O’REGAN J and SACHS J
feature of the differentiation in the present matter is that it tracks and reinforces in a profound
way double standards regarding the expression of male and female sexuality. The differential
impact is accordingly not accidental, just as the failure of the authorities to prosecute male
customers as accomplices is entirely unsurprising. They both stem from the same defect in our
justice system which hold women to one standard of conduct and men to another.
[68]
In determining what is fair, we cannot look at section 20(1)(aA) in isolation, abstracted
from its social setting. As Wilson J reasoned in the Canadian Supreme Court:
“it is important to look not only at the impugned legislation which has created a
distinction . . . but also to the larger social, political and legal context . . . [I]t is only by
examining the larger context that a court can determine whether differential treatment
results in inequality . . . . A finding that there is discrimination will, I think, in most but
perhaps not all cases, necessarily entail a search for disadvantage that exists apart from
and independent of the particular legal distinction being challenged.”25
We see no reason why the plier of sex for money should be treated as more blameworthy
than the client. If anything, the fact that the male customers will generally come from a
class that is more economically powerful might suggest the reverse. To suggest, as the
law (and Ngcobo J) do, that women may be targeted for prosecution because they are
merchants of sex and not patrons is to turn the real-life sociological situation upsidedown. The evidence suggests that many women turn to prostitution because of dire
financial need and that they use their earnings to support their families and pay for their
children’s food and education. As we have stated, we do not regard this as an excuse or a
25
See R v Turpin (1989) 39 CRR 306 at 335-6.
41
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