tough-on-crime policies but has since been renewed with judicial support. In Magistrate Sinthumule's view, there is still an intolerable level of violent crime and so the sentencing regime continues to be justified as necessary to deter and punish those with criminal inclinations. For their parts, prosecutors demanded prison terms longer than the prescribed minimum and extoled the benefits of prison programming meant to change the way convicted people make decisions. For prosecutors and presiding officers, retributive justice did not preclude rehabilitation. Rather, because rehabilitation was staged inside prison walls, rehabilitative justice justified long-term incarceration.
Criminal liability in South Africa is limited to individual human agents.Footnote 19 For legal practitioners, especially as they produce evidence for the court that is audio-recorded for posterity, it is humans who fill the world with mostly intentional conduct:
Magistrate Makhesha: I know you are not expected to explain why she would lay a charge, but what went wrong if you both left each other in a happy mood?
Accused: Maybe it was the bad spirit (muya mmbi) going around the country.
Magistrate Makhesha: In other words, it is difficult to say why.
Here, Magistrate Makhesha was careful to clarify for the record that a response suggestive of non-human volition was meant to be strictly figurative.
Even as the doctrine of mens rea finds its most extensive articulation in the space of the courts, this does not mean it never goes uncontested in this space, nor for that matter elsewhere in the criminal justice system. Off-record, jurists and litigants engaged in practices and discourses that gestured to alternative theories of causality, intentionality, and personhood. Defendants commonly procured assistance from occult practitioners, bringing to court lip balm containers of potent muti meant to secure acquittal should their legal representatives falter. A public defense lawyer based at the Khuḓani Regional Court moonlighted as an inyanga, advertising his services for an “offensive charm for court matters” on his Facebook page and directly to his court-appointed clients. Interpreters, clerks, and lawyers speculated about litigants and witnesses who were struck by reoccurring ailments that prevented them from testifying. In these ways, disembodied forms of intentionality impinged on the workings of the court, if not also on the persons within it.
MENS DAEMONICA AND ITINERANT GUILT
As Mudau's defense reveals, automatism is one way that legal practitioners might attempt to reconcile doctrines of criminal liability with spirit possession in the courtroom. But bewitchment as bewitchment—as opposed to bewitchment as sleepwalking or insanity—is not so easily reconciled with legal notions of culpability. In the town of Thohoyandou, where people live under the threat of witchcraft, assigning blame is complicated by the fact that transgressions can have a complex etiology impossible to circumscribe in the intentions of one individual. The possibility of spirit possession arises from a different configuration of persons, intentional action, and relations than that presupposed by mens rea (see also Englund Reference Englund1996; Mills Reference Mills2013).
Anthropologists have long troubled the universality of the legal notion of the person with alternative personhoods as distributed, alienable, and plural (e.g., Fortes Reference Fortes and Dieterlen2000; Marriott Reference Marriott and Kapferer1979; Strathern Reference Strathern1988), ideas well explored in the Southern African context where personhood is achieved and undermined through social relations with humans and non-humans alike (Feeley-Harnik Reference Feeley-Harnik1982; Ferguson Reference Ferguson2013). To be a person is to be entangled in networks of reciprocity and obligation, the beneficiary of currents of good will that manifest in the form of material goods (Swidler and Watkins Reference Swidler and Watkins2007), labor (Miers and Kopytoff Reference Miers and Kopytoff1977), and knowledge (Guyer and Belinga Reference Guyer and Eno Belinga1995).
At stake in projects of “relational personhood” is the completion of ordinary actions. Such actions might include crafting a flawless pot (Evans-Pritchard Reference Evans-Pritchard1937), passing a driver's test, or indeed, accepting a banknote. Mundane activities of this sort are central to maintaining everyday relationships with family, friends, patrons, and clients. In his exegesis of the 1937 edition of Evans-Pritchard's Witchcraft, Oracles and Magic, Martin Mills (Reference Mills2013) argues that the Azande harbored an expectation that such actions would be completed successfully given basic competency and proper ritual observations. Mills concludes from this observation that “the autonomy of persons is constrained not by the borders of their biological frame, but by their intentional actions,” actions that are always vulnerable to the conscious and unconscious incursions of others (ibid.: 24). This vulnerability is a necessary corollary of the relational composition of personhood (Ashforth Reference Ashforth2005: 86; Englund Reference Englund1996). Witchcraft and demonic possession account for a common, even everyday propensity for a certain type of action among persons. Occult violence undermines normative projects of personhood in ways that qualitatively reconfigure selves.
