Tuesday, 3 April 2012

Homosexuality and South African Law

(SACNS Africas News; The Witwatersrand Law Student)

Marc Aupiais  -  14:01  -  Public
Homosexuality and South African Law
My submittal to the Wits Student Law Journal, I doubt they'll publish a word of it! :

Notes the following statistics: opposition to homosexuality, homosexual: substance abuse, suicide statistics (accepting v non-accepting), HIV/AIDS Dementia statistics, gay teasing and suicide, child exposure to pornography, and effects. All in opposing a Constitional court minority argument, which was claiming that calling a straight man gay, with computer generated sex images, placed in a school and distributed to pupils, was as though not defamation, when it clearly is defamatory in the real world scenario in which it occurred.

About the author of this paper
Marc Aupiais is a 3rd Year Wits 4 year LLB student. He is Roman Catholic, White, went to a private school, and is heterosexual.

Why the focus on the issues of HIV and Homosexuality?
I believe that often the way in which media, and even the state portrays these issues, negates the real realities on the ground, I enjoyed penning an argument, which I knew no one else writing to the Wits Law journal would.


The Le Roux and Others v Dey (CCT 45/10) [2011] ZACC 4 case was contentious even among the judges deciding it and between them and every lower court concerned. The court upheld the appeal as so far as costs were concerned, reducing the R 45 000 award of the Supreme Court of Appeal to R 25 000, with mind to the fact that Dr Dey must have gained some satisfaction from the criminal proceedings against Le Roux and the others, and the success of these. The Court also ordered a novel recourse, demanding the applicants give Dr Dey an apology as part of the order.

While the Minority of Yacoob J and Skeweyiya J challenged traditional understanding of delict, taking a very strict narrow view of iniuaria, and a wide view of the paramount rights of children, and the Cameron J judgement took an unusual view of the law of defamation, the Majority, as articulated by Brand AJ upheld the ordinary law of delict.

The awarding of Costs was agreed with by both the Cameron J (and Froneman J) judgement and by the Majority. The major difference from normal cases in this is the affirmation that only one of two actions based on iniuaria can succeed, that what is wrongful in defamation is also for the objective factor of injury to dignity wrong, and that an apology may be ordered by a court from those who infringe the contumelia of another.

It dealt with the law of delict, and that of insult in relation to offenses committed against figures of authority by children, with the novel position of a court enforced apology, the impact of criminal proceedings on delictual satisfaction, and with the question of whether or not portraying a man in a homosexual sex act was itself defamatory in the modern constitutional sense, with some even surprising resultant statements from certain judges.

The issue before the court also extended to judgement of the limits of satire before it is legally reprehensible, and computer generated images as they portray defamatory statements.

I agree with the finding of all the judges that the image was clearly and crudely manipulated, and thus could not possibly be confused with an actual photograph of the respondent and the principal. Yacoob J, however seems to suggest that this was enough to discount it, as children in his view ought to have a right to practice satire, even when it impacts terribly on the view of and self esteem of a member of the community.

It would be odd if he were to also suggest this if it were done to other children, but his argument based on assuming immaturity and further rights would shockingly suggest this as allowed if drawn to the logical conclusion, and also: given his emphasis on the punishment system at the school being enough, exclude the independence of the judiciary, where the only recourse would be a possibly biased school system as recourse.

Yacoob J correctly says that the message of the image ought be determined before it is declared defamatory, however his suggesting that the image may have been taken without the parties knowing, or that homosexuality is accepted in society, as it is constitutionally protected, ignores both the fact that it is a satire much as a cartoon is, and that the original gay bodybuilders are not involved in the trial. Such a manipulation ought to be considered as a cartoon is, on what message it portrays specifically about the respondent. This is a message of impropriety, open and lewd sexuality, and an aim to please an unknown viewer.

As Brand AJ rightly points out, these factors all rightly cause detriment to the image of the respondent. Also, as I will demonstrate below, the alternate claim of the respondent ought to have some acceptable basis in the law of delict in South Africa, given the real impact on the respondent’s life, and not constitutional court modelling.

I agree almost fully with the judgement of the majority, succinctly set out by Brand AJ, while also taking into account some of the good points of Cameron J, which however, I believe, misinterpret correct application of the facts.

