By Dieter Lubbe, Founding Director of the Pinion Project

The value of consent is sometimes overlooked by adults, generally speaking. We sign consent forms, agree to terms and conditions with everything from App’s to cell phone contracts and so on (as mere formalities). For many, this day to day public understanding of consent is altogether different from the way we think about our agreement in private relationships (this is particularly true of our intimate choices). Tacit to this notion of intimate choice, is the idea that the state has no business interfering with what happens behind closed doors between consenting adults. But of course, some situations, even in private, do have public interest. If, for example, a professional couple shares insider trading information in bed (behind closed doors) they are guilty of a crime. The private nature of the location will be understood as irrelevant in such cases.

Recently, the topic of consent has gained media attention in cases involving gender based violence. The disconnect between entitlement and consent calls for a deeper understanding of the subject. In this article, we will touch on a few of the important themes pertaining to this significant subject. We will specifically be considering ideas surrounding a legal understanding of consent, with particular reference to children.

It is important at the outset to take a moment to consider the extent of sexual exploitation of children in South Africa. Behind the statistics are young people, deserving of our empathy. Both teen pregnancy and HIV statistics help frame the magnitude of this challenge. According to South Africa’s National Strategic Plan for HIV, TB and STIs 2017-2022.

‘Young women (aged between 15 and 24 years) in South Africa have the highest HIV incidence of any age or sex cohort… One third of teenage girls become pregnant before the age of 20. Responding to the social and structural drivers of this vulnerability (which leads young women towards having sexual relationships – many of which are transactional in nature – with men who are five to 10 years older than they are) is key to controlling the epidemic.’

To be clear, in terms of the sugar daddy or so-called ‘blessers,’ this behavior must be condemned irrespective of ‘social and structural drivers’. SA Criminal Law Section 17 leaves no doubt that any child involved in ‘transactional sex’ is being sexually exploited. Adults who take advantage of children in this manner must face the punitive force of the law. The call to protect and help young girls whose lives are impacted by such abuse requires a multidisciplinary response. Furthermore, a social driver like exposing children to sexually-explicit materials also constitutes a form of child sexual abuse, more appropriately described as the non-contact abuse. In certain circumstances this abuse constitute the offence of indecent assault. Sexual touching is not the only kind of child sexual abuse.  It is abuse to intentionally expose a child to pornography.

So, in the light of this information, the word ‘consent’ takes on a deeper ethical commitment in which it should be informed, age appropriate and in the best interests of the child. Empowering people to avoid exploitation before it happens is ultimately the high road to take.

Getting “informed” about CONSENT?

According to the South African Sexual Offences Act definition, ‘consent’ means voluntary or uncoerced agreement. The idea of an unforced smile is sometimes given as an example of uncoerced. But as anyone who has worked with children knows, children do not always behave from the vantage point of the better angels of our human nature. Furthermore, not everything legally allowed is beneficial. The court in SA has contended that the law is not always the best instrument for shaping children’s consensual peer group behaviour. Sex education then becomes a significant focus in the fight to empower families and communities. We cannot overemphasize this point. Consent, if it is anything, is an act of reason and deliberation. The mind weighs in on the balance between good and evil. Children, in particular, cannot be expected to carry this burden alone. Bruce C. Hafen, Professor of Law, Brigham Young University, points out:

“…‘protection rights’ rather than ‘choice rights’ for children… Giving children choices that they are not prepared to make can actually undermine the fulfilment of their most essential needs—which, in effect, abandons them to their rights. By their very nature as developing persons, children are dependent on parents and other adults to help them meet their needs.”

Family Education – Dignity

Parents and guardians need to live and teach a culture of respect. This starts when little children first begin to learn about sharing toys etc. Respect, permission and empathy must be part of everyday living and not only our most intimate interactions. We affirm that the grounding of human rights and values starts with the recognition of the dignity of every person. Human dignity, in our international covenants, affirms the fundamental worth of people. This worth includes the body, which is not merely organic, it is to be protected and respected. Dignity in this frame of worth, also makes a relational claim. We are to recognise the dignity in others.