The possibility of bewitchment points to a self that is not necessarily sovereign over its body or the actions it takes. Political theorist Adam Ashforth (Reference Ashforth2005: 227) refers to this as “hijacking,” a metaphor that helpfully evokes the relevant spatial and temporal limitations of such captivity. Such lapses of volition are not attributed to defects in the internal matter of the body, but to intrusions from without. In stories told about witches and demons, it is apparent that fault can be disembodied, resting neither in the physical human frame nor the bounded mind, but ranging as a sort of traveling relation.
Drawing from such stories, I propose mens daemonica as a concept for theorizing culpability. Like mens rea, mens daemonica answers the why question (Mills Reference Mills2013: 26–30; Evans-Pritchard Reference Evans-Pritchard1937), but with a different orientation toward intentionality. To be clear, mens daemonica is my own analytic shorthand for a way of reckoning blame in Thohoyandou. Many South Africans worry over occult violence and possession. This does not mean, however, that they subscribe to an ideology as coherent as the one I have laid out here.Footnote 20 There is a great deal of uncertainty about the occult. In one moment, lawyers and clerks remarked on the role of witchcraft in manipulating behavior, what I am calling a mens daemonica view of culpability. In another, the same legal practitioners attributed criminal conduct to the malicious intent of an individual, a perspective more in keeping with mens rea. This is not a contradiction. As others have remarked (Needham Reference Needham1972; Graeber Reference Graeber2015), that which people say and do cannot be interpreted as an endorsement of some singular underlying ontology. I deploy mens daemonica not to suggest the existence of such a totalizing ontology, but rather to explore alternatives to carceral logics of justice, a point to which I return at the conclusion of this article.
Not long after Mudau was arrested, I was seated in court with a number of lawyers and clerks one morning between hearings. One of the defense advocates began relating how the ambitions of a talented cousin had been thwarted shortly after he was bewitched. The story provoked a lengthy exchange between myself and Tshepo, a Court Preparation Officer. With Mudau in mind, I asked Tshepo about the role of witchcraft in criminal activity. He agreed that it was a big problem. He offered the following hypothetical, troubling for the casualness with which it describes sexual violence: “A man rapes my daughter. I take him to court, but he is acquitted and then set free. Then I,” he makes an explanatory hand motion, as though he is feeling the contours of a ball, a pantomime of muti preparation, “and then he rapes many girls. Then they come and kill him.”
I asked for clarification, “You perform witchcraft to make him rape more?”
“Yes! That way he will get caught, and they will kill him.”
“What? With vimba?”
“Yes! Vimba! The man will be,” he whistled and ran a finger across his neck.
Earlier, Tshepo and I had a lengthy discussion of the merits of vimba. Vimba, literally translated as “help me” or “get him,” was a synecdoche for “mob justice.” That June and July, vimba received a great deal of coverage in the local newspapers in the wake of a spat of vigilante killings. Tshepo, like many others, was of the opinion that “vimba really works.”
I then asked about Mudau. “Do you remember the Univen rapist and murderer? The one who killed those five women last winter? What you're saying reminds me of what he was saying.” Tshepo replied, “Yes, that's right! The way he committed those crimes. It has got to be something else.” This would not be the last time I heard a story about a rape victim's loved ones cursing the man who raped her in this manner. Rumors of a raping curse, sent by the first victim's family, often emerged to explain multiple rape cases reported in a short period of time.
