O’REGAN J and SACHS J
purpose served by the discriminatory impact of the provision, and in the light of our conclusion
that the provision furthers harmful sexual stereotypes, we are not persuaded that the
discrimination is justifiable as contemplated by section 33. In our view, therefore, the provision
is inconsistent with the Constitution in this respect. We shall return to the question of remedy
later.
The constitutionality of sections 2 and 3(b) and (c) dealing with brothels
Interpretation
[99]
Before proceeding to consider the constitutionality of sections 2 and 3(b) and (c), it is
necessary to consider their meaning and ambit. In this regard, the definitions of brothel and of
unlawful carnal intercourse are relevant. As indicated at paragraph 34 above, “unlawful carnal
intercourse” is defined in section 1 of the Act as “carnal intercourse otherwise than between
husband and wife”. A brothel is defined as including “any house or place kept or used for
purposes of prostitution or for persons to visit for the purpose of having unlawful carnal
intercourse or for any other lewd or indecent purpose”. The provisions of sections 2, 3(b) and (c)
must be read as incorporating these definitions, so when section 2 provides that “any person who
keeps a brothel shall be guilty of an offence”, it must be read to mean –
*
“any person who
*
keeps any house or place
*
kept or used for purposes of prostitution or for persons to visit
*
for the purpose of having unlawful carnal intercourse which means intercourse other than
between husband and wife
*
or for any other lewd or indecent purpose”.
66
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