Traditionally injury to dignity generally is used when an insult was private or not publically demeaning also, as Brand AJ points out, the issue of dignity is encompassed in the fuller delict of Defamation. Cameron J, as I will explain fully below, creates the contrary concept that an article widely circulated can be enforceable insult to dignity without being defamation.

Yacoob J’s judgement, however, is vaguely based on law, and almost solely based on a fresh and new interpretation of the Constitution, which I hope to show oversteps the mark of what the Constitutional rights to freedom of Expression, and the special protection it affords of the interests of Children, allows. To make this argument, he instead of using the Constitution, reads into it the International Convention on the rights of the Child, ignoring South African case law and precedent.

Yacoob J, claims that delict differs: when the person defamed or insulted is powerful, and the offender weak. However, this would have very adverse effects on society. If an authority figure has no recourse in the courts of law, they may seek other means, such as their very authority, which is more open to abuse than a judge’s discretion and would be less fair on the victim in the case of vindictive authority figures who cannot gain the satisfaction of justification in court, and may never cease to feel a need of vindication.

Certainly, this case would demonstrate, that nothing short of a court of law, will satisfy at times, and this is necessary, to insure that respect for law exists.

Furthermore, figures such as cabinet ministers, or our president would have no recourse to law, possibly pushing towards corruption and the opposite of reconciliation where delicts against the powerful occur.

This approach of Yacoob J further judges the victim, not the delict. Such a limiting approach of comparing victim to perpetrator of a delict, further judges on the basis of wealth, denying some justice based on their job options, and job choices. This reminds one of the criticisms of the law of rape, which more liberal individuals have, criticisms which would no doubt start to extend to delict. Like those who do not report rape for fear, such an approach of judging the victim, could cause individuals to fear approaching the court.

I by no means am suggesting rape laws be changed or unchanged, merely pointing out that Yacoob J, would be bringing further dilemmas into the law of delictual liability, which are not based on the fault of of perpetrator, but the deemed “worthiness” of the victim. Teachers ought not be discriminated against for pursuing a legal profession such as teaching.

Surely, a breakdown in judicial overview of the actions of people in schools, would have the opposite of the effect intended. The true effect would seemingly then emerge of teaching children to gradually enter further and further into the slippery slope of infringing others rights, allowing gangs and the school peer pressure so emphasized as pertinent in this case: to gain more power over individuals who may otherwise be restrained by law.

This could well then create habits among South Africans, as the lack of enforcement of speeding does, whereby when the children are finally accountable, the charge is far worse.

If an act is not actionable in Delict, how then could it be criminally actionable, given that the reason for excluding delictual wrongfulness is that these two judges choose to interpret the constitution in favour of the children merely for their age? Is age to be an excuse for every offense, and if so, are we then to judge more softly, when offenses increase, due to lack of enforcement, and thus punish the individuals more harshly when they finally turn their ill advised sense of humour against the weak, who likely could not afford court recourse.

Yacoob J, goes on with his exposition, claiming that if as it is legal in South Africa for men to engage in homosexual acts, and even photograph them, that portraying a man in these circumstances is not wrongful, despite multiple suicides in the media after men’s or others’ private moments were revealed to the public, and the high suicide rate, even where homosexuals feel society accepts them, as noted below. Also, Yacoob J, seems to ignore the fact, that children are being exposed to sexualized images, which emerged as pornography. Also, the work relationship between the men concerned, the alleged office impropriety, and the fact that most South Africans still consider homosexual acts[1], and public indecency (a crime) to be immoral, are ignored.

He further, in agreement with other judges claims that where there are two meanings of an article, one defamatory, the other innocent, where either are as likely, or the innocent holds greater weight, that the action for defamation cannot succeed. He further judges the article based on the source of the offence and not the article itself, claiming that it was a schoolboy prank and therefore not serious or to be taken seriously. As not wrongful in his view, Yacoob J dismisses the defamation claim. He is here, clearly ignoring the real damage to a man’s reputation by any allegation whatever the source of office impropriety, and the clear allegation of hypocrisy, the school teacher’s seeming real concern.