In her work on traditional courts in rural KwaZulu-Natal, Sindiso Mnisi Weeks (Reference Mnisi Weeks2017) contends that behind any one grievance there is another, or perhaps many others, that will emerge during the dispute resolution process. Tshepo's hypothetical points to a slightly different interpretation. His is an argument about the diffuse quality of culpability. The use of muti in his example served as a mode of redress, and indeed it was common for healers to be consulted to this end. Tshepo framed the father's approach to redress as a response to the failure of the courts to provide justice, a critique that was shared more broadly by the South African public (Buur and Jensen Reference Buur and Jensen2004; Oomen Reference Oomen2004; Steinberg Reference Steinberg2000) but was all the more striking for coming from a public official. Spirit possession was a means to secure the ultimate retribution, in this example, the death of the culprit identified by the father. In Tshepo's hypothetical, the status of the violence committed under the thrall of witchcraft was ambivalent: at once criminal, but also retributive, a form of punishment sought by the aggrieved father on behalf of his daughter and enacted through the bodies of other girls. And what if the families of the new victims consult their own inyanga and deploy their own forms of retribution? Recall Magistrate Sinthumule's qualms with admitting the occult into legal reasoning: “If you start there, there will be no end to it.”
That projects of relational personhood depend on relations with others exposes those projects to frustration and even calamity. Occult interference is spoiling but not necessarily intentionally so. One does not always know that they are a witch. Witchcraft is not always the result of conscious practice. Mens daemonica brings into the same frame the unpredictability of occult violence and the essential vulnerability of the person, and in so doing, reveals that witchcraft is not merely a “simplistic” story told to impute responsibility (cf., Tilly Reference Tilly2008: 23–24). Nor is it an arboreal chain of ever more distal, mechanistically linked causes of harm (cf., Evans-Pritchard Reference Evans-Pritchard1937). Rather, the culpability implied by mens daemonica is rhizomatic, a messy multiplicity of open and dynamic connections.
Witchcraft confounds legal categories. Was Mudau a victim, a perpetrator, or both? Mens daemonica implies a dark intimacy with the occult that does not necessarily absolve the afflicted of blame, a point made clear by Mulalo's hypothetical. Even as many understood Mudau to be the victim of an occult assault, huge crowds turned out to demand that bail be denied. His sentencing to the maximum penalty under South African law, life imprisonment, was widely celebrated. While many agreed that Mudau was under the sway of sinister forces, he was seen to be at fault for entertaining such forces. This he may have done consciously or unconsciously. Some argued that the murders might be a form of punishment against Mudau, a curse laid on him for harms he had committed against another woman, with the intended result of the curse being Mudau's imprisonment or death by mob attack. It was irrelevant whether he had been personally responsible for the decision to collect living flesh for muti or carry out blood sacrifices to Satan—both stories that circulated about the purpose of his crimes. The authenticity of his will while committing these actions was irrelevant.
In this way, mens daemonica is distinguished from what might be described as a “supernatural automatism,” the notion of which is still invested in the distinction between mind and body. Automatism as legal defense implies that the defendant has suffered a temporary break from what is an authentic and singular will, a will contained by the body. If the boundaries of intentional action lie beyond the corporeal edges of the human form, mens daemonica is always a latent potentiality. The point is not that humans are always interfering with humans through the indeterminate medium of witchcraft; the point is that human intentionality is not always and possibly never strictly human.
In a world of occult violence, the lines between victim and perpetrator, between being bewitched and being a witch are always indistinct (see also Ashforth Reference Ashforth2000). Even as occult violence accrues through the conscious and unconscious contributions of subjects, culpability does not reside with single individuals in any straightforward way. Rather, it is distributed, extending through humans, objects, and unseen forces, changing as it moves, in ways that are impossible to map. Those who commit harm are embedded in thickets of sociality within larger moral economies, connected to and alienated from others in ways that also make them victims.
