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 — Pinion Project

The question

How much pornography can my child watch? This question looks like shameless sensationalism at first blush! For my part, I wish it was mere clickbait fiction. Others reading the question may be triggered by outrage, ‘What sort of parent or guardian, would allow a child to watch porn!’ Indeed, the question looks not only disconnected from South African law, it seems alarmingly void of common sense. Still, the question keeps popping up on social media platforms in one form or another and hence warrants both some legal and ethical consideration.

Context of the question

The public interest in these types of questions may well have been stimulated in part by modern findings in neuroscience. I’m told the Carte Blanche [1] television segments which looked at digital addiction, drew considerable interest. Revelations regarding the impact of excessive ‘screen time’, ‘task switching’ and the behavior-altering nature of supernormal stimuli (in media entertainment) on the human brain, are increasingly commonplace in the global conversation. In short, the presentation by Brad Huddleston — Author of Digital Cocaine, showed how the physical brain damage associated with digital addiction is comparable with that of cocaine addiction. For most of us, this is enough evidence to drive the point home — endless media consumption is not without consequences. As a result of this data, many parents and educators are desperately attempting to put systems in place to limit learners’ screen time and council those negatively affected by media overload. In this context, the reported increase in self-harm and pornography addiction among our youth presents deeper ethical and legal challenges. Understanding this destructive behavior and responding to it, will take a multidisciplinary approach to be sure. Still, in this article, I will be focusing on the porn question from a legal perspective.

Structural reforms, like keeping cell phones out of our children’s bedrooms at night for the sake of both accountability and reduced screen time, is one way of ensuring harm reduction and better sleep. But this will not curb the cultivated appetites of youth submerged in a highly sexualized culture. Professor Rosalind Gill, professor of social and cultural analysis, Kings College London, put it like this,

‘…something has changed to make culture more ‘pornified’ or ‘sexualised’, but there are disagreements about what has changed, why it has changed and how shifts should be understood.’ [2]

As I write these words, I can already see in my mind’s eye, some readers pursing their lips, ‘O please’ I hear them say, ‘not another diatribe on moral bankruptcy!’ Well, as I said at the beginning of this article, both legal and ethical considerations must be noted, so bear with me. Professor Donald Hilton puts it very succinctly,

‘…pornography is a biologically addictive medium that alters brain reward and motivation systems in a negative way.’ [3]

The Law

Can parents and caregivers, measure out a ‘porn timetable’ for children? In the Children’s Act, 2005, child abuse is defined as ‘…any form of harm or ill-treatment deliberately inflicted on a child, and includes… exposing or subjecting a child to behavior that may harm the child psychologically or emotionally.’ [4] In the Criminal Law (Sexual Offences and Related Matters) Amendment (Act No 32, 2007) Section 19, it makes it clear that,

‘Exposure or display of or causing exposure or display… of pornography to children’ is an offence against the child…(c) any image, publication, depiction, description or sequence containing a visual presentation, description or representation of pornography or an act of an explicit sexual nature of a person 18 years or older, which may be disturbing or harmful to, or age-inappropriate, for children, as contemplated in the Films and Publications Act, 1996, or in terms of any other law, to a child (‘‘B’’), with or without the consent of B, is guilty of the offence of exposing or displaying or causing the exposure or display of child pornography or pornography to a child.’[5]

As Ryan Smit from Cause for Justice put it, ‘falling foul of the Children’s Act, expose parents to the possibility of having their children removed from their care (so it is pretty serious)’. [6] The Film and Publication Board (FPB) look at it this way in the — Report on Internet usage and the Exposure of Pornography to Learners in South African Schools (Research Report, November 2006).

‘The sexual abuse of children occurs in various forms, which may differ in type and intensity but not in its effects on children. Exposing children to sexually-explicit materials is one form of child sexual abuse, more appropriately described as the non-contact abuse of children and may, in certain circumstances, 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.’ p.8

Also, consider the constitutional view on adult prostitution (applicable here to the prostitute actors) when reflecting on the message porn is sending to our youth. Professor Rassie Malherbe put it this way in regard to the South African constitution. ‘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…’ [7] In the context of gender inequality, violence against women and sexually transmitted disease, it is hard to believe that anyone would be comfortable with children watching porn. Porn, for the most part, depicts unprotected, high-risk behavior. [8] It seems from research that if ‘abuse’ is touted as normal, then the people being abused are less likely to report the abuse. This is particularly evident in cases of ‘sexual grooming’

‘Young women (aged between 15 and 24 years) have the highest HIV incidence of any age or sex cohort, at 2.01% in 2015. Young women in their early 20s have a four-fold burden compared to their male peers, with approximately 2 000 new HIV infections occurring weekly, or 100 000 of the 270 000 new infections a year, and 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’. – p 7 South Africa’s National Strategic Plan for HIV, TB and STIs 2017-2022

The euphemistic ‘transactional in nature’ points directly to juvenile entry into prostitution. It seems intuitive I suggest, that those young people may incorrectly assume – if sex acts for sale are acceptable for some then it should be acceptable for all. Using words like ‘working in the porn industry as an actor’ creates the expectation of automatic labour rights and children from age 15 may enter the labour market. This as I have pointed out above, is disconnected from the dignity commitment enshrined in the South African Constitution and is a contributing factor to the current public health crisis among youth in particular.