The proper reason a schoolboy prank may not be actionable, ought to be because it is not serious, not simply because those pulling a very serious delict off are schoolboys. Yacoob J also ignores the very serious implication that it was not only Dr Dey who was exposed to the infringement of his rights, but that children of all ages saw what was an undoubtedly sexual and pornographic image in an environment their parents had hoped would be free from accidental exposure to such images. No harmless schoolboy prank has permanent impact of children’s development. There are psychological studies showing the detriment of exposure to pornographic or sexual images on children[2].

He further misinterprets the idea of the reasonable plaintiff in determining whether injury to personality occurred. He looks not at whether the reasonable person would be insulted, but instead uses the reasonable expert test applied to defendants not plaintiffs, and asks whether it is reasonable for a Deputy Principal to take a matter to court, instead of the correct question as to whether a reasonable person would be insulted by the creation of pornographic satire based on their person. He essentially judges the plaintiff, as though there were a duty to act in a certain way to qualify for rights enshrined in the constitution, as though they were conditional on Dr Dey being a certain type of Deputy Principal.

Skeweyiya J, who along with Yacoob J dismissed the claim and upheld the appeal in entirety, further emphasized the rights of children. Both seem of the view that holding children accountable in delict for defamation or injury to dignity would be absurd. Brand AJ in the majority however, correctly realises that when dealing with damage to property or to the body, children when they have capacity, are called to account, and that this form of delict in no different.

In Britain where children have the rightsYacoob J desires, youth violence is a major problem[3]. In one case, a teacher responded by assaulting students with a dumbbell[4], and was found innocent of attempted murder and attempting wilful grievous bodily harm against the student. It is unlikely he would have taken the law into his own hands, or in the view of British jurisprudence, acted without will, if he had considered himself to have a civil remedy, from a court entirely independent from his place of work, and a job he needs for his salary.

Both the Yacoob J and Cameron J findings focus much energy on discounting the alternate claim by the plaintiff that the image portrays him as homosexual. Given this claim was only in the alternate, Brand AJ affords it little time, seemingly realising that the respondent would have been just as insulted if portrayed thus with a female member of staff.

Further, the average South African man would still find it insulting and defamatory for his sexuality to be called into question, given its role in procuring a future partner. Both homosexuals and heterosexuals would be insulted, and added onto this is the implication that the individual attacked is a liar. Both of these statements tacitly there, would be obvious to the average South African.

Also, given that proportionally massive 19% [5]of men who have sex with men in America, have HIV/AIDS according to the CDC, and 44%[6] don’t know of their status, such health issues, and stigma affect a person’s career options de facto, this will likely affect employability.

Even insinuation in any matter such as office impropriety, whatever the source, also has a deep impact in the reality of the labour market, and society in general. If 78%[7] of South Africans, as noted by the HSRC in 2004 , believe homosexual acts always immoral, even a homosexual being labelled as homosexual will have an impact on how he is viewed by society.

An American study looking into 34 countries found that +-24% of homosexuals in hostile environments experienced suicidal thoughts, while slightly less +- 20% of homosexuals had been suicidal in homosexual accepting nations and environments[8] than those where crimes, and bullying, and notably teasing, were performed against such individuals, or where they otherwise felt not accepted[9].

15% to 30% of patients diagnosed with HIV/AIDS, according to Lancet, develop AIDS Dementia, severely affecting mental abilities[10]. The state may forbid discrimination; this does not mean that the average South African won’t think such a statement as dealt with in the case, to be defamatory.

Name calling of children as “gay”, also seems a common form of bullying in schools, with the word “gay” having come to be slang for pathetic and synonymous with “retarded” amongst some youth, and directly contributing it would seem, to suicide rates[11].

The alternate claim itself, rejected by all the judgements, in fact should have succeeded. The use of homosexuality by the applicants was to belittle the teacher, through also mocking homosexual behaviour, and adding to existing societal views[12].

It would be actionable if someone’s HIV positive status were revealed, even though the diseased are protected by the Constitution, as with defaming by lying on disease status, given the real negative impact on a person’s life, and the medical and psychological factors society is aware of. I say this especially to combat the views of Yacoob J who confuses law with the morals and values of society and negates, in his view, their perceptions of matters (as noted above).

