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

In this article, we are going to take an introductory look at child marriage in South Africa. The idea is to orientate ourselves with a few key ideas regarding the law and the number of children involved. We will also show that consent is not an isolated action that is independent of the larger context(and its complexities).

The South African Context of the Debate

By way of background information, Section 28(3) of the South African Constitution defines a child as a person under the age of 18 years. Most of the provisions in the South African (SA) sexual offences law keep within this definition of ‘child’. It is important to note, however, that in the case of statutory rape or statutory sexual assault, the crime can only be perpetrated against a child 12 years and older and younger than 16 years of age. Furthermore, the minimum legal age for marriage is 18 years for boys and 15 years for girls in SA. Subsection 12(2) of the Children’s Act protects children from being forced into marriage, ‘A child …. may not be given out in marriage or engagement without his or her consent.’ The SA Constitution recognises ‘marriage’ observances concluded under any system – as long as those observances follow rules made by the appropriate public authorities. The Minister of Home Affairs can grant an exception to the ‘15 years old’ minimum age for girls with a written permission. The Minister may also ‘authorise any officer in the public service to give written permission on his behalf’ to permit the marriage of a girl as young as 12 years old (See Ilizna Esterhuyse’s helpful summary here). The consent of child and parents or guardian is critical to this process. In cases of human trafficking (forced marriage), the Prevention and Combating of Trafficking in Persons Act 7 of 2013 points out that, consent of the child is a necessary prerequisite that makes a child marriage legal. Section 36 of the Bill of Rights points out that the rights, referred to in the Bill of Rights, may be limited only in terms of the law of general application to the extent that such limitations are ‘…reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom…’ The rights of children are restricted in this sense when it comes, for example, to alcohol, driving a car and marriage. In simplistic terms, Section 36 is justified because of the ‘relevant immaturity’ of a child. It is also an effort to support and assist what is necessary for the positive growth and development of children.

Prof Deirdre Byrne noted some time ago that, ‘Although the South African stats are lower compared to the rest of Africa, which represents 125 million of the 700 million world-wide child-brides (or 17 percent), the fact that child brides are a reality in South Africa, a country with one of the world’s best constitutions, is frightening.’ Indeed, it was Prof Deirdre Byrne that highlighted The Community Survey 2016 results released by Statistics SA, that ‘…more than 91000 girls in South Africa between the ages of 12 and 17 are married, divorced, separated, widowed, or living with a partner as husband and wife, with the latter forming the majority of the group’. This alleged ‘majority’ of children ‘living with a person as if married’ seems to me to be highly problematic. The room for abuse, human trafficking or even statutory rape is something that cannot be resolved with mere anecdotal assurances from parliament like, for example, that customary procedures have been followed.

Non-Harmful Cultural Practice

With this said, in the insightful article, Contextualizing the practice of Ukuthwala within South Africa By Marcel van der Watt and Michelle Ovens, a distinction is made between the ‘Ukuthwala’ in its traditional form and the harmful and somewhat distorted practice currently taking place in South African society.’ ‘Ukuthwala’, for those new to this subject, is the cultural practice of Xhosa marriage custom. It involves the ‘pretend abduction’ of the bride-to-be (12 years old in some cases) as part of the negotiation between the two families. What Van der Watt and Ovens explore, is the different expressions or practices of Ukuthwala with respect to the compatibility of such customs with the SA constitutional provision for customary law Section 29(3) of the Bill of Rights. Van der Watt and Ovens charitably imagine a practice of Ukuthwala that could possibly be constitutional, in contrast to what is actually the case in South Africa, more often than not. Van der Watt and Ovens suggest that the ‘non-harmful’ cultural practice cannot be outlawed on grounds of the SA constitution. The criteria for this, ‘ non-harmful’ relationship, as they imagine it, is based on considerations of the role players’ consent and willingness. It seems at least cogent to argue, as Van der Watt and Ovens do, that adults may be given such concessions in law, if such a thing as a “non-harmful” cultural practice exists. Yet, when it comes to children under 18, the growing consensus is that it should be illegal.