Conclusion

In conclusion, no child should be watching porn. Parents and caregivers are responsible to stop them if they are. In cases of children addicted to porn, please reach out and get help by contacting Clive Human at – Standing Together to Oppose Pornography (STOP), email: stop@stop.org.za for more information. If you know of adults who are intentionally showing porn to children, you are obligated by law to report them. Reporting neglect in this regard is a legal obligation in terms of section 110 of the Children’s Act [9].

End Notes

[1] Carte Blanche explores digital addiction and in this interview with Dr. Craig Blewett, he discusses how by refocusing how we use technology in the classroom we could harness our children’s obsession with technology for good. https://youtu.be/DiLpbjMWjb8

[2] Premature sexualisation: understanding the risks, NSPCC (2011) https://www.nspcc.org.uk/globalassets/documents/information-service/seminars-premature-sexualisation-understanding-risks.pdf

[3] Donald L. Hilton, Jr., MD, FAANS, Adjunct Associate Professor, Department of Neurosurgery, University of Texas Health Sciences Center at San Antonio, Pornography and the Brain Public Health Considerations, Speech given at a Congressional Symposium on July 14, 2015, hosted by the National Center on Sexual Exploitation.

[4] No. 38 of 2005: Children’s Act, 2005.

“Abuse”, in relation to a child, means any form of harm or ill-treatment deliberately inflicted on a child, and includes-

(a) assaulting a child or inflicting any other form of deliberate injury to a child;

(b) sexually abusing a child or allowing a child to be sexually abused;

(c) bullying by another child;

(d) a labour practice that exploits a child; or

(e) exposing or subjecting a child to behavior that may harm the child psychologically or emotionally;

[4] Report On Internet Usage And The Exposure Of Pornography To Learners In South African Schools, November 2006, p.8

[5] Criminal Law (Sexual Offences and Related Matters) Amendment (Act No 32, 2007)

Section 19, Exposure or display of or causing exposure or display of child pornography or pornography to children: (19) A person (‘‘A’’) who unlawfully and intentionally exposes or displays or causes the exposure or display of—

(a) any image, publication, depiction, description or sequence of child pornography or pornography;

(b) any image, publication, depiction, description or sequence containing a visual presentation, description or representation of a sexual nature of a child, which may be disturbing or harmful to, or age-inappropriate for children, as contemplated in the Films and Publications Act,1996(Act No.65 of 1996), or in terms of any other legislation; or

(c) any image, publication, depiction, description or sequence containing a visual presentation, description or representation of pornography or an act of an explicit sexual nature of a person 18 years or older, which may be disturbing or harmful to, or age-inappropriate, for children, as contemplated in the Films and Publications Act, 1996, or in terms of any other law, to a child (‘‘B’’), with or without the consent of B, is guilty of the offence of exposing or displaying or causing the exposure or display of child pornography or pornography to a child.

[6] Ryan Smit from Cause for Justice, Personal Correspondence.

[7] Erasmus (Rassie) F J Malherbe. Position: Professor of Public Law, Faculty of Law, and former Head of the Department of Public Law. Employer: University of Johannesburg, South Africa, personal Correspondence.

[8] Pornography and Sexual Abuse of Women, Mimi H. Silbert 2 Delancey Street Foundation, Ayala M. Pines University of California, Berkeley

[9] The Children’s Act and the Sexual Offences Act both establish mandatory reporting obligations to report abuse. Failure to report is a criminal offence, but more importantly, it could leave a child at risk without support and services. Different obligations apply, to whom and what must be reported, and how to go about reporting abuse and neglect. http://www.dgmt-community.co.za/organisations/childrens-institute/learning-briefs/reporting-child-abuse-and-neglect-what-you-need

Also Read:

The Wall Street Journal, Rabbi Boteach collaborated with actress Pamela Anderson (“Take the Pledge: No More Indulging Porn”) to warn about the addictive dangers of porn. https://www.wsj.com/articles/take-the-pledge-no-more-indulging-porn-1472684658

For help go to https://fightthenewdrug.org/get-help/

The post Questions Relating to Porn & Children 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.