PUNISHING CRIMINALS IN THE NEW SOUTH AFRICA
Mens daemonica cautions against treating those who commit violence as strictly malicious wrongdoers. And yet, justice in Thohoyandou as elsewhere in South Africa is governed by “punitive logics” (Clarke Reference Clarke2020). The country's history of colonialism is braided with its history of mass incarceration. Under apartheid, political activists who protested racial oppression were arrested, tortured, and indefinitely imprisoned. Post-apartheid, many of these activists have come to occupy positions of authority in the government, including the judiciary. Democratization marked a potential crossroads, when those who had protested in support of the cause of liberation and restorative justice might have steered the country toward a different vision of justice.
But in the years since the democratic transition, reports of a “crime wave” of epic proportions stoked fears of criminal violence. Deborah Posel (Reference Posel2005) has described this as a “moral panic” that galvanized white anxieties about the enfranchisement of non-white South Africans. In spite of early debates about how to advance humane forms of redress (Super Reference Super2011), new administrations reinvested in carceral punishment. Police violence and mass incarceration continue to characterize the state's approach to crime (Lamb Reference Lamb2018; Hornberger Reference Hornberger2011; Gillespie Reference Gillespie2008; Alexander Reference Alexander2016). In the 2018–19 fiscal year, there were 270 accusations of torture and another 3,835 accusations of assault implicating South African police officers, according to a government report (IPID 2020, 38). The same report found that 214 people died in police custody (ibid., 38).
Superlative by international comparison,Footnote 21 this extra-legal state violence at once enables and obscures everyday judicial violence like restricted access to bail, limited parole, mandated minimum sentencing, and the post-apartheid creation of new closed maximum security prisons. The result is that the post-apartheid period has seen a total incarcerated population that rivals that of the worst years of white minority rule (Gillespie Reference Gillespie2008). Between 1995 and 2014, the number of people sentenced to life imprisonment increased by 3,000 percent (Jacobson, Heard, and Fair Reference Jacobson, Heard and Fair2017: 7). In 2018, the Department of Correctional Services reported that the nation's prisons were at 135 percent capacity (DCS 2018). Sentenced or awaiting trial, those who are incarcerated are denied their freedom and suffer a host of inhumane conditions.
Let's return to Mudau, the young man who claimed he had committed rape and murder while possessed. As of this writing, Mudau is serving his prison terms in the Thohoyandou Correctional Centre, colloquially known as Matatshe Prison, ten kilometers East of Thohoyandou. In important ways, Matatshe is emblematic of South Africa's prisons. In 2017, unannounced inspections discovered it to be severely overcrowded, at 189 percent capacity (Raga Reference Raga2017; see also CAJNews Africa 2020; Khampepe Reference Khampepe2012). The same inspection found that the facility only has access to running water for two hours a day. Cells are inadequately stocked with toiletries like toilet paper and toothpaste. Overcrowded and unhygienic, Matatshe is a breeding ground for viral and bacterial infections. What is more, the prison lacks the capacity to provide healthcare for chronic or acute conditions. A doctor visits only once a month and the provision of life-extending medications, like anti-retrovirals for the treatment of HIV, is routinely delayed.
Militarized policing, lengthy sentences, and harsh prison conditions garner popular support. Officials at Matatshe Prison have attempted to alleviate the water shortage by tapping into a local reservoir, but neighboring community members, angered at the prospect of sharing with “criminals,” sabotaged the connection (Raga Reference Raga2017). A great many South Africans decry prisons today as too lenient and perhaps even inviting. One pastor, for example, attributed national crime rates to the material comfort and security offered in prison. During a discussion we had about his church's role in promoting the safety of its congregants, he remarked, “They will tell you ‘if we do this [commit a crime], the law will judge us and put us in prison and in prison we will be eating.’ Because prison nowadays, it is no longer like the normal jail. Nowadays, they can watch television, they play soccer, they eat decently, like a person who is outside.” This sentiment is a common one in South Africa. “Nowadays” evokes a nostalgia for apartheid, when the white supremacist government was more earnestly committed to punishment.