Cameron J claims that the image would not defame Dr Dey as it would be seen rightly as a school boy prank. The problem with his finding on the reasonable person seeing it as defamatory or not lies in the fact that even the most reasonable South African man or woman, would remember the image when seeing Dr Dey, and associate him with promiscuous, open sexuality, and also with other stigmas[13] attached to homosexuals.

Furthermore, if themselves not affected would openly acknowledge that in their view the respondent had been defamed. In fact, given that the image aims at mocking Dr Dey, though through lewd portrayal of homosexuality, ought it not be seen more seriously as though hate speech against a protected group, after all it could not mock Dr Dey without mocking said group firstly.

This is hardly then a harmless schoolboy prank; this is defamation, and hate speech to add to it, given the mockery of a protected group. Also, given that teasing and the like, is directly related to homosexual suicide rates, would it not be better not to focus on making their seeming differences in behaviour public. Would the image, if it was of Jewish community leader, or a Catholic priest or the boy’s dominie be acceptable?

Cameron J says that while not defamed, as no one in his view would logically believe the very graphic and publicised image had any basis, despite its very allegation being of hypocrisy, he believes the respondent’s dignity was still somehow infringed.

Brand AJ questions such, how can material that in no way reduces the view of a man in the eyes of the reasonable observer, be reasonably taken offense of by the man?

Despite declaring that the reasonable observer would in no way see Dr Dey’s image tarnished, Cameron J claims a reasonable man would consider himself reduced. Brand AJ more in line with precedent, declares such: a complete contradiction in terms.

The reasonable person can’t say a person’s image is both reduced and not reduced at all. However, where the facts involved were known only by the offender and the offended, Cameron J’s position would have merit.

The majority judgement solidified the existing law of delict, and furthermore the new remedy of an apology was introduced. Unfortunately, as demonstrated above, none of the judgements took into account the possible aspect of the case, and all seemed to accept it as not wrongful for the applicants to mock a man through associating him with a constitutionally protected minority in a derogatory manner.

In South Africa, because homosexual civil union are legal, it is thought that our laws are liberal, and fair to this specific minority group, however, statistics show that homosexual unions, internationally, are much shorter[14] (except in one European nation), than their heterosexual counterparts, and have a fidelity rate of about 5% in marriage like unions[15]. In the American statistics I accessed, it was in fact found that very few homosexuals even actually enter civil unions[16].

Perhaps, if more efforts were made towards combating media perceptions, instantly associating homosexuality with promiscuity, and encouraging homosexuals to “come out”, and to enter sexual relationships, or oppose their religious views, and less efforts were made at combating any concept which notes the real predicament of this minority, and less resources were devoted to the polarization of society which focussing on introducing marriage like structures to homosexuals, and of naming opponents of these homophobic, as with any who object to being called what they are not, such as Dr Dey, then more could be done to address the real health and psychological needs of this population group.

Statistic show[17], that while information promoting condom use[18], often has the opposite effect, abstinence education really works, and can prevent risky sexual behaviour[19].

There are only massive HIV infection rates, in societies where polygamy[20] is acceptable among heterosexuals[21], such as in sub-Saharan Africa, and among homosexual population groups.

[1] HSRC (HSRC Review Volume 2 No 03 September 2004) accessed from http://www.hsrc.ac.za/Document-39.phtml accessed on 14th August 2011
[2] Review Article Health Effects of Media on Children and Adolescents by
Victor C. Strasburger, MDa, Amy B. Jordan, PhDb, Ed Donnerstein, PhDc Published online March 1, 2010; PEDIATRICS Vol. 125 No. 4 April 1, 2010; pp. 756 -767; (doi: 10.1542/peds.2009-2563)http://pediatrics.aappublications.org/content/125/4/756.full

