The bonos mores principle is a principle in South African law that entails the concept of the ‘good morals’ of society. According to Hutchison et al (2016:181), good morals refer to good behaviour in the community. Hutchison goes further and states that in most instances where the court held that the performance was contrary to good morals, the conduct involved was immoral or sexually reprehensible; which brings me to my point: why are we still allowing moral convictions regarding sexual behaviour to dictate to people what they are allowed to do with their own bodies? Are the majority really still that blind to the light of liberty?
I have not come across a single person that is not in favour of individual freedom. The type of people I do come across more often than I’d prefer, are those who are apparently in favour of liberty, right up until the point where somebody does something that offends their own sensibilities. Section 11 of Sexual Offences Act of 2007 defines the “crime” of prostitution as a person who unlawfully and intentionally engages the services of a person 18 years or older for financial or other reward for the purpose of engaging in a sexual act (regardless of whether the act is committed or not), or actually engaging in a sexual act (Snyman, 2008:373).
This is problematic for one simple reason: a person engaging in consensual sexual conduct with another person is nobody else’s business but their own. The fact that a transactional reward is involved is largely irrelevant. I also have to emphasise the word “consensual”. Women (or men) being held in brothels against their will automatically renders their consent absent. This is sadly quite a common retort against the legalisation of sex work: “what about all the sex trafficking victims?” The key concept here is consent, and consensual sex work engaged in by other persons is of no interest to you. “Sex” that isn’t consensual is known as rape, a crime as old as the mountains themselves.
Humans are a peculiar species, to say the least. We fight for our own freedom but are less willing to fight for others’ freedom when we don’t agree with what they do with their freedom, even if it does not harm us or anybody else. We are supposed to fight for the freedom of everyone, even if they use it to commit deeds which we deem morally reprehensible. As long as those deeds do not unjustifiably impair anybody’s freedom, we should fight for the right for people to commit them. What we regard as moral or not should not be confused with things that actually impair another person’s freedom. The two concepts are not mutually inclusive by default.
People’s bodies are theirs to do with as they please. The only thing people owe you is non-aggression. Period.
The legal convictions of the community do not deserve to trump liberty. We all like to believe that morality and the law should not be mutually-exclusive. What the vast majority of people fail to consider time and again is whether this is a wise thing to believe. What’s moral to one person is not necessarily moral to the person standing beside them. Morality is by and large subjective and largely motivated by religious convictions. Contrary to popular belief, conduct can be deemed immoral and still not be deemed criminal. What matters is whether the conduct in question impairs freedom, not whether you are offended by it based on your own moral convictions.
With the deontological side of the argument out of the way, criminalisation of sex work also has detrimental consequences in practice.
The very fact that something is deemed a crime does not automatically stop people from committing that crime. Sex work flourishes in the abyss that is the black market. Out of the public eye, sex workers (mainly women) risk their lives by being forced to stand on shady street corners to sell their bodies. It may be that it is their choice to engage in prostitution, but what is unjust is that their choice is criminalised to the extent that they have to risk their lives just to exercise their right to bodily autonomy and, by extension, their freedom. Have we as a society still not realised that it is not just to prosecute and imprison people for making use of their bodily autonomy as they deem fit?
Apparently, we have not. News24 reported that the Law Reform Commission released a report in 2017 in which they recommended that full criminalisation of sex work remain the law of the land.
A valid point made by the non-profit organisations Hand4Hearts and LoveJustice against the decriminalisation of sex work was that sex trafficking and prostitution cannot be separated. However valid this point may be, it still begs the question of whether it is just to limit the freedom of sex workers who do not engage in sex trafficking based on the crimes of sex traffickers themselves?
Sex trafficking tarnishes the principle of consent. Sex work does not. If I may paraphrase Lysander Spooner: to limit the freedom of the innocent based on the actions of criminals is to tell the innocent that their freedom depends not on their own actions but on the actions of others.
A representative from the Centre for Applied Legal Studies said that the very use of the term “prostitution” showed inherent biases and discrimination against sex workers. “This has a link to our moralising attitudes about sex and about women having sex. By deciding things on behalf of sex workers, we are treating women as children”, said the representative. Amnesty International also called for sex workers to be given the capacity to make decisions for themselves.
The spokesperson for the Women’s Legal Centre, Angie Richardson, according to News24 said that sex workers will still be forced to work in secluded areas where it is unsafe, hence putting them at risk. She added that sex workers will continue to experience high levels of police brutality. Police brutality should be reserved solely for fighting violence. Individuals engaging in sex work do not engage in violent conduct.
What freedom means to people these days – the laymen’s version of it – is twisted to make room for unjust infringements of individual liberty. Society must reconsider what it means to be truly free.
My argument does not stem from some twisted subconscious desire for an escort service. It stems from the principles underlying libertarianism and individualism, two concepts which people are sadly unfamiliar with because people only respect others’ freedom up until the point where it makes them feel uncomfortable. People are indoctrinated to be statists.
Property rights underlie individual liberty, and one’s own body is central to property rights. Nobody owns another person’s body and cannot dictate to them what non-aggressive actions they may undertake with their bodies. This is not negotiable.
Humans are extremely apathetic when it comes to using the force of the state to control the lives of others who’ve done them no harm. Homo sapiens are unfortunately far more in favour of violence by proxy (or, at least, a credible threat thereof) than they should be. And that is exactly why we’ve gone off the rails. Blatant majority rule that is not policed by the principles of liberty is mob rule.
I leave you with the following quote by C.S. Lewis:
“Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience.”