What is Private?

The idea that some things are private to human beings concerning intimate relationships is of great relevance today. Intimate relationships, for example, cannot be deemed private in the same way a business is private. It follows, in a legal sense (at least in South Africa CURRENTLY), that commercial acts are disconnected from non-commercial acts in some important ways. Private acts in this very broad sense of the word, are protected from unwarranted state involvement because private conduct has no distinct public interest (is sacrosanct or immune from criticism). 

In the larger context of political ideas framing the private sphere, we might think of the ongoing rhetoric of the ANC ‘National Democratic Revolution’ flooding the airwaves with the concomitant intent to undermine private property. We may then pause to consider some first principles from the communist manifesto. This to fill in the gaps in our understanding of the terms within this particular ideological frame. Moreover, our concern extends to the broader context of how this thinking informs the South African ad hoc brand of socialism more generally. This first approximation on the part of the Pinion Project is to be understood as a basic overview – we trust it will bring some perspective to the readers’ understanding of property (beyond the highly publicised restitution of farmland). 

Marriage and Prostitution

Someone may ask at this point: “Why is the Pinion Project interested in this?” Our concern stems from the sort of thinking, explicit in the communist manifesto. This with particular reference to the idea that both marriage and prostitution are understood to be corrupt relationships (on the criteria that they both have implicit commercial interest). The Economic Freedom Fighters (EFF) have made it clear that they intend to argue for the complete legalisation of prostitution in harmony with this idea. Why one might ask? How might we understand the move by the EFF. Of course one could try to find some, fact-checked level quotes, and pin a position on the EFF to make a particular point. We believe such an effort will do little to explain anything. However, the remedy then, might be found in understanding the history of the communist manifesto, and its two-step plan. First, legalise the communality of women (abolition of marriage together with the legalization of prostitution). To be clear, this legislation should not be understood as an endorsement of anything like classical liberal values. Rather, it is thought of as a transition phase in which the evils of the capitalist system are exposed (a stepping stone to crash the system). The next step is for the state to regulate relationships in which capital or economic gain do not play a role in the procreative act. Children, on such Utopian schemes, are sometimes thought of as the responsibility of the collective rather than the people who produced them (children are not the property of the couple). The state then defines the context for procreation as a matter of legislated social engineering. What is clear on this view is that marriage has no distinct public value. Put another way, “marriage as a bodily as well as an emotional and spiritual bond, distinguished thus by its comprehensiveness, which is, like all love, effusive: flowing out into the wide sharing of family life and to lifelong fidelity” (from the book, What Is Marriage? Man and Woman: A Defense by Robert P. George, Ryan T. Anderson and Sherif Girgis), is of no value in the socialist mind.

“Bourgeois marriage is in reality a system of wives in common and thus, at the worst, what the Communists might possibly be reproached with is that they desire to introduce, in the place of a hypocritically concealed, an openly legalised communality of women.” Communist Manifesto 

The argument is made, via Friedrich Engels (1820-1895 German philosopher, and a committed communist) and his predecessors, that in history the practice of male ownership of property in marriage makes the practice problematic in itself. On this view one sees the all too familiar category mistake – viewing everything via the lens of harmful patriarchy (power), arguably a hasty generalisation. For the sake of brevity, the corruption of relationships via unjustified economic interest does not, we believe, provide a cogent argument to show necessarily (In argument shorthand):

Premise 1: Economic interests are bad

Premise 2: Acts of human commitment have economic interests.

Conclusion: Acts of human commitment are bad 

Indeed, if this was the case, that all human commitments are bad via the communist criteria, then the argument seems to turn on itself, instituting a particular communist form of human non-commitment commitment. Well some may say, at the least, this non-commitment commitment should be thought of as moving to something better eventually (harm reduction). Giving the state the power to re-imagine our private relationships, seems to us an altogether horrible idea (particularly on something so under described). The public appeal to the sense of compassion for equality among people then provides warrant for notions like – all things in common, being understood to mean: no ownership of private property, no marriage and that children are to be educated via the state. 

