Praise for the Constitutional Court Judgement on the Illegality of Prostitution (11 October 2002)

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Dear Editor

The Constitutional Court ruling (9 October 2002) in the Jordan case that selling sex is illegal in South Africa is a landmark in many respects.

Firstly, we are very encouraged that the ruling explicitly recognised the legislature’s democratic freedom to legislate on this issue. It did not, as previous Constitutional Court rulings have done, bypass Parliament and modify the law. Special interest groups will no doubt be disappointed that they cannot use the Constitutional Court to bypass the parliamentary process. Ordinary people, who have to live with the nuisance, crime and even the sexually transmitted diseases spread by prostitution, are relieved.

The ruling also clarified that under the current law the customer can be prosecuted to the same extent as the prostitute, under section 18 of the Riotous Assemblies Act 1956. Prior to this ruling, it was taken that the law only made provision to prosecute prostitutes and not their customers. This was unfair and we are glad that the Constitutional Court judges have not only made the legal situation fair, but have also made it clear.

Two arguments were rejected: practising prostitution in private does not decriminalise the behaviour (just as committing any other crime in private is not a defence) and the current legislation is not indirectly discriminatory since prostitutes are predominantly female. Since most crimes have a gender bias (e.g. rape and armed robbery are predominantly male crimes), we are glad that the court has rejected such gender bias as indirectly discriminatory.

We are relieved that six of the Constitutional Court judges have stepped in to stop the slide in the name of constitutionality to moral anarchy. There has been a hiatus in the legal position since a High Court ruled on 2 August 2001 that prosecuting prostitution is unjustified discrimination. We are delighted that society in general and the family in particular will again accorded protection against prostitution. This ruling will encourage communities to report prostitution and will encourage the police to police such crimes.

Public comment on the issue of prostitution has been requested by the South African Law Commission by 31 October 2002. This ruling leaves the legislature with the democratic freedom to chose a model to deal with prostitution. By definition, prostitution cannot be the oldest profession. Since payment is part of the contract, agriculture and/or commerce must first be established before prostitution is possible.

From the Bible, we believe that sex outside of marriage should not be legally protected. God requires people to be abstinent prior to marriage and faithful within marriage. Following this model will reduce the incidence of sexually transmitted diseases as well as the pain and suffering associated with unfaithfulness. We also see that violence is inherent in prostitution. It is not and can never be a legitimate profession. Prostitutes can, however, be saved and made fully whole in God’s power. Both Tamar (who disguised herself as a prostitute to seduce her father in law) and Rahab (an innkeeper and prostitute) are in Jesus Christ’s ancestry. Finally, a people who reject God will turn to other gods and to prostitution. This will bring God’s judgement on our land. May God give us the wisdom to chose to do what is right.

Jeanine McGill
National Co-ordinator

“Do not lust in your heart after her beauty or let her captivate you with her eyes, for the prostitute reduces you to a loaf of bread, and the adulteress preys upon your very life.” Proverbs 6:25-26

Christian Action P.O.Box 23632 Claremont 7735 Cape Town South Africa [email protected] - 021-689-4481 - www.christianaction.org.za
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