By Dieter Lubbe

Morality, Human Dignity and Freedom

The focal point of this article, in the context of the Media Campaign Against Human Trafficking (MeCAHT) conference 2018, is to reflect on questions asked of the abolitionist movement in South Africa with particular attention to morality, human dignity and human freedom. This with direct reference to the ongoing debate regarding the decriminalisation of prostituted people in South Africa.

As an abolitionist movement we have grappled with the framing of our claims in the public domain. Indeed, the challenge to stay true to the facts of the matter, paired with the commitment to be as inclusive as possible is not without challenges. Ideals, even those described as secular and evidence based are not without worldview challenges.

Ultimately, the truth by definition is exclusive and to this end we must commit ourselves lest we become incoherent noise, irrelevant to the struggles of the oppressed both in actions or worse, by the sacrifice of truth in the name of mere pragmatism. As Chief Justice Sandile Ngcobo put it in the constitutional court judgment in State v Jordan, ‘Indeed we are not entitled to set aside legislation simply because we may consider it to be ineffective or because there may be other and better ways of dealing with the problem.’ Pragmatism is an insufficient test for justice and likewise the will of the people does not guarantee that human dignity will be championed.

Abolitionist Movement

The central claims of the abolitionist movement in my view are;

1. Persons should not be prostituted
2. The majority of persons being prostituted are de facto being abused/harmed irrespective of legal regime

If we are correct about prostitution, in that is a diminution of human dignity akin to slavery then our efforts to remedy such an evil in law is warranted. In the State v Jordan, minority judgement, O’regan J and Sachs J observed,

‘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… the diminution arises from the character of prostitution itself. The very nature of prostitution is the commodification of one’s body. The very character of the work they undertake devalues the respect that the Constitution regards as inherent in the human body.’

From this perspective people are viewed as categorically different from all other animals and objects. This tradition in accordance with the overlapping consensus reached in the Universal Declaration of Human rights. Hence, by definition (as we read in the Cause for Justice Submission to the Multi Party Women’s caucus) ‘the commodification of human sexuality for purposes of the commercial exploitation…’ is disconnected from human dignity. The slavery comparison does seem to fit on grounds that in both cases people are viewed as mere objects to be exploited. This disconnect is a very serious infringement of the right of all human beings and should not be trivialised. In S v Makwanyane and Another/O’Regan J we see dignity is the touchstone of the new political order,

‘Respect for the dignity of all human beings is particularly important in South Africa. For apartheid was a denial of a common humanity. Black people were refused respect and dignity and thereby the dignity of all South Africans was diminished. The new constitution rejects this past and affirms the equal worth of all South Africans. Thus recognition and protection of human dignity is the touchstone of the new political order and is fundamental to the new constitution’.

However, some may suggest that individuals have the right to relinquish such protection. In Constitutional Law, 6th edition, Chapter 20, by Rautenbach-Malherbe “Any ‘diminution’ of human dignity must be justified in terms of the limitation clauses, even within the context of a waiver of rights.” Hence, we now turn to understanding both the ‘diminution’ of human dignity and arguments for the limitation on any waiver of this right to dignity because it would be unreasonable and not justifiable in an open and democratic society.

A former Public Prosecutor and Senior State Advocate Robin Fudge reminds us, ‘The proposal that prostitution must be decriminalised to realise various constitutional rights is specious. The question of the constitutionality of legislative measures to control adult prostitution has already been adjudicated by the Constitutional Court in the Jordan matter, and any suggestion that the current legislation should be changed to be brought in line with the constitution is simply incorrect’.

Following this reasoning, abolitionists grapple with the overlapping socio-economic factors that concentrate crime in areas plagued by poverty, inequality and unemployment which fuel the demand and supply for both prostituted and trafficked persons. This is not to conflate the crime of human trafficking with the selling of sexual services generally. Rather, we observe that the socio-economic drivers of market demand for consenting or non consenting persons, irrespective of the context (legal regime in respect of prostitution) overlap in ways that are at best difficult to delineate or at worst are indistinguishable from each other. Simply put, the people that comprise the demand aspect of exploitation cannot be neatly cordoned off into legitimate and illegitimate spheres. To suggest that background conditions of such markets can change, especially as the norms of sexuality mutate is I believe mistaken. One need only to look at the claw back efforts in the Netherlands and other nations that have decriminalised prostitution to refute such claims. Any law that uplifts human personality is just.

‘Sexual autonomy should be valued differently from other forms, such as a person’s control over when and to whom they serve food, provide a massage or dance, offer expert advice, or talk philosophy’ [Scott Anderson].