Communality of Women

South Africa has reintroduced the plurality of wives (not husbands interestingly enough). This certainly did appear, at first, like a relaxing of the law as an even-handed approach by government to matters of social custom. Even the changes to the same sex marriage law had the rhetorical trappings of genuine concern for minorities in South Africa. But is this not the revolutionary state moving toward undermining those institutions, that resist its power, in the name of being progressive? We think here of president Cyril Ramaphosa treating the South African constitution as something malleable (in terms of things private generally as a means to a revolutionary end). Even if this is not part of some grand conspiracy worldview narrative, could this not be part of an idea shift which opens the way to state social engineering, disconnecting our personal commitments in a grab for power? This idea can be imagined in our modern context via the fictional writing of Aldous Huxley’s Brave New World. In Huxley’s book we see the totalitarian government educating the youth to embrace all manner of self-indulgent non-commitment sex acts as a means to control them. Indeed, if the definition of marriage is made to include everything, then it fails to be a meaningful distinction.

Disconnecting Sex from Commitment

The English philosopher, Sir Roger Scruton puts it this way in his book, Sexual Desire, he writes,  ‘Attempts to liken sexual desire to appetite, disconnects the implicit interpersonal nature of human sexual responses.’ Indeed, the sexual revolution assault on sexual reticence can be seen in the deconstruction (level of analysis) being implemented in the sciences. The instrumental explanation of sexual desire championed by Sigmund Freud, Alfred C Kinsey and Michel Foucault, deconstruct sexual desire from the interpersonal sense. The desire for sex is reduced to an appetite. Sexual desire framed as an appetite, fueled the myth that ‘the worst manifestation of authoritarianism is – self-imposed control’. Rape, violence and all manner of pathology are seen to emanate from sexual repression (unconscious mechanism employed to keep undesirable ideas from conscious thought). Indeed, Freud’s theory is unfalsifiable – it can neither be proved true or refuted. For example, the unconscious mind is difficult to test and measure objectively. Furthermore, ideas in the same neighborhood seem disconnected from everyday experience. 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.  A level of analysis that is in harmony with human dignity must account for self-control (emotional intelligence).

With this said, the South African government is going to introduce Comprehensive Sexuality Education (CSE) in 2020 in schools. CSE has been widely criticised for the Brave New World approach it implements. This is grounds for profound concern and more than a matter of conspiracy theory. The sociological data in defence of the natural family, as the context which best serves the interests of the child, is sufficient evidence that this reductionist view, exemplified in the communist thinking is mistaken. 

Marriage Breakdown

Still, it is clear that marriage is not without its challenges in a post sexual liberation culture. If the #MeToo movement points to any fact, then it is this – sexual liberation has not been without challenges. The notion that, with birth control technology, sex is no longer a problem to be solved but rather a pleasure to be enjoyed by all (at any time), has been found to be mistaken. Consent is an insufficient test when the things being consented to are not defined. Children are particularly vulnerable to those who consider themselves more open-minded than others. It is not clear to me at this stage what the political leanings of Freud and Kinsey actually were. Still, just as Marx admired Charles Darwin (albeit somewhat critically), this neighbourhood of ideas seems to overlap in some important ways that deserve our attention. It is not difficult to see the work of Kinsey fitting the into the dystopian vision of Huxley under girding what is in affect, a wedge between children and family.  Modern Marxist like Theodor W. Adorno, Herbert Marcuse and Michel Foucault have explicitly moved in this direction. Certainly, as John D’Emilio and Estelle B. Freedman, in their book Intimate Matters: A History of Sexuality in America noted, 

“the strongest assault on sexual reticence in the public realm emerged not from the pornographic fringe, nor from the popular culture, but from the respectable domain of science,” 

In her book Kinsey, Sex and Fraud, The Indoctrination of a People by Dr. Judith A. Reisman and Edward W. Eichel they note;

“No man in modern times has shaped public attitudes to, and perceptions of human sexuality more than the late Alfred C. Kinsey. He advocated that all sexual behaviours considered deviant were normal, while polemicizing that exclusive heterosexuality was abnormal and a product of cultural inhibitions and societal conditioning. By purporting to demonstrate a wide divergence between real sexual behavior and publicly espoused norms, the implication was that ‘cultural values surrounding sex needed revision.’”

This revisionist trend has radically undermined domestic codes, profoundly challenging even our understanding of the biological complementary of male and female relationships. The practical outworking of this reductionist view puts the reconstituting of our private relationships in the hands of the state. 