With this said, recognition of the natural family and community has been significantly challenged by a narrative of sexual entitlement (which gained momentum in the 1960s). The problem is that, without a sense of a true good in relationships, we don’t know to what we should consent. It is uncontroversial to assert that monogamous relationships, like marriage, have significant benefits to the couple, their children and society at large in terms of health outcomes. If people think that human rights are about the pursuit of pleasure and sensual self-indulgence (hedonism), they are more likely to indulge in sexual vice. The central tenet of hedonism—that the good consists in the experiential—is incorrect. This, in turn, impacts everybody, as Professor Robert P George put it:

“…private acts of vice, when they multiply and become widespread, can imperil important public interests. This fact embarrasses philosophical efforts to draw a sharp line that distinguishes a realm of “private” morality that is not subject to law from a domain of public actions that may rightly be subjected to legal regulation.”

It is the case that abstinence from sexual intercourse is the most effective method of preventing unintended pregnancy and sexually transmitted diseases, including HIV among our youth. This claim is often challenged via the educational outcomes of something called ‘abstinence based sexual education’ vs ‘comprehensive sexuality education’. The evidence, we are told, indicates that children who are taught they should ‘abstain’, are statistically more at risk than children who are fully informed on every sexual proclivity. In formal logic, a false dichotomy sets up two alternative points of view as if they were the only options, argues against one of them, and thereby concludes that the other must be true. We should not be so easily distracted by this myopic view when we are faced with very difficult ethical questions. We must dispel the myth that ‘the worst manifestation of authoritarianism is – self imposed control’.

This fiction was skilfully introduced as ‘anti-fascism’ in the sixties by thinkers like Theodor W. Adorno and Herbert Marcuse. In short, they inverted ideas around sexual self-control to undermine the natural family in an effort to advance a political agenda of state control. Margaret Sanger’s eugenics philosophy also had a significant impact as it opened the way to ever increasing government control of the private sphere. We cannot afford to indulge such mistaken ideologies any longer.

Conclusion

The sexual entitlement narrative and the permission-giving beliefs that result in gender based violence are forcing us to reassess our collective responsibilities and reasoning. We believe both parents and children are being influence by a sexualised cultural narrative. The sexualised cultural narrative tells a deceptive story about child-autonomy in the frame of consensual sex rights. Hedonism is mistaken, and therefore, when it is illegitimately connected with ‘new sexual rights’, it is mistaken (biology is not bigotry as some have said). These ideas must buttress our efforts and policy vision in the defence of human dignity and the right to be safe, empowered, and free from sexual exploitation.

The post Empowering Children appeared first on Pinion Project.

By Dieter Lubbe

This article, is a part of the Pinion Project research done in preparation for the Media Campaign Against Human Trafficking (MeCAHT) conference 2018.

Connotations

The United States historic pioneering experiment in democracy, demonstrates the messy journey from the claim in the Declaration of Independence — ‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness’. Then only to see, many years later that is, the structural emancipation of slaves with the enactment of the 13th amendment (from 1776 to 1865). The government, for and by the people, turned out to be a project fraught with challenges against factionalism from both grass roots and within the halls of authority. What is important to recognise in a general understanding of the connotations historically associated with the word dignity, is this connection between individual dignity and the democratic regime. Dignity in this frame, stems from the development of the west and particularly our efforts to avoid such horrors as found in the Nazi concentration camps.

‘the Holocaust shocked the moral consciousness of all civilised peoples into an increased awareness of the inherent dignity of every human being,” Johannes Morsink, Inherent human rights: philosophical roots of the Universal Declaration.

It is true that the idea is not unique to this moment in history or even the west. Still, I find this formulation of the historical intervention seen in both the American experiment and later in the Nazi — crimes against humanity, instructive with respect to the warrant for the word dignity being included in the Universal Declaration of Rights (1948) affirmation of human rights. This historical perspective also speaks to the method of compromise adopted in order to reach consensus in this regard. To jump ahead a little in history, to the former justice of the Constitutional Court of South Africa, 1994 to 2004, Laurie Ackermann. In his book Human Dignity: Lodestar for Equality in South Africa, Ackermann captures, a nuance perspective of the developed essence of the compromise.