State investments in policing, prosecution, and incarceration are moralized as ways of bringing about social welfare through neoliberalism. Post-apartheid governments have used the same sorts of carceral punishment as did their white supremacist predecessors but have claimed a distinction between “humane” forms of long-term incarceration and corporal penalties that exact violence on the flesh (Super Reference Super2011). Politicians tout prisons as sites of moral rehabilitation, where criminals become hardworking citizens (Gillespie Reference Gillespie2008), while promising that the construction of private prisons will inject new life into local economies by providing communities members with jobs and business contracts (Alexander Reference Alexander2016). In spite of the developmentalist justifications for these recent penal reforms, post-apartheid governments have yet to address racialized unemployment and income inequality.
Above, I have abstracted from stories that South Africans tell about witches and demons a theory of culpability that I am calling mens daemonica. As a framework for thinking about how wrongdoing is diffusely conditioned, mens daemonica has the potential to inspire new theories of justice, theories that assume wrongdoers are also wronged. But it also has the potential to lend new potency to punitive theories of justice. Mudau's story is again illustrative. On the last day of Mudau's trial, as the acting judge read his sentence, the father of one of Mudau's victims yelled in protest. The court's warrant officers quickly ushered him out. The father had demanded that Mudau's accomplices also be tried, convicted, and imprisoned. During an interview with a local news reporter, the father claimed that Mudau was only one of many people who had participated in the killings, which he claimed were orchestrated by a powerful prophet.Footnote 22 He learned of this from someone involved who came to his home to confess. The father of this victim would not be satisfied until all who had participated in Mudau's occult cabal were also held responsible. In the years that followed the conviction, rumors circulated about the identities of the collaborators who continued to roam free. As Magistrate Sinthumule cautioned, “If you start there, there will be no end to it.” Mens daemonica, refracted through carceral logics, creates an appetite for punishment that is difficult to sate.
EXORCISING SPIRITS
In October of 2017, three NGO officials and I arrived at a church parking lot to attend a public Victim-Offender Dialog. As we exited the van, a social worker grabbed my arm and asked, “Are you afraid?” It took me a moment to recall her warnings before we got into the van. She had described Victim Offender Dialogs as precarious acts of diplomacy. “If the community is not prepared properly, they will attack all those prisoners. And the people protecting them. It is very dangerous.” This social worker was worried about vimba.
Victim-Offender Dialogs mark one possible conclusion of an incarcerated person's journey through the criminal justice system. They are state functions, funded and organized by the Department of Correctional Services in consultation with local community groups. They bring together paroled people and victims to give a public accounting of the crime followed by acts of apology and forgiveness. Victim-Offender Dialogs are the culmination of private meetings of imprisoned persons, victims, and prison social workers. These meetings are a part of the parole process, but Victim-Offender Dialogs are held publicly only when funding is available for them and with parolees and victims who have agreed to participate. The goal of such events is “to return the prisoners back to the people they have offended to live in harmony.” In the Thohoyandou area, Dialogs were routinely staged in churches.
Against my companion's fears of vimba, audience members were calmly taking their seats in the Pentecostal church that was hosting the event. On a stage decked with green and white bunting, the colors of the Department of Correctional Services, victims told harrowing stories of violence and loss while those who wronged them stood by solemnly. Some three hundred family members, neighbors, traditional leaders, government officials, journalists, and interested community members were in attendance. Flanked by a cadre of prison officers, another one hundred incarcerated people in orange jumpsuits and shackles were released to observe the day's event. The audience responded to stories of wrongdoing with gasps, and less often, laughter. Dignitaries seated in front snapped cell phone photos of victim-offender dyads, which they rapidly posted and circulated on social media or saved for official documentations of the event.
