Valid consent to objectifying treatment should be allowed

• Date: 01 January 2013
• Pages: 346-382
• Published date: 01 January 2013
• Author: Sarah Fick
• DOI: 10.10520/EJC153136

Valid consent to objectifying treatment

should be allowed

Sar ah Fick *

1 Introductio n

In South Africa, as in various other countries, human dignity has come to be

regarded as a supreme value and an objective legal norm. This understanding

1

of dignity is not, however, always commended. One of the dangers of viewing

dignity as a supreme value is that it can be used to support a paternalistic role for

the state. The state has the power to make any laws as long as it can argue that

it serves to protect human dignity. This kind of paternalism often inhibits the

individual and personal freedom of citizens.2

As a result, human dignity is often seen as being in opposition to f reedom.

In the view of some writers this is problematic, since human dignity and freedom

are interrelated and freedom should be enhanced by human dignity. On the other

3

LLB, LLM. Senior Teaching Assistant, Department of Private Law, University of Cape Town. This

*

article is based on my LLM thesis Consenting to objectifying treatment: Human dignity and

individual freedom (LLM thesis Stellenbosch University (Stellenb osch)) (2012). My sincerest

gratitude goes to my thesis supervisor, Professor Henk Botha at the University of Stellenbosch, for

his patient guidance during the drafting o f my thesis.

Chaskalson ‘Human dignity as a constitutional value’ in Kretzmer and Klein (eds) The concept of

1

human dignity in human rights discourse (2002) 133 at 136; National Coalition for Gay and Lesbian

Equality v Minister of Justice 199 9 1 SA 6 (CC) para 28 (hereafter referred as ‘NCLGE’). As an

objective legal norm, dignity is used to mediate value conflicts and conflicts between fundamental

human rights. See Botha ‘Human dignity in co mparative perspective’ (2009) Stell LR 171 at 215-

216. See McCrudden ‘Human dignity and judicial interpretation of human rights’ 2008 The

European JIL 655 at 664-675; Eckert ‘Legal roots of human dignity in German law’ in Kretzmer and

Klein (eds) The concept of human dignity in human rights discourse (2002) 41 at 52,53; Starck ‘The

religious and philosophical backgrou nd of human dignity and its place in modern constitutions’ in

Kretzmer and Klein (eds) The concep t of human dignity in human rights discourse (2002) 179 at

179,180, for examples of human dignity in the human ri ghts texts of other countries.

Eckert demonstrates how dignity can be a tool in the hands of the state (n 1) 69. See also Starck

2

(n 1) 189, 192 for more on the role of the state.

Ferreira v Levin NO; Vryenhoek v Powell NO v Levin NO; Vryenhoek v Powell NO 1996 2 SA 621

3

(CC) para 49 (hereafter referred to in the main text as ‘Ferreira ’). See also W oolman ‘Dignity’ in

Woolman et al (eds) Constitu tional law of South Africa (2005) (2 ed) 36-1 at 36-67.

nd

Val id con sent to ob jectify ing t reatm ent sh ould be al lowed 347

hand, it has been argued that individual freedom may be constrained to protect

the human dignity of others. This raises a fundamental question, namely whether

4

one has the freedom to consent to the infringement of one’s dignity. Conversely,

does the state have a legitimate interest in banning activities that arguably

infringe the dignity of participants? These q uestions have not been answered

satisfactorily in the literature.

These questions will be considered in the context of obj ectifying treatment

as an infringement of dignity. Objectifying treatment infringes dignity, since dignity

is said to promote inherent worth. Inherent worth essentially means that nothing

5

can add or subtract from a person’s worth. This implies two things. Firstly,

6

nothing can add to a person’s worth, because it exists regardless of its

recognition. A person’s worth is not awarded through legal operation; people

7

possess it from birth, irrespect ive of their ability or potential. Secondly, the fact

8

that nothing can subtract from a person’s worth means that it can never be lost.

It is not lost by undignified behaviour and is even said to be inalienable,

irreducible, unwaivable and inviolable.

9

Furthermore, the fact that an individual has inherent worth means, in Kantian

language, that she is an end in herself and cannot be used as a means to an

end. Using someone as a means to an end objectifies such a person and

10

therefore infringes human dign ity.

Three possible approaches to these questions have transpired from legal

writing. The first is that consent to objectifying treatm ent should not be allowed

under any circumstances. The second is that where the state cannot fulfil the

Starck (n 1) 189.

4

The idea that dignity promotes inherent worth relates to the religious and philosophical roots of

5

human dignity. For a discussion on the religious and philosophical roots of human dignity, see

Starck (n 1).