‘…in the Abrahamic religious writings and in secular philosophy,… there is the explicit recognition that human worth (dignity) — or something closely resembling it – is the necessary criterion of attribution when considering issues of equality. Not only do these religious and secular philosophical views, as part of the general history of ideas, inform the legal meaning of equality and human worth, but they quite independently form part of an ‘overlapping consensus’ in the sense that the political philosopher John Rawls uses this concept,… An overlapping consensus of this nature can be constituted although different premises are used by different people to reach the same conclusion, in our case the same legal conclusion regarding dignity and equality.’

What is clear from this observation by Ackermann is, ‘overlapping consensus’ — or something closely resembling it, has played an important role in how the term dignity came to be understood in legal terms. Likewise, the debate pertaining to the soundness of competing worldview premises in support of this idea, Kantian, Aristotelian or Utilitarian for example, remains alive to be debated. We see something of this idea from the pen of Martin Luther King, Jr in his Letter from a Birmingham Jail,

‘How does one determine when a law is just or unjust? A just law is a man-made code that squares with the moral law, or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas, an unjust law is a human law that is not rooted in eternal and natural law. Any law that uplifts human personality is just.’

In Constitutional Law by Rautenbach-Malherbe, we read, ‘Constitution-makers and those who interpret and apply constitutions do not create and cannot obliterate human dignity by their definitions’. Human dignity in this frame is an ontological claim, suggest Professor of equality and human rights law Christopher McCrudden in his article entitled Human Dignity and Judicial Interpretation of Human Rights, that is it purports to tell to how things are. Much more can be said at this junction. Still, for the purpose of this article, dignity so understood, makes a relational claim, that is we are to recognise the dignity in others. Furthermore, dignity collectively, calls for limited state authority [McCrudden]. ‘As a legal concept, human dignity functions not only as a moral value but also as a universal right that guarantees in principle the respect and protection of humanity per se’. [Steinmann AC, The legal significance of human dignity]

Morel Warrant

Ackermann J in the Sodomy case said, ‘The enforcement of the private moral views of a section of the community, which are based to a large extent on nothing more than prejudice, cannot qualify as such a legitimate purpose.’ Ackermann J ruled that the Constitutional Court could not rule on moral claims without sufficient warrant. Still, the dismissal of moral claims by the court in the Ackermann J ruling, is not to suggest that the court cannot rule on moral claims at all.

State v Jordan [104] All open and democratic societies are confronted with the need to determine the scope for pluralist tolerance of unpopular forms of behaviour. To posit a pluralist constitutional democracy that is tolerant of different forms of conduct is not, however, to presuppose one without morality or without a point of view. A pluralist constitutional democracy does not banish concepts of right and wrong, nor envisage a world without good and evil. It is impartial in its dealings with people and groups, but it is not neutral in its value system. Our Constitution certainly does not debar the state from enforcing morality. Indeed, the Bill of Rights is nothing if not a document founded on deep civic morality.

The essence then of the argument rests on which moral claims are warranted? Professor Robert P. George, McCormick Professor of Jurisprudence and Director of the James Madison Program in American Ideals and Institutions at Princeton explains his understanding of moral reasoning this way,