Missing Consent

Consent and willingness, as it applies to the child, is not always straightforward. Still, what Van der Watt and Ovens call ‘a distorted practice’ certainly applies to cases where the child did not give consent. For example, the Court held in Nvumeleni Jezile v. The State, the Appellant could not rely on the traditional practice of Ukuthwala to justify his criminal conduct and was duly found guilty of human trafficking.

‘Private’ Acts and Consent

With the challenge of poverty in mind, I cannot help but think at this point of SA Criminal Law Section 17, which leaves no doubt that any child involved in ‘transactional sex’ is being sexually exploited, irrespective of consent. It is therefore not a private matter between consenting persons. 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.’ Following this reasoning, the commercial nature of prostitution removed it from the inner sanctum of privacy. Furthermore, in the Teddy Bear Clinic for Abused Children and Another v Minister of Justice judgement, the court took note of the ‘age gap’ between the participants in sexual conduct, precisely because of the potential for undue influence of the older person over the younger child. Yet, in the case of child marriages, the power imbalance between adults and children rests on a government official’s judgment of what is legal ‘culture’ in terms of the marriage act. The potential for children being unduly influenced seems to be very relevant in the case of child brides, given both the age of the child and the quasi-commercial nature of the proceedings. Even if this sense of the quasi-commercial nature could be overlooked somehow, in Section 15 of the Sexual Offences Act we see that ‘a person who commits an act of sexual penetration with a child who is 12 years of age or older but under the age of 16 years is, despite the consent to the commission of such an act, is guilty of the offense of having committed an act of nonconsensual sexual penetration with a child.’ It is then difficult to see how a child’s consent is sufficient in child marriage law.

The Demand for Child Prostitution

The demand for child prostitution (transactional sex), which is known as the ‘new’ sugar daddy or so-called ‘blessers’ behavior, is hard to overlook. Again, for those new to the subject, in SA ‘blessers’ buy sex from children via gifts etc. The economic vulnerability of girls cannot, we believe, be used as justification for preserving the status quo in cases of transactional sex or child brides. The same drivers that lead young women towards having sexual relationships – many of which are transactional in nature – with men much older than they are, is an abuse of human dignity The body of the child is ultimately being used for merely instrumental purposes. It is also of great concern that this trend in transactional sex exposes girls to a multitude of health issues. Also, it exposes their vulnerability to being coerced into accepting the dangerous social narrative that sexual abuse is legitimate work (blessing).

The Families Consent

Cultural adaptation and urbanisation are likewise challenges to consider in the light of globalization. The idea, that all communities in question are ‘positive agents’ in such negotiations, seems problematic. Furthermore, one might for example think of how many children have lost both parents and hence may be very vulnerable. A Situation Analysis of Children in South Africa April 2009 estimated, ‘…a total number of children with one or both dead parents in 2006 was almost 3.8 million, or 21% of the child population. While the majority are, in all likelihood, receiving the support of a surviving parent, grandparent or other family member, the impact on families and communities that care for such a huge number of orphans should not be underestimated’. The best interest of the child cannot be decided and based on the mere cost benefit to these families.

In conclusion, we would do well to note that The African Charter on the Rights and Welfare of the Child echoes this sentiment in, Article 21: ‘Governments should do what they can to stop harmful social and cultural practices, such as child marriage, that affect the welfare and dignity of children’. In the Context of Africa, UNICEF found in a study in 2015, ‘…that more than one in three of these African women and girls (over 40 million) entered into marriage or union before age 15. If current trends continue, almost half of the world’s child brides in 2050 will be African.’ We believe that SA, as a gateway nation to Africa, should take the lead in putting our children first by criminalising this behaviour.

The post Child Marriage in South Africa 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

‘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

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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/

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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

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