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Stu Woolman & Henk Botha 185
prostitution. 98 The majority reasoned as follows:
If the public sees the recipient of reward as being ‘more to blame’ than
the ‘client’, and a conviction carries a greater stigma on the ‘prostitute’
for that reason, that is a social attitude and not the result of the law.
The stigma that attaches to prostitutes attaches to them, not by virtue
of their gender, but by virtue of the conduct they engage in. That stigma
attaches to female and male prostitutes alike. I am not persuaded by the
argument that gender discrimination exists simply because there are
more female prostitutes than male prostitutes, just as I would not be
persuaded if the same argument were to be advanced by males accused
of certain crimes, the great majority of which are committed by men. 99
The Court’s commitment to a very strong form of metaphysical
autonomy — a form of autonomy that makes all individuals morally
and legally culpable for actions that issue ineluctably from their
circumstances — fails dramatically the large number of prostitutes
who are victims of sexual trafficking. The Jordan Court continues:
It was accepted that they have a choice, but it was contended that the
choice is limited or ‘constrained’. Once it is accepted that [the
criminalisation of prostitution] is gender-neutral and that by engaging in
commercial sex work prostitutes knowingly attract the stigma associated
with prostitution, it can hardly be contended that female prostitutes are
discriminated against. 100
First, sexual trafficking is about the sale and exploitation of women
for prostitution. It is about women who have little chance, and no
choice, in life’s wheel of fortune. Second, how ‘knowing’ that stigma
attaches to an event that takes place under conditions of compulsion
makes a prostitute culpable remains unclear. The Jordan Court’s
approach may hold in the context of some ‘voluntary’ forms of
prostitution. But the Jordan Court’s views regarding ‘autonomy’
makes the manumission of most sexual slaves inconceivable.
A more recent judgment, written by Justice Mokgoro, hints at a
way out of this kind of ‘autonomy trap’. In Khosa v Minister of Social
Development; Mahlaule v Minister of Social Development, the
Constitutional Court found unconstitutional, as a violation of both FC
section 9 and FC section 27(1), the exclusion of permanent residents
from the class of persons entitled to a variety of social security grants:
old age, disability, veterans, child-support and foster care. Mokgoro J
writes:
The exclusion of permanent residents in need of social-security
programmes forces them into relationships of dependency upon families,
98 See s 20(1)(aA) of the Sexual Offences Act 23 of 1957.
99
Jordan (n 62 above) paras 16-17.
100 n 62 above, para 16.