In S v Jordan and Others, the minority judgment found that there are a range of factors relevant to distinguishing the core of privacy from its penumbra: ‘One of the considerations is the nature of the relationship concerned: an invasion of the relationship between partners, or parent and child, or other intimate, meaningful and intensely personal relationships will be a strong indication of a violation close to the core of privacy.’ With this in mind, the commercial nature of prostitution removed it from the inner sanctum of privacy. Scott Anderson writes,

‘…a person’s sexuality almost always figures prominently as an aspect of his or her self-conception, status in society, and economic and social prospects…It is because sex plays such a pivotal role in the lives of most adults…that it creates its own special…realm within which one can be more or less autonomous.’ (Scott Anderson)

We recognise the complex relationships between legal markets, organised crime and informal demand for commercial sex acts. In the case of the latter, it is a mistake to suggest that such behaviour is a private matter between consenting adults.  In S v Jordan. the minority judgment noted, ‘Commercial sex involves the most intimate of activity taking place in the most impersonal and public of realms, the marketplace; it is simultaneously all about sex and all about money.’

What is significant to note is that people like Christopher McCrudden interpret the Jordan judgment as representing something like a collectivist approach as over against the New Zealand individualistic decriminalisation judgment. Pierre de Vos on the other hand framed the Jordan judgment as the court capitulating to public opinion [on his blog Constitutionally Speaking]. I would tend to agree with Christopher McCrudden (not his choice of words) over against Pierre de Vos who in this case I believe is arguably less cogent.

Sexual Permissive Argument

If moral claims cannot be judged as either true or false, then the people claiming. ‘we cannot legislate morality because it is unjust and violates people’s rights cannot be correct. The claim that morals laws are unjust is inescapably a moral claim (Moral skepticism is in this sense, is self-defeating). The essence then of the argument rests on which moral claims are warranted with respect to consent? The harm of the consensual sex work narrative can be seen in the following summery of Angela Franks argument. She illustrates the modern sexual permissive argument as follows with respect to the #MeToo movement (my understanding of it that is).

Premise 1. If something is a basic human good, it is unreasonable to refuse it.

Premise 2. Any sex with anybody is probably a basic good.

Therefore, it is unreasonable to refuse sex with anybody (consent to it)

On this view, the expectation to choose sex with anyone is implicit, the burden of proof shifts to the women (in most cases), to defend her decision to refuse. On challenging premise two, one is inevitably confronted with what constitutes true good in relationships?

Angela Franks writes, ‘The problem is that, without a sense of a true good in relationships, we don’t know to what we should consent. We are left with an arbitrary act of the will; it is an empty form with no content. The fixation on consent obfuscates larger problems: don’t we have to start to ask what people are consenting to, for the term to have any meaning? And are there cultural conditions necessary for a woman to be able to give consent?’

The challenge before us then is what legal regime, social and cultural conditions would be necessary for a people to be able to provide legitimate consent? Clearly, any moral conversation that is entirely dependent on consent is insufficient. If a grammar of moral good and evil is allowed, then our moral actions are not grounded on mere support of the will but also buttressed by the intellect ━ what is truth about sex? This Angela Franks suggests, ‘allows for moral responsibility to be shifted from the consent of the victim to the actual choice that the perpetrator made. In this way, a richer moral vocabulary protects the vulnerable.’

The demand for the commodification of human sexuality for purposes of the commercial exploitation is significantly illustrated by C S Lewis in his book Pilgrim’s Regress. Lewis writes of a fictional jailer who tried to brainwash his prisoners by pretending that unlike things are like,

‘You are trying to make us think that milk is the same sort of thing as sweat or dung.’ ‘And pray, what difference is there except by custom?’ ‘Are you a liar or only a fool, that you see no difference between that which Nature casts out as refuse and that which she stores up as food?’

It is therefore incumbent on us to make arguments that at a minimum provide the act itself must be morally good or at least indifferent. Likewise, any good effect should not be produced by means of the evil effect. It follows that nurturing relationships like, birth, marriage or family are absent in prostitution.

​‘central to the character of prostitution is that it is indiscriminate and loveless… It is that the sex is both indiscriminate and for reward… By making her sexual services available for hire to strangers in the marketplace, the sex worker empties the sex act of much of its private and intimate character. She is not nurturing relationships or taking life-affirming decisions about birth, marriage or family; she is making money.’ S v Jordan

The pathos underpinning American Justice Oliver Wendell Holmes saying, ‘I quite agree that a law should be called good if it reflects the will of the dominant forces of the community, even if it will take us to hell…’ is I think a deeply troubling part of the radical ideology of prostitution. Mistaken views are just that, mistaken. The most important investment all South Africans can make is to protect the dignity and safety of all its people by affirming individual dignity and corporate responsibility. This can be achieved  by providing people at risk with dignity affirming options.

The post Indignity in Prostitution 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.