Substantive Gender Equality, Sex Work and the Assumptions of S v Jordan
In 2002 the Constitutional Court was asked to pronounce on the constitutionality of legislation that criminalised sex work 1 and its associated crimes. The case was S v Jordan2 and, in brief, the facts can be summarised as follows:
Three Appellants had been convicted in a lower court in terms of certain offences under the Sexual Offences Act 23 of 1957. Their arrest was as a result of a police raid at a brothel. The brothel owner, an employee, as well as a sex worker were charged with having contravened the provisions of the Sexual Offences Act. During the hearing in the Constitutional Court, argument was presented by the Appellants that the provisions violated their rights to equality, privacy, human dignity, economic activity to pursue a livelihood, as well as freedom and security of person.
In light of the Legal Resources Centre’s (LRC) work done on equality and non-discrimination, this paper seeks to critically assess the Jordan judgment from the perspective of substantive equality and how, based on a number of discriminatory assumptions and assertions about women, sex and women’s right to decide what they do with their bodies, it led the Constitutional Court to fail in advancing substantive gender equality for women.
1. Criminalising sex
The Sexual Offences Act had its origin in the Immorality Act 5 of 1927. The Immorality Act was introduced at a time when the virtue of European women had to be defended from the virility of the black man. As a result, carnal intercourse between European women and black men were criminalised; even in instances of consensual sexual intercourse. This legislation falls squarely within the parameters of legislation geared towards deciding for a woman what she can and cannot do with her body, and vested control of her sexuality in the hands of white men.
The Sexual Offences Act that Jordan dealt with, and that we still have today, is therefore premised on very real perceptions of immorality; and sexual immorality more specifically. Since the enactment of immorality legislation and up until today, the State has made a conscious decision to police sex from a conservative moral perspective.
A further clear example of the moral premise on which the legislation rests can be found in the definition of ‘unlawful carnal intercourse’ in section 1 of the Act:
‘carnal intercourse otherwise than between husband and wife’
Additionally, section 20(1)(aA) of the Act provides that:
‘Any person who – has unlawful carnal intercourse, or commits an act of indecency (undefined), with any other person for reward – shall be guilty of an offence.’
The implications of these sections are that, as long as parties are married to each other, whatever is negotiated between them would be considered legal. Perhaps this is a further reference to men’s ability to make demands and exercise control over their wives without fear of committing any offence. Only once the agreed to and negotiated acts fall outside the institution of a sacred marriage, would a crime be committed. This the value system to which the Act clings and which the Jordan judgment reinforces.
Once we have established how morally wrong sex outside of marriage is, and that asking for a reward is a further moral blight, the rational conclusion would be that if you derive benefit from sex work, or if you facilitate through running a brothel wherein sex work takes place, you must surely be immoral and subject to criminal prosecution3.
2. The Judgments
The Constitutional Court handed down two judgments in the Jordan case. The Court was in agreement on the conclusion, but took different paths in order to reach the conclusion. The majority judgment was penned by Ncobo J with whom Chaskalson CJ, Kriegler J, Madala J, Du Plessis AJ and Skweyiya AJ concurred. The minority judgment was penned by O Regan J and Sachs J, and Langa DCJ, Ackerman J and Goldstone J concurred.
As stated above, the Court was in agreement that the legislation in question pursued an important and legitimate constitutional purpose in that it sought to outlaw commercial sex4 and, through this, criminalisation also sought to criminalise brothel keeping5. They also agreed that arguments put forward in respect of the violation of the rights to human dignity, freedom of the person, privacy and economic activity all failed.
