They say sex sells. And we know that selling sex pays. And then there is the dirty little secret that a minority of women chooses to sell sex.
They are not coerced, exploited or forced into that choice any more than other occupational choices may be informed by a person’s material need, education level, circumstances, opportunities and obstacles.
These women are not the objects of the Constitutional Court’s paternalistic and patronising view that “[t]he very character of the work they undertake devalues the respect that the Constitution regards as inherent in the human body”. The self-respect and decisiveness of these women about what they do with their bodies should not be in any doubt.
Let me put my disclaimers up front: I am not talking here about a whole lot of related and important issues. I am not talking about the plight of trafficked, exploited or vulnerable women whose abusers should be subject to the full extent of the law’s censure and who should receive every effort aimed at their rescue and rehabilitation. I am not talking about the debate around the legalisation of prostitution or the criminalisation of being a “John”. I am not condoning the sex-saturation of the popular media. And I am not engaging with the religious and moral condemnation of all of that.
I am talking about a notional group of empowered women who make a choice, albeit after navigating the recognised thicket of false consciousness and false consent, and their internalisation of the patriarchy. In sum, I’d like to try to talk about a highly nuanced and complex concept of sex workers that recognises that not all women engaged in transactional sex work fall within the victim category.
I want to do this because all sex workers are lumped together by the law because of the illegality of their work. This leaves no room to consider what it might mean for women to actually choose sex work over other vocational alternatives and the limitations in the law’s blindness to these women’s autonomy and agency.
Is the recent decision of the Labour Appeal Court (LAC) in the Kylie case (which extended the jurisdiction of the Commission for Conciliation, Mediation and Arbitration to a dispute between a sex worker and her employer) the first step to the recognition of a personal choice to be a sex worker? Or would the court still have come to Kylie’s assistance had she not been “particularly vulnerable and — exposed to exploitation and vicious abuse”?
The reasoning in the judgment, simplified, is that once a sex worker’s constitutional right to dignity is recognised (as it has already been by the Constitutional Court), then the companion right of equality must follow, and this enables the extension of labour rights to sex workers. But the axis on which the particular decision pivots is that “[i]n the circumstances, where a sex worker forms part of a vulnerable class by the nature of the work that she performs and the position that she holds and she is subject to potential exploitation, abuse and assaults on her dignity, there is, on the basis of the finding in this judgment, no principled reason by which she should not be entitled to some constitutional protection designed to protect her dignity and which protection, by extension, has now been operationalised in the [Labour Relations Act]”.
But what if Kylie was one of the sex workers of Sandton who charge R15 000 a night and was not in need of “protection which can reduce her vulnerability, exploitation and the erosion of her dignity”? Does the court’s reliance on “broad-based constitutional protection” to accord labour rights reveal the limitations of this approach?
In other words, is it necessary to conceive of the litigant as a victim to come to her aid? What if Kylie were instead conceived of as a “subject” falling within the scope of the Constitution’s provisions that accord rights to “everyone”, rather than a “vulnerable person” whose circumstances require her rescue?
The judgment treats Kylie’s position as analogous to that of a criminal who, although convicted of a crime, still enjoys dignity and certain other constitutional rights. The illegality of her acts only limits the remedies and redress available to her by, for example, making reinstatement unavailable.
Of course, a court is confined to the facts and circumstances of the parties before it, and the evidence was clear that Kylie was exploited and abused. But unlike a criminal, Kylie’s vulnerability is emphasised in the court’s reasoning.
The LAC does explicitly note the sex-positive feminist position in its judgment, acknowledging “that sex work can be a positive experience for women who employ [their] autonomy to make an informed decision to engage in prostitution”, but the court did not need to engage with this problematic category of women any further. Would such a woman have succeeded in obtaining legal recognition of her rights, since she falls outside of the sex-worker-as-victim paradigm?
Real-life examples abound, demonstrating that our own attitudes to sex workers are not as uniform and monolithic in practice as in academic debate. Consider the vicarious enjoyment by his male fan base of Tiger Woods’s philandering with “a certain type of woman”, the celebrity of Ashley Dupré and Heidi Fleiss, the tabloid delight for Max Mosley’s predilections or Silvio Berlusconi’s parties, and South Africa’s demonstrated affection for Lolly Jackson and Gigi.
There is a certain hypocrisy in our refusal to recognise sex as power or a commodity with a price like any other and accord respect to the choice of women to sell it, and yet at the same time continue as a society to value women primarily on their physical appearance and sexual availability.
This silencing and objectification of South African women, particularly given the horrific prevalence of rape in our society, must be replaced by nuanced attitudes that accord meaningful dignity and respect to the interrogated choices they may make, however much we may otherwise disapprove of them.
That would be true dignity and equality, and real respect for Kylie. And a start for the rest of us.
Michelle le Roux is a member of the Johannesburg and New York Bars, and co-author of Precedent & Possibility: the (ab)use of law in South Africa