O’REGAN J and SACHS J
justification. However, to suggest that male patrons who are able to use their economic
means to obtain sexual gratification are somehow the less blameworthy partners in the
eyes of the criminal law, appears to us to be markedly unfair.
[69]
Parliament may decide to render criminal sexual intercourse where a reward is paid, but
their decision to make only purveyors of sexual intercourse and not purchasers primarily liable,
entrenches the deep patterns of gender inequality which exist in our society and which our
Constitution is committed to eradicating. In this regard, section 20(1)(aA) is different from the
presidential pardon at issue in Hugo’s case,26 which afforded a benefit to single mothers of
children, admittedly on the stereotyped basis that it is mothers who bear the primary
responsibility for children in our society.27 In that case, we held that because the impact was to
reduce the burden borne by mothers, it did not constitute unfair discrimination. In this case, the
impact exacerbates the burden of sexual stereotyping borne by women and in particular sex
workers.
[70]
In determining whether the discrimination is unfair, we pay particular regard to the
affidavits and argument of the Gender Commission. It is their constitutional mandate to protect,
develop, promote respect for and attain gender equality.28 This Court is of course not bound by
the Commission’s views but it should acknowledge its special constitutional role and its
expertise. In the circumstances, its evidence and argument that section 20(1)(aA) is unfairly
26
Above n 16.
27
Id at para 47.
42
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