Conclusion

I believe it is almost too late for South Africa in this respect (lack of political will). Still, for the rest of Africa our appeal is – take the time to think about the implications of your actions with respect to freedom, love and liberty.

The post Ideas that Frame the Sexualisation of Children 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.

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

By Dieter Lubbe

‘Life keeps proving that although lies tend to be more agile than the truth, it’s the truth that triumphs in the end’ Prof Thuli Madonsela

In this article, I will look at arguments surrounding the complete decriminalisation of the sex industry in South Africa. The article is intended to give the reader a basic overview of claims in the debate. I start by setting out one of the most popular arguments (Harm Reduction Argument) being forwarded in support of decriminalisation. My counter argument is then intended to provide the reader with some insights into the points of disagreement.

From my perspective, we cannot reject the constitutionally permissible prohibition on prostitution in South Africa primarily because:

• Commercial sex acts differ from consensual non-commercial sex acts in principle.
• I argue in support of the South African constitutional ruling that legalisation of prostitution imperils important public interests

Summary of the Harm Reduction Argument:

Premise One. Prohibitions on prostitution drive the sex industry underground and this impacts the autonomy (rights) of individuals who consent to such acts.

Premise Two. Decriminalising all aspects of prostitution – including brothel-owning and sex-buying – will protect the human rights of individuals who consent to such commercial sex acts.

Conclusion: Prostitution should be fully decriminalised.

Explicit in premise one is the idea that the state is currently diminishing human rights. Some arrive at this conclusion from a practical standpoint. That is, if something is unregulated or rather underregulated then the rights of those involved will not be protected. Others come at it from a libertarian commitment, i.e. the state should not interfere with an individual’s freedom to choose. However, it is incorrect to conclude that prohibition is unregulated in the sense of no rules.

For the sake of clarity, it would be more accurate to say – underground criminal activity will exist irrespective of the legal framework. Likewise, corruption and negligence by law enforcement personnel is not unique to prostituted people only. Indeed, the call for reform with respect to law enforcement personnel is one area on which almost everyone agrees. The question in premise one is – are we assuming a universal right to sell sex acts or attempting to argue from the neglect of other rights (e.g. health and access to justice) to a new right? With this question in mind, we can look to constitutional ideas around consent. Important to note at this point is that ‘sex work’ activists (those who see prostitution as legitimate work) are seeking not only to change the law but also to change the way society at large thinks about prostitution. This is argued under the banner of gender equity in support of female human rights. It is mistaken to assume that all feminists agree on what constitutes sexual liberation in this regard. Hence, it is misleading to argue as if the notion of ‘sex work’ liberating women was uncontroversial (in Africa particularly).

The notion of consent is important to this case because in a liberal democracy the freedom to choose is a significant constitutional value. But for the moment it is sufficient for us to observe that consent is not the ultimate defeater to any talk of prohibition. So the right ‘not to be enslaved’, for example, cannot be waived by a person in the name of free choice. So even if it seemed like a good idea to me to pay my bills by selling myself into slavery, the law justifiably prohibits me from doing so. The reasoning behind such a limit revolves around the notion that slavery diminishes what it is for us to be human collectively. Why is this relevant? The South African Constitutional Court found that, unlike private consensual sex acts, prostitution impacts on our collective humanity. That is, sex buyers treat the body of the prostituted person in a manner at odds with our collective human dignity as a species. The State, therefore, has an obligation to protect human dignity irrespective of the preferences of the individual.

The harm reduction activists’ argument also commits, what I think of as a ‘half-truth’ fallacy. The mistake in reasoning (and gender prejudice) is seen in the fact that the sex buyers are almost exclusively male. The case for the legalisation of prostituting persons seems to focus pointedly on the law surrounding ‘sex acts supply’ (mostly female). By confusing the victimised persons right to health and justice, with the demand sides proclivities for paid for sex acts. We do not arrive at a valid justification for the legalisation of the industry. This is why, I believe, some countries like France and others are criminalising the demand side of the industry in a clawback effort to rectify the mistake.

