By Professor Rassie Malherbe

The case against legalising prostitution is a simple constitutional one. Human dignity protects the intrinsic human worth of all people. People have human dignity simply because they are human. It has even been stated that one’s intrinsic value as a human being exists regardless of what one may think of one’s own worth (Rautenbach-Malherbe Constitutional Law 337). In other words, human dignity is inherent to being human and does not depend on what one thinks of oneself, what others think, or even what the authorities think. The Constitutional Court accordingly held that the importance of human dignity as a foundational value of the Constitution cannot be overemphasised (S v Makwanyane par 328). Recognising the right to dignity acknowledges the intrinsic worth of human beings who are entitled to be treated as worthy of respect and concern. This right is therefore the foundation of many of, if not all, the other rights in the Constitution.

Respect for the dignity of all human beings is particularly important in South Africa because people were refused respect and dignity in the past. The Court concludes: “Thus recognition and protection of human dignity is the touchstone of the new political order and is fundamental to the new Constitution” (par 329). The Constitutional Court in several cases has confirmed the pivotal role of human dignity in the protection of all human rights since S v Makwanyane, and it remains the responsibility of the government and every citizen to uphold faithfully and diligently the human dignity of every person in South Africa.

This approach of the Court also dispels the myth that seems to be developing that the right to equality always trumps any other right, and that as long as one can motivate a particular act or conduct on the basis of the right to equality, the act or conduct enjoys constitutional protection and will prevail over other rights. Clearly, when a particular act or conduct violates the right to human dignity, it will not prevail. As a matter of fact, one of the corollaries of the right to equality, namely not to be unfairly discriminated against, has been defined by the Constitutional Court as differentiation that impairs human dignity (Prinsloo v Van der Linde). When a particular arrangement protects human dignity, like the prohibition on prostitution, the opposite can never be argued, namely that it impairs human dignity and therefore amounts to unfair discrimination. Inherently and by definition, the practice of prostitution demeans those who are involved and constitutes the most direct and blatant denial of human dignity. In Jordan v S the Constitutional Court explained that by its very nature prostitution diminishes and devalues the dignity of human beings:

“Our Constitution values human dignity which inheres in various aspects of what it means to be a human being. One of these aspects is the fundamental dignity of the human body,which is not simply organic. Neither is it something to be commodified. Our Constitution requires that it be respected … to the extent that the dignity of prostitutes is diminished; the diminution arises from the character of prostitution itself. The very nature of prostitution is the commodification of one’s body … the dignity of prostitutes is diminished … by their engaging in commercial sex work. The very character of the work they undertake devalues the respect that the Constitution regards as inherent in the human body” (par 74).

In these few short sentences the Court identifies the real issue: Prostitution violates human dignity in a way that cannot be hidden or justified. In a self-respecting constitutional state in which human dignity is held in the highest esteem and, moreover, is purposefully nurtured and protected as a constitutional right, there is an irreconcilable inconsistency between human dignity and prostitution. To the extent that prostitution violates, diminishes and devalues human dignity, the right to human dignity thus creates an insurmountable obstacle to the legalisation or decriminalisation of prostitution. It is difficult to imagine a purpose for the legalisation or decriminalization of prostitution that could justify the violation of human dignity that prostitution causes. The Constitution clearly demands that legalising or decriminalising prostitution has to bow before human dignity. In short, no form of legalisation or decriminalisation for whatever pragmatic or utilitarian purpose can sugarcoat the violation of human dignity that is caused by prostitution. No legislation to that effect can override or circumvent the obvious superior status of human dignity in our constitutional system, or the high esteem, which the Constitutional Court has afforded human dignity consistently over a period of more than 20 years. The conclusion is that any such legislation would be inconsistent with the Bill of Rights and therefore unconstitutional and invalid.

The post Prostitution Violates Human Dignity appeared first on Pinion Project.

In the momentum of #MeToo and the End Sexual Exploitation lobby more generally, some beer brands “apologised” for objectifying women in ads in SA. Yet Edgars made it clear in the midst of world cup soccer fever that they just don’t give a rip about women!

As many of us followed the world cup soccer and other sport on YouTube this last week, reports started coming in from all over regarding an Edgars underwear ad. The ad featuring a very thin Nordic looking woman writhing around on a bed in underwear (targeted at men) had many people very angry. The ad call to action so to speak was, ‘get something for her that’s really for you.’

Ever increasingly, the sexual objectification of women and girls is being seen to be undermining the rights, sexual autonomy, physical safety and economic and social equality of women. The harm done to women is not merely moral as some suggest, it is political, because the corporate control of our visual landscape cannot be disconnected from public health interests. The growing evidence, which supports the connection between sexual objectification of women and girls with aggression towards them, cannot be ignored. Likewise, research has linked self-objectification in women to mental health outcomes including depression, disordered eating, and reduced productivity.

In South Africa it is not at all controversial to point out that gender based violence is a huge problem. Nor would it be outrageous to observe the alarming trends in young girls suffering from negative body image and premature sexualisation. Responding to the social and structural drivers of this vulnerability is a significant public concern. Furthermore, in the South African Constitution, Chapter 2 in the bill of rights, we see the recognition of everybody’s dignity (everyone’s intrinsic worth). No human being, it follows, may be treated as something less than human and as a mere object. We suggest that woman being viewed primarily as an object of male sexual desire, rather than as a whole person, is a social driver that contributes to the diminution of women’s constitutionally protected dignity.

So the Edgars advertisement is a clear example of such an indignity toward women. Even after the Pinion Project and many others appealed to Edgars to remove the ad, nothing happened and the ad continues. The potential brand damage should be sufficient to wake up the help desk at Edgars, but as I have said, not one word from them.

Understanding women’s lived experiences and mental health risks associated with the corporate control of our visual landscape, is full of difficulties when it comes to regulation to be sure. We should all encourage self regulation and being responsible in the public space. Still, overt disregard like this from Edgars should motivate women and men, not only to stay away from Edgars, but to share this post.

• We call on Edgars to embrace social responsibility and remove their underwear ad campaign, with an apology
• We call on the public to boycott Edgars until such a removal and apology.
  

The post Open Letter To Edgars appeared first on Pinion Project.