If entry into the criminal justice system was marked by concerns with mens rea, exit from it was marked by gestures toward what I am calling mens daemonica. Throughout the day, rehabilitation and absolution were spoken of in Pentecostal idioms, and criminality as the work of Satan, evil spirits, and demons. In addition to a lengthy welcome given by the bishop of the hosting church, the day was presided over by two corrections officials who also served as pastors in their personal capacities. Scripture was cited liberally throughout the event. Chapter 5 of the Book of Mark, the most detailed biblical reference to demonic possession, was read aloud. In it, Jesus comes upon a man possessed by an “unclean spirit” and banishes the spirit from him. This passage is known for the verse: “My name is Legion: for we are many.” The role of church, as it was discussed during the Dialog, was not to morally rehabilitate the immortal soul of the sinner—an idea present in mainline Protestant churches. Instead, evil was described as invasive and external, banished by way of church attendance, prayer, and God's love.
For their part, incarcerated and recently paroled people declared that their crimes had been committed while possessed by evil spirits, and that finding church had purged such spirits from them. These proclamations were curious ones to make at the end of one's time in prison. Though rarely enforced, confessing to committing occult violence or possessing occult powers could attract a criminal charge of pretending to be a witch under the Witchcraft Suppression Act. Among those who fear witches, though, a confession is a different sort of legal pronouncement, one that is paradoxically less concerned with retrospective questions of culpability than with prospective questions of security (Ashforth Reference Ashforth2005: 77–80). In churches and chief's courts, confessions of malice cleanse the confessor of evil motives and invite the vigilance of family, friends, and neighbors, and in this way, offer enabling conditions for reconciliation. Indeed, in matters of occult violence, confession is one of the only ways for a witch to demonstrably renounce witchcraft or the demonic arts (Douglas Reference Douglas1970; Geschiere Reference Geschiere1997; Reference Geschiere2013). In this way, the parolees attempted to reassure the audience that they would cause no future misfortune.
By contrast, there was little talk of the life skills workshops, psychosocial counseling or vocational training that convicts are offered in prison, programs that figure prominently in a rhetoric of rehabilitation deployed in the courtrooms that sentenced these prisoners. Such programming is meant to prepare prisoners to lead happy and productive lives outside prison by teaching them to “think differently” (e.g., Jordaan, Beukes, and Esterhuyse Reference Jordaan, Beukes and Esterhuyse2018), a practice of rehabilitation that devolves from a particular theory of the criminal person as one who harbors internal mental fault, namely mens rea. This model of rehabilitation treats offenders as moral, if errant, persons, possessing autonomous wills that are rational and therefore can learn to self-legislate.
Only two paroled men mentioned prison-based workshops and counseling. They were singled out by the Acting Commissioner of Correctional Services, who had traveled almost 1,900 kilometers from the Western Cape to attend the Dialog. At the close of the day, she reprimanded these men: “The offenders cannot come here and present trophies. Those men are telling us about the programs they have gone through, the trophies. The victims cannot hear that. I, as a victim, have to turn my scars into stars. The perpetrator is just saying ‘I love these social workers.’ We don't want to hear that ‘you have turned me into the great person I am today.’”
It is remarkable that such a prominent corrections official would chide paroled people for publicly commending the government's rehabilitative work. Her comments stood in stark contrast to official Correctional Services policy, which claims rehabilitation of prisoners as its central mission. This is in part because such programs drew resentment from the public, who felt that prison offered the undeserving an all-expenses-paid holiday, but this resentment was also fueled by a skepticism toward the idea that state social services could effect a transformation of mens rea. Exorcising an offender of demonic forces was at once more plausible and politic for corrections officials trying to pitch parolees as persons ready to return to their homes.
Reference to externalized evil involved victims in the process of reintegration in a way that mens rea could not. Inside the church, before pastors, prophets, and other faithful people, victims were explicitly asked to demonstrate grace. They were given a platform to enact righteousness and devotion as Christians. And the rewards for their forgiveness were transcendent. As one corrections official promised: “Because you have come here and forgiven, God will share with you what is on His plate.” For some victims, the intrusion of occult malevolence explained not just their damaged relationships with offenders, but a lifetime of suffering since.