‘…whether in St. Paul or Aquinas—or in Plato, Aristotle, Musonius Rufus, and others untouched by Jewish or Christian thought—not because it tries to read premises or conclusions off biological or sociological facts. It doesn’t. Instead, it considers what are the basic forms of human flourishing: conditions or activities that are good for us in themselves: friendship, knowledge, life and health, and the like. The identification of these of course takes into account biological and other cause-and-effect facts. But it is focused not on those but on the intrinsic goodness of the various elements of human fulfilment. We can then reason to the moral goodness and badness of types of choice and act by considering which choices are consistent with love and respect for ourselves and all others in regard to each of these basic dimensions of fulfilment. A choice consistent with love and respect for all the goods in all persons is morally upright; one that isn’t, is immoral. That determination of consistency must take into account the fundamental circumstances of all our choices and acts. The basic goods for which we can act are many and various, so we cannot realise them all at once. But they all remain always goods, and each in its own irreplaceable way. So in pursuing some, we ought not to choose to denigrate or damage any of the others. And as they are goods for all people, we ought not to let our choosing be deflected by prejudice, wayward passion, and the like. [Public Morality, Public Reason, November 2006]

With this said we can observe that claims that reports something to be unjust are inescapably moral claims and are hence not immune to questions regarding there warrant. Furthermore, postmodern claims — that ideas and beliefs are not true but only useful for controlling the environment, are self refuting. That is when applied to the idea of postmodernism itself, as only useful for controlling the environment, the argument cuts off the branch it is sitting on, so to speak. Likewise, not every interpretation of what is the case is compatible with the world in which we live.

Rawls, in effect, says look religious people have a legitimate complaint against what has gone by the name liberalism to the extent that liberalism allows metaphysical ideas so long as they’re secular to be introduced into public discourse and account as valid reasons for public policy without giving religious reasons the same standing and permission. But instead of saying, therefore, we need to broaden the permission in theory for reliance Rawls narrowed it [Robert P. George]​

Denotation

Dignity is that whereby a person excels, and merits respect or consideration from other persons. ‘People qualify to be bearers of this right simply because they are human. The right protects the worth that attaches to the actuality of being human’ Rautenbach-Malherbe. The Afrikaans word, menswaardigheid captures the sense in which the word is being used (in terms of worth). This is important when it comes to questions of equity. In what sense are all people equal? The notion of dignity provides criteria — from the actuality of being human.

Immanuel Kant’s influence on ideas regarding the objectification associated with prostitution is relevant I believe. Not only has Kantian thought influenced feminists like Catharine MacKinnon and Andrea Dworkin but it can be argued, has influenced the Constitutional jurisprudence as exemplified in the Jordan matter. Kant held, that to allow others to use your body sexually in exchange for money resulted in the loss of humanity and becoming an object. ‘to allow one’s person for profit to be used for the satisfaction of sexual desire, to make of oneself an Object of demand, is to dispose over oneself as over a thing’ [Kant Lectures on Ethics].

Andrea Dworkin argues, ‘When objectification occurs, a person is depersonalised, so that no individuality or integrity is available socially or in what is an extremely circumscribed privacy. Objectification is an injury right at the heart of discrimination: those who can be used as if they are not fully human are no longer fully human in social terms; their humanity is hurt by being diminished’ .

Of course Kant held that the only relationship choice, consistent with love and respect for ourselves is monogamous marriage. Equality after all must have a criterion of attribution namely human dignity (equality in dignity). The spouses exclusively yield their persons to each other, so neither of them is at risk of losing his or her person and becoming an object. Recently, the United States Court of Appeals for the Ninth Circuit unanimously affirmed that prostitution is not a constitutionally protected fundamental right. The Court ruled that prostitution as a commercial activity is fraught with dangers that the state has a “substantial interest” in preventing.

‘…panel held a relationship between a prostitute and a client is not protected by the Due Process Clause of the Fourteenth Amendment, and therefore laws invalidating prostitution may be justified by rational basis review…relationship between a prostitute and a client does not qualify as a relationship protected by a right of association. The panel further rejected plaintiffs’ assertion that Section 647(b) violates their substantive due process right to earn a living. The panel held that there is no constitutional rights to engage in illegal employment, namely, prostitution. Finally, the panel held that Section 647(b) does not violate the First Amendment freedom of speech because prostitution does not constitute protected commercial speech and therefore does not warrant such protection.’

The post Uplift Human Personality appeared first on Pinion Project.

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.

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.

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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.