3. The Assumptions
Sex work encourages social ills such as violence, leads to drug abuse, exploitation, trafficking of women and children, and spreads sexually transmitted diseases
The majority judgment contains support of the legitimate Constitutional purpose that criminalisation seeks to achieve. This support flows from the assumption that commercial sex breeds and encourages a variety of social ills such as violence, exploitation and trafficking in women and children, drug abuse and the spread of sexually transmitted diseases. These assumptions were considered to be legislative facts by the majority6. If we take these legislative facts to their conclusion, it would mean that if we criminalise commercial sex (and through criminalisation, eradicate) we would be able to address (and, by implication, eradicate) crimes of violence, exploitation, trafficking of women and children, drug abuse and the spread of sexually transmitted diseases. This assumption, whether legislative fact or not, is completely irrational. Arguments were presented that shows that many of the crimes or offences associated with commercial sex are, in fact, only present because commercial sex is criminalised. Furthermore, ongoing criminalisation has not reduced levels of violence faced by women, the spread of HIV and AIDS or other sexually transmitted diseases, and we still have no research base to begin unpacking sex trafficking in South Africa. Could it be that the assumption and the legislative fact is based more on moral reasoning and presumptions about those in the sex industry than on actual fact?
Criminalisation of sex work is not discriminatory towards women – therefore there is no direct discrimination against women
The majority judgment makes an assumption that discrimination is only present if it is stipulated and, therefore, if not implied, or it happens via implementation of legislation, you cannot call it discrimination. Ncobo J finds that the Act is gender neutral (let’s disregard all the evidence placed before the Court that the profession is dominated by women) and, therefore, capable of being implemented in such a manner that both the seller, as well as the buyer is criminalised. He took the view that the stipulation requires the payment of a reward and, therefore, serves to confine the offence to unlawful carnal intercourse and acts of indecency of a certain kind. By his analysis, participation is the offence and the section does not single out any one of the participants. He, therefore, found no direct discrimination, even though it was absolutely clear, and it remains clear, that the only person prosecuted under the Act remains the female sex worker. Substantive equality therefore has no role to play in this assumption and analysis in the majority judgment.
We only need to return to the origins of the legislation for its discriminatory nature and implementation double standards to become apparent. The history of the legislation and its moral imperative requires of women to be chaste, while allowing men to be sexually virile and to show that virility through sexual conquests. The minority judgment notes in para 62 and 63 that:
‘Historically prostitutes are almost always women, and the unchaste in the behavior of their male clients, being not considered unchaste, was not seen to be deserving of punishment. This crude form of sexist gender discrimination, it is submitted, underlies the provisions of s 20(1)(aA) of the Act’
While the minority is sensitive to the discrimination and the patriarchal foundation of the Act, they go no further to validate the inherent discrimination faced by women sex workers. Although they find that there is indirect discrimination, they feel that such discrimination is valid as part of the whole legislative purpose of the Act.
It’s the woman’s fault for being sexually promiscuous
By refusing to acknowledge the gendered nature of commercial sex work and by denying that women are at greater risk of prosecution than their male clients in the implementation of the Act, the Jordan judgment, in effect, reinforces the age-old stereotype against women, their sexuality and the definitions of “promiscuous” and “immoral”.
In para 16 of the judgment, Ncobo J makes it clear that the majority is of the view that the stigma associated with the sex trade has everything to do with the sex worker choosing to engage in the profession and has no bearing on gender, as the stigma applies to both male and female sex workers. Through this concession, the majority confirms the view and upholds the assumption that if you know that there are stereotypes within the profession, but you choose to enter it, then you have nothing to complain about as you must surely fit the stereotype. This is probably the worst of the assumptions that the Court makes, as it appears to validate a stereotype about the morality of the women who work in the commercial sex industry.