Wood ‘Human dignity, right and the realm of ends’ in Barnard-Naude, Cornell and Du Bois (eds)

6

Dignity, freedom and the post-apartheid legal order (2008) 47 at 49.

See Dicke ‘The founding function of human dignity in the Universal Declaration of Human Rights’

7

in Kretzmer and Klein (eds) The concept of human dignity in human rights dis course (2002) 111

at 114.

Botha (n 1) 189. See also Barrett ‘Dignatio and the human body’ (2005) SAJHR 525 at 531. Barrett

8

explains that the philosopher, Pufendorf, created the idea of human rights by birth.

O’Regan J determines that dig nity is not lost through undignified behaviour in S v Makwanyane

9

1995 3 SA 391 (CC) paras 137, 142-143. See also Botha (n 1) 194, 197, 209; Klein ‘Human dignity

in German law’ in Kretzmer and Klein (eds) The concept of human dignity in human rights discourse

(2002) 145 at 148. Barrett con cludes from the above that the court in Jordan v S 2002 6 SA 642

(CC) erred in deciding that prostitutes lose their dignity due to their undignified behaviour. Barrett

(n 8) 530, 538-539. Similar to various writers, Barrett also writes about dignity as inalienable,

irreducible, inviolable and/or unwaivable; he primarily relies on Kantian ideas. As mentioned below,

the consent to the infringement of one’s dignity could be regarded as a waiver thereof and might

therefore be at odds with this idea of an unwaivable dignity.

Wood ‘What is Kantian ethics?’ in Wood (trans and ed) Kant I: Groundwork for the metaphysics

10

of morals (2002) 157 at 163. Wood def ines an end as ‘anything we act for the sake of’ (n 6) 52.

348 (20 13) 28 SAPL

economic needs of the poor , the latter cannot be prohibited from consenting to

objectifying treatment in exchange for remuneration to fulfil those needs

themselves. The third approach is that people can and should be allowed to

consent to objectifying treatment. The purpose of this article is to demonstrate

11

the key aspects of this last approac h.

Three practices where consent to objectification is currenlty prohibited will be

considered, namely prostitution, dwarf tossing and sadomasochism. Although

12

argument could be made that participation in these activities is not always

voluntary, this article is aimed at those situations where valid conse nt has been

given.13

2 Dignity should not be regarded as supreme

2.1 Counterarguments to the idea of a supreme dignity

As stated above, the question of whether one has the freedom to consent to

objectifying treatment which infringes one’s dignity creates a tension between

human dignity and freedom. A conflict between constitutional values is usually

resolved by way of balancing. This solution is however problematic where dignity

is concerned. If, as mentioned above, dignity is regarded as the supreme value,

it can be argued that it should automatically trump any value conflict.

To argue that one should have the freedom to consent to the infring ement

of one’s dignity, however, supports an expansive understanding of freedom and

The South African Law Reform Commission (hereafter referred to as ‘the SALRC’) suggests

11

similar approac hes to prostitution, namely: criminalisatio n, partial criminalisation, regulation and

non-criminalisation. The foremost difference between these approaches and the approaches

discussed in this article is that in the article the second and third appro aches are combined.

Another differe nce is that in this article no definite distinction is made between legalisation and

decriminalisation. The focus is rather on whether somethi ng should be allowed at all. For this

reason both the second and third approach in this article recommend the regulation of objectifying

treatment, unlike the SALRC project, where legalisation does not necessarily involve regulation.

See SALRC (n 11) xii, 173, 186.

For dwarf-tossing as an example, see McCrudden (n 1) 656; Klein (n 9) 145-159; Botha (n 1) 194.

12

In Manual Wackenheim v France Communication no 854/1999, UN Doc CCPR/C/75/D/854/1999

(2002) para 2.1 (hereafter referred to in the main text as ‘Wackenheim’), dwarf-tossing is described

as an event where a person suffering from dwarfism, ‘wearing suitable protective gear’, allows

‘himself to be thrown short distances onto an air bed by clients of the establishme nt staging the

event (a discotheque)’. For the example of prostitution, see Fritz ‘Crossing Jordan: Constitutional

space for (UN) civil sex?’ (2004) SAJHR 230 at 230-248.

De Schutter provides four conditions for a va lid waiver of a right in ‘Waiver of rights and state

13

paternalism under the European Convention on Human Rights’ (2000) Northern Ireland Legal

Quarterly 481 at 491. They are applicable in this context since consent to the infringement of one’s

dignity can be equated with the waiver thereof. Whether one could waiver fundamental rights,

especially dignity, is often debated. For interpretations of the term ‘waiver’, which allows for the

waiver of fundamental rights, see Currie and De Waal ‘Application of the Bill of Rights’ in The Bill

of Rights handbook (2005) (5 ed) 39 at 39-40.

th