It is also unclear how a labour law framework, which respects privacy, will impact on public health. For example, the problem of STD infection is unchanged under the legalisation model, because the right to privacy protects employees from disclosing their status. It is hard to see how regular check-ups will change the high risk associated with multiple partner sexual exposure. This given, only the supply side is being encouraged to act ethically. It seems intuitive to suggest that full decriminalisation will result in increasing the numbers of persons being prostituted. This may exponentially impact public health rights, given the high probability of a dramatic increase in new cases of STI’s and STD’s.

A more moderate liberal position would need to recognise the necessary limits on sexual freedoms is warranted, with particular reference to the exploitation of women and the impact on the public interests more broadly. However, liberals in South Africa seem to dismiss out of hand prohibition talk, for fear of being perceived as unreasonably moral. The sex industry, on the other hand, has no shortage of funds to push this agenda forward. It is much like the days of big tobacco pushing a counter-narrative for the sake of profit, or sugar barons clouding the truth in the days of Wilberforce and the slave trade.

What about Health Concerns?

The World Health Organisation definition of health defines health as:

“A state of complete physical, mental and social well-being.”

On reading this definition I believe decriminalisation activists would be hard pressed to provide evidence in support of prostituted persons ever moving toward attaining ‘health’ as defined above. Nonetheless, the rights allegedly undermined by prohibition law are:

• the right to health care
• the right to due process in law enforcement

Both of these warrant attention of course. Still, as I have pointed out above, we should be mindful that we do not smuggle in the dehumanisation of people under the guise of public health. If a slave owner physically beats his ‘consenting’ slaves; it would be unjust to normalise the behaviour in law and then hand out boxing gloves to minimise the physical harm of the beatings. Or even worse, telling the slave to negotiate glove use. Some would then argue from a limited sample, that the boxing analogy, does not reflect the lived experience of many in the sex industry. As a witness to the court, such testimony would be difficult to assess given the vested interest. But for the sake of argument, it is the case that the vast majority of prostituted persons, do not enjoy this privileged position.

The law cannot reasonably accommodate everyone and hence must look to protect the most vulnerable. Battered women’s advocates are alive to a multi-disciplinary approach in dealing with gender violence cases. Much can be learned from this legal and social context (applicable to prostituted people interventions). South African Anti-Human Trafficking law has provided valuable language to define the abuse of vulnerability and the need for exiting to places of rehabilitation and restoration. What this shows is that given sufficient political will, change is possible. However, if the ANC is successful in its bid to drive the ‘sex work’ agenda through (using a two-thirds majority to rewrite the constitution if necessary). I believe South Africa and Africa will be the worse for it as we will then witness the consequences of normalising this dehumanising trade. As William Wilberforce put it, “You may choose to look the other way but you can never say again that you did not know.”

The post Perspectives on Prostitution appeared first on Pinion Project.

By Dieter Lubbe

Responding to any “news” report is a risky business at the best of times. One can never really be sure what was actually said. But for the sake of argument in this article, I’m going to accept that Javu Baloyi’s comments are in harmony with the Commission for Gender Equality’s published work (dubious as this work appeared to be given a very limited sample of research data) on the subject and that he is being well represented by the News 24 reporter [1].

The article’s title, ‘Sex workers’ rights group ‘cautious’ over ANC’s decriminalisation decision’, seems benign at first blush. Yet the substance of the article is more akin to a pro-prostitution ideology advert than a news article. Why the pro-prostitution view is exclusively being punted in this article, speaks volumes about most of the media in South Africa. For example, when considering the ANC policy position. How on earth do you opt for a pro-prostitution activist’s opinions instead of the authority of the South African Law Reform Commission’s Report on Adult Prostitution (SALRC Report) [2]? This is particularly relevant because the Commission for Gender Equality’s work should be in harmony with the SALRC Report if the ANC policy has been informed by the facts. Whatever the case, it seems as though the Sex Workers Education and Advocacy Taskforce (Sweat) is the only goto authority on this matter, even if they are being funded to promote and frame the agenda. It is in this lopsided frame that Javu Baloyi’s ‘comments’ become part of an ad hoc ‘justification’ for Sweat’s view.

‘That with decriminalisation, sex workers would operate in a safer space without being arrested or victimised and harassed by police. Sex workers would also be able to better access health facilities, social workers and doctors.’  The article claims.

