O’REGAN J and SACHS J [83] Prostitution is quite different; the equality interest works the other way inasmuch as it is the very institution of commercial sex that serves to reinforce patterns of inequality. Moreover, central to the character of prostitution is that it is indiscriminate and loveless. It is accordingly not the form of intimate sexual expression that is penalised, nor the fact that the parties possess a certain identity. It is that the sex is both indiscriminate and for reward. The privacy element falls far short of “deep attachment and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences and beliefs but also distinctly personal aspects of one’s life”.47 By making her sexual services available for hire to strangers in the marketplace, the sex worker empties the sex act of much of its private and intimate character. She is not nurturing relationships or taking life-affirming decisions about birth, marriage or family; she is making money. Although counsel for the appellants was undoubtedly correct in pointing out that this does not strip her of her right to be treated with dignity as a human being and to have respect shown to her as a person, it does place her far away from the inner sanctum of protected privacy rights. We accordingly conclude that her expectations of privacy are relatively attenuated. Although the commercial value of her trade does not eliminate her claims to privacy, it does reduce them in great degree. [84] We conclude that section 20(1)(aA) does amount to an infringement of privacy and we cannot agree with the proposition that prostitutes surrender all their rights to privacy in relation to the use of their bodies simply because they receive money for their sexual services. However, we conclude that the invasion of privacy thus caused is not extensive. The question to be asked is whether such intrusion is justifiable, a question to which we now turn. 47 Brennan J in Roberts v United States Jaycees above n 41 at 620. 56

Select target paragraph3

Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents