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Periodical article Periodical article Leiden University catalogue Leiden University catalogue WorldCat catalogue WorldCat
Title:Close encounters of the third kind: privacy, equality and the expression of homosexual preference
Author:Katz, Michael P.ISNI
Year:1996
Periodical:South African Journal on Human Rights
Volume:12
Issue:2
Pages:308-320
Language:English
Geographic term:South Africa
Subjects:constitutions
1993
homosexuality
Law, Legal Issues, and Human Rights
Sex Roles
External link:https://doi.org/10.1080/02587203.1996.11834910
Abstract:In South Africa, the policy of the law disfavours sexual encounters that occur under a variety of circumstances, including encounters to which both parties are male. It makes no difference whether in this case the parties are adults or minors, whether the encounter takes place in private or in public, or whether the parties have mutually consented to the encounter. The author examines the question of whether the 1993 interim Constitution operates to change any of these rules. The question is answered in two parts. The easy part of the answer is that it does. The difficult part is to find a persuasive constitutional principle on which the answer can be justified. As the law presently stands physical encounters between men and women, and women and women that take place in private are not prohibited. Yet the law proscribes the expression of sexual desire between partners whenever both of them are men. The question the paper addresses is whether, in order to achieve parity, it is possible to go beyond the definition of 'privacy' as proprietary, as institutional. The argument that it does takes the form of claims that the right to engage in sexual activity is a 'fundamental right and freedom': that it is an attribute of personality and identity and so is immune from regulation or prohibition by either the State or by the courts. Notes, ref.
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