Article: Unwanted and Wanted Exposure to Online Pornography in a National Sample of Youth Internet Users by Janis Wolak, JD, Kimberly Mitchell, PhD, David Finkelhor, PhD; - Author Affiliations : Crimes against Children Research Center, University of New Hampshire, Durham, New Hampshire; PEDIATRICS Vol. 119 No. 2 February 1, 2007; pp. 247 -257; (doi: 10.1542/peds.2006-1891)http://pediatrics.aappublications.org/content/119/2/247.abstract?related-urls=yes&legid=pediatrics;119/2/247 the article further notes: 'More research concerning the potential impact of Internet pornography on youth is warranted, given the high rate of exposure, the fact that much exposure is unwanted, and the fact that youth with certain vulnerabilities, such as depression, interpersonal victimization, and delinquent tendencies, have more exposure'
[3] World Health Organization: ‘Violent Britain – People, Prevention and Public Health’http://www.who.int/violence_injury_prevention/media/news/21_03_2005/en/
[4] Telegraph UK 'Teacher who attacked pupil with dumbbell cleared of attempted murder' 'A teacher who attacked a pupil with a dumbbell has been cleared of attempted murder and causing grevious bodily harm with intent.' by Telegraph staff 29 April 2010http://www.telegraph.co.uk/news/uknews/crime/7652985/Teacher-who-attacked-pupil-with-dumbbell-cleared-of-attempted-murder.html
[5] Center for Disease Control HIV among Gay, Bisexual and Other Men Who Have Sex with Men (MSM) accessed fromhttp://www.cdc.gov/hiv/topics/msm/index.htm accessed on 14th August 2011
[6] Ibid.
[7] HSRC accessed from http://www.hsrc.ac.za/Document-39.phtmlaccessed on 14th August 2011
[8] 20.37 in affirming environments 25.47% in environments which were negative towards the group, the gap is similar to the ordinary suicide rate in heterosexuals: of about 4% incidence. see note 9 on the homosexual statistics, and the heterosexual rate quoted
[9] Hatzenbuehler M L The Social Environment and Suicide Attempts in Lesbian, Gay, and Bisexual Youth Pediatrics 2011 that is Hatzenbuehler M L The Social Environment and Suicide Attempts in Lesbian, Gay, and Bisexual Youth accessed fromhttp://pediatrics.aappublications.org/content/early/2011/04/18/peds.2010-3020.abstractaccessed on 14th August 2011
[10] The Lancet, Volume 349, Issue 9053, Pages 692 - 695, 8 March 1997 doi:10.1016/S0140-6736(96)10178-1 online:http://www.thelancet.com/journals/lancet/article/PIIS0140-6736(96)10178-1/abstract 'Unique monocyte subset in patients with AIDS dementia' by Dr Lynn Pulliam PhD a b , Ron Gascon BS a c, Marcia Stubblebine MS a, Dawn McGuire MD d e, Michael S McGrath MD a c
New England Medical Journal 'REVIEW ARTICLE Dementia Associated with the Acquired Immunodeficiency Syndrome' by Stuart A. Lipton, M.D., Ph.D., and Howard E. Gendelman, M.D: N Engl J Med 1995; 332:934-940 April 6, 1995http://www.nejm.org/doi/full/10.1056/NEJM199504063321407 also affirms the condition.
[11] “Another survey of more than 7,000 seventh- and eighth-grade students from a large Midwestern county examined the effects of school climate and homophobic bullying on lesbian, gay, bisexual, and questioning (LGBQ) youth and found that
· LGBQ youth were more likely than heterosexual youth to report high levels of bullying and substance use;
· Students who were questioning their sexual orientation reported more bullying, homophobic victimization, unexcused absences from school, drug use, feelings of depression, and suicidal behaviors than either heterosexual or LGB students;
· LGB students who did not experience homophobic teasing reported the lowest levels of depression and suicidal feelings of all student groups (heterosexual, LGB, and questioning students); and
· All students, regardless of sexual orientation, reported the lowest levels of depression, suicidal feelings, alcohol and marijuana use, and unexcused absences from school when they were
o In a positive school climate and
o Not experiencing homophobic teasing [4].”
'Lesbian, Gay, Bisexual and Transgender Health - Youth' by Center for Disease Control and Prevention
[12] Center for Disease Control Lesbian, Gay, Bisexual and Transgender Health accessed from http://www.cdc.gov/lgbthealth/youth.htm on 14th August 2011
[13] The Lancet, Volume 374, Issue 9687, Pages 416 - 422, 1 August 2009 doi:10.1016/S0140-6736(09)61118-1 'Men who have sex with men and HIV/AIDS in sub-Saharan Africa' by Dr Adrian D Smith MSc a , Placide Tapsoba MD b, Norbert Peshu MPH c, Eduard J Sanders PhD c d, Prof Harold W Jaffe MD ahttp://www.thelancet.com/journals/lancet/article/PIIS0140-6736(09)61118-1/abstract