By Dieter Lubbe

The following headline appeared in the Sowetan Newspaper recently. 1000 Schoolgirls Fall Pregnant in One Year in Ekurhuleni.  These types of reports and other research evidence, highlighting sexual abuse, is becoming overwhelmingly commonplace in South Africa. This should give us pause as we consider each young life is more than a mere number. This tragic abuse of youth vulnerability highlights the ongoing struggle to uphold the rule of law in the area of gender based violence in our country. We all need to consider how we can position ourselves to support the efforts of law enforcement as we join with the movement to end sexual exploitation. The Times Live reporting on the same case noted:

Hlomela Bucwa‚ MP and Democratic Alliance member of the Portfolio Committee on Higher Education and Training‚ highlighted social ills and education failures during a youth day address in Parliament last month. She cited statistics showing that between 2014 and 2016‚ a total of 42‚253 pupils from Grades 3 to 12 fell pregnant – noting that 193 of these pupils were in Grades 3‚ 4 and 5. The DA commented on the pre-teen and teenager pregnancies in a previous release‚ stating: “This information should shock every South African. Young girls‚ most under the legal age of 16‚ are having their futures undermined‚ likely through being taken advantage of or abused.”

Getting “informed” about CONSENT?

The last sentence in the quote above, ‘Young girls‚ most under the legal age of 16‚ are having their futures undermined‚ likely through being taken advantage of or abused.” strikes a nerve for us at Pinion Project. Our vision is to defend human dignity and the right to be safe, empowered, and free from sexual exploitation. With this in mind, this article looks at the notion of consent within the context of the sexulisation of children (with reference to South Africa).

To be clear, in terms of the sugar daddy or so-called ‘blessers,’ this behavior must be condemned. SA Criminal Law Section 17 leaves no doubt that any child involved in ‘transactional sex’ is being sexually exploited. Hence, consensual sexual relations do not include a right to prostitution and cannot be interpreted to include adult/child sexual relations. We need to guard against being distracted from this point.

By way of background information to our understanding, we need to make an effort to grasp some the basic concepts in South African law before we get going in this article. According to the South African Sexual Offences Act definition, ‘consent’ means voluntary or uncoerced agreement. The South African Criminal Law (Sexual offences and Related Matters) was signed into law in 2007. This law criminalised sexual activity between children under the age of 16. However, in 2013, the Constitutional Court agreed that Section 15 (which criminalised sexual activity between adolescents) was unconstitutional. Government subsequently amended Section 15, which now reads:

A person (‘A’) who commits an act of sexual penetration with a child (‘B’) who is 12 years of age or older but under the age of 16 years is, despite the consent of B to the commission of such an act, is guilty of the offence of having committed an act of unconsensual sexual penetration with a child, unless A, at the time of the alleged commission of such an act, was— (a) 12 years of age or older but under the age of 16 years; or (b) either 16 or 17 years of age and the age difference between A and B was not more than two years.

Simply put, an adult who has consensual sex with a child between the ages of 12 and 16, is guilty of statutory rape, despite consent. However, if children between the ages of 12 and 16 engage in consensual penetrative sex acts with each other, it is not considered a crime. Similarly, a 17 year old can legally engage in consensual penetrative sex with a younger child, provided there is no more than a two year age gap between them. This is not to imply that  everything legally allowed is beneficial to be sure. The court contended that the law was not the best instrument for shaping children’s consensual behaviour. Sex education then becomes a significant focus in the fight to empower families and communities. We cannot overemphasize this point. Our concern ethically speaking, is that we always ensure that consent is sufficiently informed. After all, consent, if it is anything, is an act of reason and deliberation. The mind weighs in on the balance between good and evil. Children, in particular, cannot be expected to carry this burden alone (I will argue this point in some detail later in this essay).

According to South Africa’s National Strategic Plan for HIV, TB and STIs 2017-2022.