A private matter between consenting adult
‘Privacy recognizes that we all have the right to a sphere of private intimacy and autonomy which allows us to establish and nurture human relationships without interference from the outside community. The way in which we give expression to our sexuality is at the core of this area of private intimacy. If, in expressing our sexuality, we act consensually and without harming one another, invasion of that precinct will be breach of our privacy’7
The majority judgment in Jordan does not accept that criminalisation of commercial sex infringes on the right to equality. Ncobo J, in fact, dismisses the reality that commercial sex relates to the sexuality or sexual expression of the sex worker.8
The opinion expressed is that, if a crime is committed in private, one cannot claim protection because it took place in private, especially not if it was premised on inviting the public to engage9. The assumption that this approach makes in distinguishing itself from the National Coalition case, quoted above, is, therefore, that only if a sexual act is committed in a certain type of relationship setting (read morally approved of), then privacy can be relied upon. In the instance where these acts take place for commercial purposes and without the presence of affection, love and commitment, then surely the same protection cannot be extended? The result of the presumption is that, by entering into the public arena by seeking to gain from something that others give free of charge, you open yourself up to justifiable discrimination.
The dignity of some
‘Recognizing a right to dignity is an acknowledgement of the intrinsic worth of human beings; human beings are entitled to be treated as worthy of respect and concern.10’
The right to dignity has been expressed as the right on which all other rights rest. The right that was cited in S v Makwanyane, by the same Constitutional Court, as the right that is intrinsic to the worth of human beings, was found by both the majority, as well as minority judgments, to be irrelevant to the case at hand. It was not dealt with in any substantive manner, and the Court failed to give any meaningful explanation for why the dignity of a woman whose sexuality is criminalised and whose choice in terms of her own body and what she chooses to do as a profession is irrelevant to the proceedings.
The minority had a different approach in that they did not merely dismiss the dignity argument offhand. Because they had dealt with the issue of indirect discrimination, an analysis of dignity11 had to be dealt with as a result. O Regan and Sachs, however, adopt the peculiar approach that relates the right to dignity to the sexual act that is being committed. In their opinion, the sex worker is not nurturing a relationship and, as a result of the commercial aspect of the sex act itself, sexual intercourse loses its intimacy and, as a result, diminishes its privacy setting. She is, after all, simply making money and, as such, cannot claim or rely on intimacy and privacy in the same way that someone/women in a perceived proper relationship can. Although they don’t state that she has no right to privacy, they state that she has chosen to diminish it. This argument is relevant in relation to the right to dignity, as the approach that is then adopted in respect of the right to dignity follows the same basis.
The minority held that sex work constitutes the commodification of one’s body and if one chooses to enter a profession where you devalue yourself in the eyes of society and your community, you in effect diminish your own dignity. Their argument seems to flow from a preconceived conclusion that sex work as a profession lacks dignity and, as a result, women lose their dignity when they enter the profession. It is also based on the assumption that when a woman engages in commercial sex work, she “sells her body”. This assumption is not factually accurate as sex workers whom we work with are at pains to explain that the experience of sexual intercourse – the act itself – is the commodity. An assumption that states that a “woman sells her body” is based on a patriarchal view that a woman is not in control of her own sexuality, cannot be allowed to decide or make decisions about that sexuality, cannot decide who she engages in sex with and, as a result, is nothing but an item that can be bought and sold.
In Jordan, case the Court was presented with an overwhelming amount of evidence and argument. The result is a judgment that points to the very real moral conservatism that is surely not envisaged in our Constitution. It would be difficult, if not impossible, to bring another challenge to the constitutionality of the criminalisation of commercial sex. Civil society organisations and sex workers are, therefore, continuing to engage the government and the South African Law Reform Commission to ensure legislative and policy change.
- The constitutionality of sections 2, 3(b), 3(c) and 20(1)(aA) of the Sexual Offences Act 23 of 1957 was under deliberation.
- S v Jordan 2002 (6) SA 642 (CC).
- Section 2 and section 3 of the Sexual Offences Act.
- Para 15 and 58 of the Judgment.
- Para 1 and 120 of the Judgment
- Para 24 of the Judgment.
- National Coalition for Gay and Lesbian Equality v The Minister of Justice 1999 (1) SA 6 (CC) para 32.
- Para 29 of the Judgment.
- Para 28 of the Judgment.
- S v Makwanyane 1995 (3) SA 391 (CC) para 144.
- Para 74 of the Judgment.