sexual health and human rights in the african region - The ICHRP

ape. In Fraser v Children’s Court, Pretoria North, 243 the Court held, in part, that
requiring only the consent of the mother of a child born out of wedlock to
consent to adoption did not constitute unfair discrimination on the basis of sex or
gender. In President of South African v Hugo 244 it was held that a presidential
decree to remit the sentence of prisoners who were mothers (and not fathers) of
children under twelve years of age did not constitute unfair discrimination on
the basis on sex and gender. In National Coalition for Gay and Lesbian Equality v
Minister of Justice, 245 the Court held in part that the common law crime of sodomy
which only criminalized sexual acts between males constituted unfair
discrimination on the ground of sex. In S v Jordan 246 it was held that legislation
that criminalized sex workers, who were predominantly female, but not their
clients, who were predominantly male, did not constitute unfair discrimination
of the ground of sex and gender. In Masiya v Director of Public Prosecutions, 247 it
was held, in part, that the common law definition of rape that was gender
specific as to assume only women as victims of rape did not constitute unfair
discrimination on the grounds of sex and gender.
[43] Of the South African cases on sex and gender discrimination, it is the National
Coalition for Gay and Lesbian Equality v Minister of Justice, Jordan, and Masiya cases
that have a closer bearing on the protection and promotion of sexual health.
Criminalizing consensual sexual acts between persons of the same sex who have
the capacity to consent freely stigmatizes people on the basis on sexual
orientation and makes it less likely for gays and lesbians to avail themselves of
health services as well as to partake of health promotion activities. Sexual acts
that are conducted under a cloud of possible prosecution render subscription to
safer sexual practices less likely. Equally, criminalizing sex work is stigmatizing.
It has a capacity to alienate sex workers especially from health services and
health promotion efforts. Fear of prosecution and conviction make it less likely
that sex workers will be ready and willing to request for health services or
generally engage in individual and collective efforts for the prevention and
treatment of sexually transmitted infections. Criminalizing rape is a way of
protecting the physical and psychological integrity of persons whether they are
female or male. Coerced sexual acts do not only injure the human rights to
dignity and privacy, but are also a potent route for sexually transmitted
infections.
243 Fraser v Children’s Court, Pretoria North 1997 (2) BCLR 153 (Constitutional Court of South Africa).
244 President of the Republic of South Africa v Hugo 1997 (6) BCLR 708 (Constitutional Court of South Africa).
245 National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (Constitutional Court of
South Africa). This case is further discussed in a later section in this chapter and in Chapter 3 of this
study.
246 S v Jordan 2002 (11) BCLR 1117 (Constitutional Court of South Africa). This case is further discussed in
Chapter 9 of this study.
247 Masiya v Director of Public Prosecutions 2007 (8) BCLR 827 (Constitutional Court of South Africa). This
case is further discussed in Chapter 3 and in Chapter 6 of this study.
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