O’REGAN J and SACHS J [90] In approaching the question of proportionality, the Court is obliged to apply the standards of an open and democratic society.52 Open and democratic societies vary enormously in the manner in which they characterise and respond to prostitution. Thus practice in such countries ranges from allowing prostitution but not brothel-keeping; to allowing both; suppressing both; to setting aside zones for prostitution; and to licensing brothels and collecting taxes from them.53 The issue is generally treated as one of governmental policy expressed through legislation rather than one of constitutional law to be determined by the courts. We are unaware of any successful constitutional challenge in domestic courts to laws prohibiting commercial sex. The matter appears to have been treated as one for legislative choice, and not one for judicial determination. The issue is an inherently tangled one where autonomy, gender, commerce, social culture and law enforcement capacity intersect. A multitude of differing responses and accommodations exist, and public opinion is fragmented and the women’s movement divided. In short, it is 52 Section 35(1) of the interim Constitution reads: “In interpreting the provisions of this Chapter a court of law shall promote the values which underlie an open and democratic society based on freedom and equality . . .”. 53 The study, Pornography and Prostitution in Canada: Report of the Special Committee on Pornography and Prostitution Vol 2 (Canadian Government Publishing Centre, Ottawa 1985), clearly indicates that the regulation of prostitution and associated activities has been dealt with in a variety of ways by individual states. In the United Kingdom, for example, criminalisation has been limited to solicitation and brothelkeeping, and not prostitution per se (at 479-82). A similar approach has also been favoured by Canada and other countries whose legal systems have been strongly influenced by the United Kingdom (at 403-29). In the United States, brothel-keeping is only permitted in some parts of Nevada, while both brothel-keeping and prostitution are forbidden in all other states (at 473-7). In Australia, at least two states, namely New South Wales and Victoria, have taken steps towards a less proscriptive approach towards prostitution. This can be contrasted, however, with the stricter attitude that is adopted by the states of Queensland and Western Australia to sexual offences in general, and to prostitution-related activities in particular (at 48290). The situation in continental Europe varies from country to country, and even from time to time. For many years, brothels were a feature of life in France. They were later criminalised, but recent trends indicate moves towards making them lawful again (at 495-6). Regulation of prostitution in the Netherlands and Germany takes place in the form of so-called “red light” districts in which prostitutes can function in an organised fashion (at 497-502). It appears as if it is only in Sweden where the customer, and not the prostitute, is subject to criminal prosecution (at 502-4). Finally, in India, legislation is aimed at the suppression of commercialised vice, namely, traffic in women and girls, for the purposes of prostitution as an organised means of living, and not at the penalisation of individual prostitutes or of prostitution in itself. See A Kant Women and the Law (APH Publishing, Delhi 1997) at 124-5. 62