‘Young women (aged between 15 and 24 years) in South Africa have the highest HIV incidence of any age or sex cohort… One third of teenage girls become pregnant before the age of 20. Responding to the social and structural drivers of this vulnerability (which leads young women towards having sexual relationships – many of which are transactional in nature – with men who are five to 10 years older than they are) is key to controlling the epidemic.’

In this light of the HIV and STIs epidemic, using the word, ‘consent’, takes on a deeper ethical commitment. Consent in this frame should be informed. By way of example, the permission a patient gives to a doctor for treatment is based on the information that the doctor communicated to the patient regarding the possible risks and benefits of the treatment. Now due to the health risks in this public health crisis, this legal usage of ‘informed consent’ is relevant in public sex education policy.  As seen above, the need for information on Sexually Transmitted Diseases (STDs) is important for anyone who is evaluating the risks of consensual sex acts (also see footnote on abortion). The conversation takes an important turn at this point as we consider ‘child sexual rights’. Again for context we note with Carmen Barroso, Western Hemisphere Regional Director for Planned Parenthood Federation, stated, ‘Traditional human rights, they were civil and political. Rights, they were not referring to the sexuality of anybody.’ The inclusion of ‘sexual rights’ language under the umbrella of human rights was never the intent of original human rights declarations or agreements.

Child Rights Public Education?

It is generally agreed upon that it is parent’s job to teach children how to be happy, healthy adults. Children need to learn the social rules about how and when to interact with others and with whom they should interact. Parents and guardians need to live and teach a culture of respect. This starts when little children first start learning about sharing toys etc. Respect and permission must be part of everyday living and not only our most intimate interactions. We believe that the grounding of human rights and values starts with the recognition of the dignity of every person. Human dignity says that people are amazing. Dignity in this frame also makes a relational claim, we are to recognise the dignity in others. Collectively, this Dignity calls for a limitation of state authority when it comes to matters of indifference. Dignity in this rough and ready sense then needs to be honored by humanity.

The need to educate parents and guardians is very important. However, this family and community view has been significantly challenged by a sexual entitlement narrative (which gained momentum in the 1960’s). Foundational to this view is the belief that any sex with anybody is probably a good thing; it is not about marriage or having children or the building of healthy societies. Non-procreative sexual expression is a simple necessity intrinsically tied to human fulfillment and personal identity (according to United States of America’s Supreme Court). Sex then is ultimately subject to one’s own desires (to obtain sexual pleasure).

With this ideological undercurrent in mind, it is easier to see why so many believe that sexual rights  – split the value of sex from the facts of biology. This is particularly relevant when it comes to public sex education. Family Watch International (a nonprofit international educational organisation in consultative status with the Economic and Social Council of the United Nations) states that most of the United Nation ‘comprehensive sexuality education’ programs contain many of the following components:

• Teach children to advocate for “sexual rights.”
• Denigrate the religious and cultural values of their parents or community.
• Teach children various ways to obtain sexual pleasure.
• Promote condoms to children without informing them of their failure rates.
• Teach children to masturbate.
• Encourage children to experiment sexually with individuals of their own sex or the opposite sex.
• Promote anal or oral sex to children or teach them these behaviours are safe.
• Promote promiscuity to children as a ‘right’.
• Provide sexual counselling, information or services to minors without parental consent.
• Avoid unwanted pregnancies and unsafe abortions;

These UN comprehensive sexuality education ‘components’ suggest a negative individualism that is not helpful.  The distinction here is as Bruce C. Hafen, Professor of Law, Brigham Young University points out,

“…‘protection rights’ rather than ‘choice rights’ for children… Giving children choices that they are not prepared to make can actually undermine the fulfilment of their most essential needs—which, in effect, abandons them to their rights. By their very nature as developing persons, children are dependent on parents and other adults to help them meet their needs.”

