O’REGAN J and SACHS J
primary stigma lie in offering sexual intercourse for reward, not in purchasing it.
[64]
This distinction is, indeed, one which for years has been espoused both as a matter of law
and social practice. The female prostitute has been the social outcast, the male patron has been
accepted or ignored. She is visible and denounced, her existence tainted by her activity. He is
faceless, a mere ingredient in her offence rather than a criminal in his own right, who returns to
respectability after the encounter. In terms of the sexual double standards prevalent in our
society, he has often been regarded either as having given in to temptation, or as having done the
sort of thing that men do. Thus, a man visiting a prostitute is not considered by many to have
acted in a morally reprehensible fashion. A woman who is a prostitute is considered by most to
be beyond the pale. The difference in social stigma tracks a pattern of applying different
standards to the sexuality of men and women.
[65]
In the present case, the stigma is prejudicial to women, and runs along the fault lines of
archetypal presuppositions about male and female behaviour, thereby fostering gender
inequality. To the extent therefore that prostitutes are directly criminally liable in terms of
section 20(1)(aA) while customers, if liable at all, are only indirectly criminally liable as
accomplices or co-conspirators, the harmful social prejudices against women are reflected and
reinforced. Although the difference may on its face appear to be a difference of form, it is in our
view a difference of substance, that stems from and perpetuates gender stereotypes in a manner
which causes discrimination. The inference is that the primary cause of the problem is not the
man who creates the demand but the woman who responds to it: she is fallen, he is at best virile,
at worst weak. Such discrimination, therefore, has the potential to impair the fundamental
39
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