Prostitution poses difficult questions. On its own it is hardly the most pressing form of crime confronting the country. But crime authorities are correct to point to its extensions into child prostitution and drug dealing that constitute a clear reason for the need for vigilant control. But is the criminal law the best means to deal with the world’s oldest profession?
To an extent this problem vexed the Constitutional Court in its recent decision in State v Jordan in which the constitutionality of sections of the Sexual Offences Act that criminalise the provision of sex for reward and brothel-keeping were considered. The members of the court all agreed that the prohibition of brothels was constitutional. The dispute within the court turned on the manner in which the provision of sex for reward is criminalised.
The minority, for whom Justices Catherine O’Regan and Albie Sachs wrote the judgement, found that as the Sexual Offences Act only made criminal the act of the prostitute and not the client, it offended the constitutional guarantee of equality.
As the two justices wrote: “To the extent that prostitutes are directly criminally liable … while customers, if liable at all, are only indirectly criminally liable as accomplices or co-conspirators, the harmful social prejudices against women are reflected and reinforced.” The minority thus held that a provision of the Act that makes the women a criminal, but does little to ensure some equivalence between the two parties constitutes an unfair form of discrimination.
Writing for the majority, Justice Sandile Ngcobo found that this section does not amount to unfair discrimination. He held that as “the prostitute is engaged in the business of commercial sex, one of the ways of curbing commercial sex is to strike at the merchant by means of criminal sanction. The differentiation between dealer and customer is a common distinction that is made in a number of statutes.”
The conclusion reached by the majority may never stand accused of being an imaginative exposition of the law on equality. The unwillingness of the majority to go beyond the strictures of legal formalism and engage with the unfairness of the prostitute being solely labelled a criminal as opposed to the client smacks of a wrong moral choice. But in a belated attempt to suggest that the client does not necessarily get away from the criminal law, the judges invoke the provisions of a discredited apartheid statute, the Riotous Assemblies Act, to show the neutrality of the law. The affected sex workers are entitled to ask if this is the best illustration of conceptual transformation by the Bench!
While the minority judgement is clearly the more sensitive to the demands of constitutional equality, it is also guilty of unfortunate moralising. For example, in dealing with the argument that a prostitute’s constitutional right to dignity is offended by the Sexual Offences Act, the minority write thus: “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. Even though we accept that prostitutes may have few alternatives to prostitution, the dignity of prostitutes is diminished … by their engaging in commercial sex work.”
Well, they will be singing hallelujah in all religious services when they read this passage. It is inexplicable how in one sentence it can be acknowledged how little choice many sex workers may well have in life and yet foist all the blame on them for their loss of dignity caused by a discriminatory, sexist piece of legislation.
The problem with the judgement in Jordan’s case is not necessarily in the result. After all, the problems of prostitution may well be best left to Parliament to resolve. But the two judgements delivered by the court reflect a social conservatism, a deep-seated religiously moralistic view of the world, which is hardly in keeping with the society envisaged in our Constitution. This was the first case when the social attitudes of the court were tested. Is it too harsh to claim that the more things change in this country, the more others stay the same? It is time that we placed the most powerful court under critical scrutiny.