Good legislation and policy are guiding principles of ‘In the best interests of the child’. Yet, as we see above, it has proved difficult to translate these rights and protections into the everyday lived experience of so many women and children. So what can be said? The problem is that, without a sense of a true good in relationships, we don’t know to what we should consent. It is uncontroversial to assert that monogamous relationships, like marriage, have significant benefits to the couple, their children and society at large in terms of health outcomes. However, negative individualism is eroding even this legitimate framing of relationships. If people think that human rights are about the pursuit of pleasure and sensual self-indulgence (hedonism), they are more likely to indulge in sexual vice. The central tenet of hedonism—that the good consists in the experiential—is incorrect. This intern impacts everybody as Professor Robert P George put it,

“…private acts of vice, when they multiply and become widespread, can imperil important public interests. This fact embarrasses philosophical efforts to draw a sharp line that distinguishes a realm of “private” morality that is not subject to law from a domain of public actions that may rightly be subjected to legal regulation.”

The need for South Africans to speak out against negative individualism, as we reflect on our collective responsibility, is very important. Professor of Ethics at Brigham University, Karu, Nigeria Samuel Waje Kunhiyop notes;

“It is a shame that negative individualism is beginning to be imbibed by Africans. The breakdown of law and the emergence of many other moral crises can be attributed mainly to overemphasis on individual rights and freedom.”

It is the case that abstinence from sexual intercourse is the most effective method of preventing unintended pregnancy and sexually transmitted diseases, including HIV among our youth. This claim is often challenged via the educational outcomes of something called ‘abstinence based sexual education’ vs ‘comprehensive sexuality education’. The evidence, we are told, indicates that children who are taught to, ‘abstain only’, are statistically more at risk than children who are fully informed on every sexual proclivity. In formal logic, a false dichotomy sets up two alternative points of view as if they were the only options, argues against one of them, and thereby concludes that the other must be true. As I have argued above, we should not be so easily distracted by this myopic view when we are faced with very difficult ethical questions.

Conclusion

The sexual entitlement narrative and the permission-giving beliefs that result in gender based violence is forcing us to reassess our collective responsibilities and reasoning. We believe both parents and children are being influence by a sexulised cultural narrative. The sexulised cultural narrative tells a deceptive story about child-autonomy in the frame of consensual sex rights. Hedonism is mistaken and therefore when it is illegitimately connected with ‘new sexual rights’ it is mistaken (biology is not bigotry as some have said). This fact must buttress our efforts and policy vision in the defence of human dignity and the right to be safe, empowered, and free from sexual exploitation.  

Note:

Currently the political rhetoric tends to focus on the ‘unplanned babies’ with an eye on the overseas funding that this framing of the situation could motivate. When a teenager falls pregnant, we understand that it is not because her body manifests a pregnancy as the result of an illness. Hence, conflating of teen pregnancy with HIV and STIs illness is a common mistake in reason. What is in view are the issues around birth control, statutory rape and consent between children. The difficulty with birth control we suggest, is what often starts as a conversation about the right to be protected from the illegal practice in medicine, turns into an ideological duty to use abortion as birth control. This view is fraught with inconvenient facts. Planned Parenthood Federation, recently acknowledged an alarming “surge” in maternal deaths in South Africa even though that country, since 1996, has had some of the most permissive abortion laws on the African continent.’ Much more can be said about this as we put aside the myth that abortion on demand is the best use of the budget. Ethically, we are committed to point out that abortions have both short – and long-term adverse effects including:

• Accidental tearing of uterine artery, tearing of the cervix, or scarring of the uterine wall
• Heavy bleeding, requiring blood transfusions
• Abdominal cramping, nausea, vomiting, diarrhoea, and infection
• Allergic reaction to drugs or anesthesia, sometimes causing convulsions, or worse
• Heart attack, embolisms (caused by blood clots or other foreign matter in blood
• vessels)
• Perforation of the uterus and damage to other internal organs
• Miscarriage of future pregnancies, infertility or sterility
• Increased risk of subsequent tubal pregnancies
• Death (some estimates as high as 20 percent of maternal deaths are due to abortion)
• Guilt, anger, anxiety, depression, suicidal thoughts
• Anniversary grief, flashbacks of abortion, memory repression
• Sexual dysfunction, relationship problems

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