Catholic News Agency 'Children with same-sex parents prone to suicide, study reveals' 19th February 2010http://www.catholicnewsagency.com/news/children_with_same-sex_parents_prone_to_suicide_study_reveals/ : noting 'Research conducted by George A. Rekers, Professor of Neuropsychiatry and Behavioral Science at the University of South Carolina, the presenters noted that “boys and girls adopted by lesbian and homosexual couples show a greater level of stress than that which is already generated by their status as orphans or children abandoned by their biological parents.” They added that this situation “produces diverse trauma and behavioraldisorders that can even lead to suicidal tendencies or attempts.”'
[14] ‘2003-2004 Gay/Lesbian Consumer Online Census’ - Family Research Council ‘Comparing the Lifestyles of Homosexual Couples to Married Couples’ http://www.frc.org/get.cfm?i=IS04C02
[15] ‘Laumann, The Social Organization of Sexuality, 216; McWhirter and Mattison, The Male Couple: How Relationships Develop (1984): 252-253; Wiederman, "Extramarital Sex," 170.’ - Family Research Council ‘Comparing the Lifestyles of Homosexual Couples to Married Couples’http://www.frc.org/get.cfm?i=IS04C02
[16] “U.S. Census Bureau, Married-Couple and Unmarried-Partner Households: 2000, 2; Black, "Demographics," 141; U.S. Census Bureau Census 2000 Summary File 1; Bayles, "Vermont's Gay Civil Unions," 1; Census 2000 Special Reports, 4; Shane, "Many Swedes Say 'I Don't,'" 1; "ORL Backgrounder," 1.”- Family Research Council ‘Comparing the Lifestyles of Homosexual Couples to Married Couples’http://www.frc.org/get.cfm?i=IS04C02
[17] Vol. 164 No. 2, February 2010 'Efficacy of a Theory-Based Abstinence-Only Intervention Over 24 Months' 'A Randomized Controlled Trial With Young Adolescents' by John B. Jemmott III, PhD; Loretta S. Jemmott, PhD, RN; Geoffrey T. Fong, PhD Arch Pediatr Adolesc Med. 2010;164(2):152-159. http://archpedi.ama-assn.org/cgi/content/short/164/2/152?home
[18] Washington Post ‘Condoms, HIV-AIDS and Africa - The Pope Was Right’ by Edward C. Green 29 March 2009http://www.washingtonpost.com/wp-dyn/content/article/2009/03/27/AR2009032702825.html
[19] 'Impact of the Choosing the Best Program in Communities Committed to Abstinence Education' by Lisa Lieberman, Haiyan Su, Published March 22, 2012, doi: 10.1177/2158244012442938 SAGE Open March 22, 2012 2158244012442938http://sgo.sagepub.com/content/early/2012/03/21/2158244012442938.full
[20] "... prevalence of polygamy and low perceptions of risk among vulnerable groups have contributed to the rapid spread of the epidemic"- World Health Organization 'NIGERIA Estimated number of people needing antiretroviral therapy (0-49 years), 2005:' December 2005http://www.who.int/hiv/HIVCP_NGA.pdf
[21] The Lancet, Volume 374, Issue 9687, Pages 416 - 422, 1 August 2009 doi:10.1016/S0140-6736(09)61118-1 'Men who have sex with men and HIV/AIDS in sub-Saharan Africa' by Dr Adrian D Smith MSc a , Placide Tapsoba MD b, Norbert Peshu MPH c, Eduard J Sanders PhD c d, Prof Harold W Jaffe MD ahttp://www.thelancet.com/journals/lancet/article/PIIS0140-6736(09)61118-1/abstract

1 comment:

  1. This is such a powerful article not only meant for teachers and homosexuals alike, but for a variety of non-governmental organizations or even funding institutions to act on this matter accordingly. mortgage deals for teachers


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