The unconstitutional criminalisation of adult sex work

Abstract

The continued criminalisation of adult commercial sex work in South Africa seems to have contributed to the unjust violation of sex workers’ constitutional rights such as the rights to equality, human dignity, privacy and the right to bodily integrity. It is evident that laws enforcing sexual morality often increase the stigmatisation and marginalisation of minority groups. In Teddy Bear Clinic for Abused Children and Others v Minister of Justice and Others, both High Court and Constitutional Court held that the criminalisation of consensual sexual intercourse and consensual sexual violation between two minors of ages twelve to fifteen is inconsistent with the Constitution. In Teddy Bear both courts relied on the argument that the criminalisation constituted a violation of the children’s rights to dignity, privacy and self-autonomy. The courts’ reasoning is logical. However, it takes one back to the issue of adult commercial sex which still remains criminalised in South Africa. If both courts in Teddy Bear could order for the decriminalisation of consensual sex between minors of certain age groups, then the continued criminalisation of adult commercial sex work should also be called into question.

This dissertation argues that the regulation of sexual morality often unjustly infringes the constitutional rights of those targeted. It has also been identified that criminal and human- rights law are frequently applied in an unfair and biased manner by South African courts. Examples are cited in the dissertation of court cases where courts applied a flexible approach towards the development of common law, whilst in other cases the courts seemed to hide behind the separation of powers doctrine instead of tackling the issues of human- rights violations.

The first chapter of the dissertation contains the problem statement, research questions, motivation, literature review and a brief outline of the chapters. The second chapter explores the question of the morality which is endorsed by the South African Constitution. The third chapter identifies the biased and unfair application of criminal and human- rights law by South African courts. The fourth chapter contains an argument on the courts’ duty to interpret legislation and to develop common law in a manner that promotes the spirit, objects and purport of the Bill of Rights. Chapter five contains a brief international perspective on adult commercial sex work, by looking at the New Zealand position and other relevant international law instruments. Chapter six contains the conclusion of the dissertation.

It is proposed that when dealing with the issue of adult commercial sex work, the legislature should be careful not to enact laws which disregard the sex workers’ human- rights. Here one can cite New Zealand as a country that has taken a human- rights approach when tackling the issue of adult commercial sex work. A human -rights approach aims to empower people in the sex work industry to make informed choices regarding their health and other choices relating to their overall safety. This approach represents a shift from a moralistic approach to sex work to an approach that recognises the rights of sex workers. The case of S v Jordan provided a platform that the judiciary should have used to eliminate human -rights violations brought by the criminalisation of adult commercial sex work. Failure of the Constitutional Court in Jordan to approach the matter from a human-rights perspective has come as a huge disappointment to the attempts to reform one of the oppressive and moralistic laws which continue to exist even during the post Constitutional era.