This statement incorrectly presupposes firstly, that ‘stigma’ fueled by the legal prohibition on prostitution is currently limiting people’s access to health services and secondly, that unethical behavior by law enforcement is somehow empowered by the fact that prostitution is illegal. The SALRC Report provides valuable insight into this debate, with the addition of having taken the time to consider public submissions. For the sake of brevity, I will highlight some important arguments. The SALRC Report confronts the misinformation by observing that, ‘reforms in law have not been found to erase stigma’. Indeed, they make women more vulnerable as they must sacrifice anonymity to be recognised as legal prostitutes by the state. The SALRC Report points out that the ‘fundamental rights to freedom and security are no better for a prostitute working in a brothel compared to a woman who works alone –routine abuse and violence form part of the prostitution experience’; SALRC Report notes on page xxii,

‘Changing the legislative framework could create an extremely dangerous cultural shift juxtaposed against the high numbers of sexual crimes already committed against women. Women would be considered even more expendable than at present. Furthermore, the Commission believes that legalising prostitution would increase the demand, locally and internationally, for more prostituted persons, and would foster a culture that normalises prostitution and sexual coercion. The Commission believes that due to the systemic inequality between men and women in South Africa, any form of legalisation will not magically address the power imbalance between the buyer and the prostitute, or the demand by buyers for unsafe or high-risk sex (para 2.496)’.

This inconvenient evidence seems lost on Baloyi. The SALRC report affirms that prostitution does not fit comfortably into the international definition of decent work. I understand from the SALRC Report, that in S v Jordan – ‘the Constitutional Court found that criminalising prostitution is constitutional. SOA 1957 does not unfairly discriminate against women; nor infringe upon the right to privacy, freedom and security and the right to economic activity.’

Hence, the warrant for state assistance and intervention should really be grounded on the understanding that prostitution is demeaning of persons (not just business as usual as Sweat is suggesting). Furthermore, groups like Sweat are effectively blocking the momentum for government to look into helping those trapped in prostitution. After decriminalisation, as evidenced by the Netherlands, Germany and New Zealand, prostitution is framed as a regular job, the impetus to provide any existing service disappears. That is to say, the ‘departure from the occupation’, as the SWEAT submission calls it on page 189 of the SALRC Report, does not warrant additional state involvement which would otherwise be justified under a criminal justice response (as is the case in parts of the USA)

Julie Bindel in her book, The Pimping of Prostitution: Abolishing the Sex Work Myth, argues that even if deregulation allowed women more control of client interactions (which is moot) regarding insisting on condom use, the doubling of the number of prostituted women under deregulation is likely to lead to more STI’s, not less (many STI’s cannot be prevented by condoms). The public health implications are overwhelming. Yet Baloyi argued that the decriminalisation of sex work represented a chance for the rehabilitation of those sex workers who took on the job involuntarily, such as young people who used sex work to escape being married off or domestic violence. Again this assumes a level of agency that simply does not exist among the battered and abused.

Then Javu Baloy seems to dismiss over half of South Africans from the debate by pre-supposing that all religious persons in South Africa are biased at best or rather delusional. He reportedly ‘appealed to South African churches to not make this a religious matter, as it was a matter of principle’. ‘They shouldn’t discriminate. South Africa is a constitutional democracy, not a religious state.’ Javu Baloy said.

Baloy seems to be under the impression that only some South Africans have rights, and that the religious community is not included. This, however, is a grotesque reduction of the values and rights recognized in the South African Constitution. Dismissing the arguments, because of where they come from, is a mistake in reason.

“It is clear that our constitutional framework ‘does not only permit, but requires the Legislature to enact laws which foster morality, but that morality must be one which is founded on our constitutional values” Jordan v the State, Constitutional Court.

The South African Constitutional court has argued that the prostitute is wronged precisely because the prostituted person is treated in a way at odds with his/her genuine personal dignity by the sex buyer. Abolitionists the world over have also argued that the commodification of women’s bodies in the sex industry will negatively impact the public interests of all women. As other countries in the world, with strong economies, watertight borders and an operative rule of law, claw back from failed attempts at prostitution legalisation, the ANC is really not in a position to experiment with the lives of the vulnerable in South Africa.