One victim-offender dyad stood out. The victim was Rolivhuwa, a woman who had been raped repeatedly by her brother when she was fourteen years old, and he sixteen. He had been imprisoned for sixteen years and was now preparing for his release. When the now adult Rolivhuwa stood before the audience, she laid blame on the devil:
I cannot blame him [my brother]. But I felt the pain and that I was nothing in this life. I thank God for grace. When I say that I don't blame him, I mean things happen for a reason. The devil wanted to destroy my destiny. The two of us, we were intelligent. We knew a lot at school. The devil destroyed our destiny so we can't blame my brother. It was not the only wrong in my life. It was very miserable. I am a mother of three and I have lived through a lot and if I started explaining it, it would take all day. It was the devil…. The devil was preventing me from being what I was supposed to be, but now I am an evangelist. [To my brother:] When you get out of prison, we are going far…. When you blame the sinner, the devil is behind that person. To my mother, whatever is within your heart which is not good, in the name of Jesus, you are the first who must show unity. When he comes out, don't be biased. We will forgive him…. We will work as evangelists together.
For Rolivhuwa and her brother, evoking demons laid the foundation for repairing their relationship and their family (see also Tilly Reference Tilly2008: 12–13). She hoped that through church work they could together confront the devil, who was ultimately responsible for ruining both their lives.
Perhaps more importantly, though, blaming the devil conferred transcendental meaning to Rolivhuwa's experience of rape. When she said, “things happen for a reason,” she was not deploying that idiomatic expression that suggests one calamity sets off a chain of events with indiscernible but fortuitous results. Rather, she was ascribing demonic intentionality to a life of misfortune and thwarted promise. Rolivhuwa located her childhood experience of rape at the hands of her brother as an important milestone in that sequence of events. What followed was violence, misery, abandonment. In her speech, she claimed her brother's parole and her own act of forgiveness as a radical shift in the course of what was a bleak and unhappy existence. Demonic violence was a central “plot device” for organizing the story of her life (Mattingly Reference Mattingly1994). For being limited to a moment of decision-making, mens rea would have done nothing to support the structure of her diachronic narrative.
CONCLUSION
Taking as a point of departure the story of Mudau, a man who claimed he was possessed when he committed heinous crimes, I have proposed mens daemonica as a theory of culpability that neither denies violence nor demands its accounting in individual bodies. The possibility of spirit possession loosens an act of wrongdoing from the wrongdoer, implicating powers beyond the space-time of the moment of transgression. The fault of mens daemonica is distributed but also intentional. Using this concept, I have described how legal and occult regimes of culpability jostle against one another in the criminal justice system. While legal practitioners attend to mens rea in the official discourse of the courtroom, the end of paroled people's time in prison is punctuated with a celebration of the withdrawal of what I have been calling mens daemonica. In the space of the Victim-Offender Dialog, mens daemonica supported goals of community reintegration, while providing some victims with a way of making sense of how they had been wronged.
Popular demands to exact revenge on Mudau's collaborators implicated these extended networks of responsibility in distributing punishment more widely. Bolstered by demands such as these, the criminal justice system in South Africa has expanded at the expense of the sorts of entitlements—housing security, water and electricity, education, childcare, counseling—desired by those who experience harm (Alexander Reference Alexander2016; Super Reference Super2013). What difference might such investments have meant to Rolivhuwa? This question is an important one, because by her own account, the incarceration of her brother did little to improve her life.
I have argued that the prevalence of witchcraft in Thohoyandou makes it a place where wrongdoing has a complex etiology that confounds the task of tracking ill will to a single terminus. But this is not a story of South African exceptionalism. Rather, transgression is always, everywhere overdetermined by factors economic, political, and social, by forces seen and unseen, by willful and willed subjects, by histories of colonialism and “economies of abandonment” (Povinelli Reference Povinelli2011). For highlighting how wrongdoers are also victims, mens daemonica has the potential to inspire a more equitable, compassionate, and redemptive regime for redressing wrongdoing. Magistrate Sinthumule admonished jurists who recognize witchcraft belief as mitigating criminal liability. Such recognition, she warned, struck at the very tenability of the criminal justice system. What if, rather than heeding this warning, we instead took her words as a provocation?