If South Africans are serious about eliminating violence against women and children, we must do our best to consider all the evidence.

[1] Nation Nyoka, Sex workers’ rights group ‘cautious’ over ANC’s decriminalisation decision, 12/2017 https://m.news24.com/SouthAfrica/News/sex-workers-rights-group-cautious-over-ancs-decriminalisation-decision-20171221

[2] http://www.justice.gov.za/salrc/reports/r-pr107-SXO-AdultProstitution-2017-Sum.pdf

The post Mistaken Framing of the Prostitution Debate appeared first on Pinion Project.

By Dieter Lubbe

In the global fight against all forms of discrimination against women and children. The cloud of vested interests clinging to the commodification of women and children allows few surprises. LRC Report is a refreshing exception in its efforts to stand in harmony with the evidence. It does this by championing, not only a particularly marginalized group of women but all women. That is, if it is deemed normal to commodify some women then it will affect all women. The many harmful aspects of society which currently impact women, come into sharp focus when we examine public belief associated with prostitution. The LRC Report sets out by framing the debate with an affirmation of the United Nations Convention on the Elimination of all Forms of Discrimination Against Women [1]. This because the vast majority of people trapped in prostitution are women. Still, this much is uncontroversial even if it is important to affirm. The next premise sets the tone of the report by cutting across the stream of well-worn platitudes, those ideas that accede to the sale of sex as – legitimate work. The LRC Report found prostitution does not fit comfortably into the international definition of ―decent work. This grounding is alive to the fact that not everybody can be reasonably accommodated by any law. But that the law should protect the most vulnerable among us (avoiding the apex fallacy). Typically, advocates of the sale of sex as – legitimate work suggest some women have sufficient agency,’ It is a mistake here to evaluate a group on the performance of the best members in the group (with the highest levels of agency), not a representative sample. Furthermore, the report takes note of the criminal context of prostitution which exposes the mistaken belief that assumes all sex businesses are enthusiastic to enter into the formal economy and/or in promoting dignity at work. This is simply not the case the LRC report points out.

The South African Constitution Chapter 2: (3) “The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including…gender, sex, …” The LRC Report makes it clear our constitutional framework ‘does not only permit, but requires the Legislature to enact laws which foster morality, but that morality must be one founded on our constitutional values Jordan v the State supra para’[2]. This constitutional commitment stands, as a legal touchstone in the evaluation and direction of our response to the subject of the prostitution of women. In Chapter Two of the Constitution, it is clear that all people in South Africa are recognized to have value, human dignity, and freedom. Freedom intern cannot be deprived arbitrarily or without just cause. With this said, the report argues the prostitute is wronged precisely because the prostituted person is treated in a way at odds with his/her genuine personal dignity by the ‘sex buyers’. I believe South Africa among others, shares a shameful past in that government failed to affirm/protect/nurture all its citizens – dignity. I understand from the SALRC Report, that in S v Jordan – the Constitutional Court found that criminalizing prostitution is constitutional. ‘SOA 1957 does not unfairly discriminate against women; nor infringe upon the right to privacy, freedom and security and the right to economic activity’.

It is in this context, a mistake to argue from the reason of John Stuart Mill, for example, that choice can be disconnected from what is chosen. The demand side of prostitution, on Mill’s view, is clearly – inconsistent with respect to the rights and freedoms of women. This is grounded in the notion that the commodification of body parts devalues the respect that the SA Constitution regards as inherent in the human body. LRC Report points to the context of ‘systemic inequality’ between men and women which I suggest is particularly evident in the demand for sex acts for sale. This context, therefore, cannot be disconnected from this debate in the name of choice.

With this said the LRC Report, ‘is of the view that exploitation, particularly of women in prostitution, seems inherent in prostitution and depends on the external factors of gender violence, inequality and poverty and is not caused by the legislative framework in which it finds itself’. The sustainable change will occur when we address the ‘external factors’ moving away from a harm reduction model.

[1] UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) to take all legal and other measures necessary to provide women with effective protection against gender-based violence and to protect women against all kinds of violence (para 2.501).

[2] South African Law Reform Commission Report, Project 107. Sexual Offences: Adult Prostitution Pg. 5

The post A Watershed Moment – for Women and Girls appeared first on Pinion Project.