Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
11 March 2011

Is the reasonable person a homophobic prude?

Is it reasonable to be a prude who thinks of sex as always being somewhat dirty and depraved, as something that must remain hidden and covered up at all cost? More pertinently, is it reasonable not to have a sense of humour? In the Laugh it Off case, dealing with the Black Labour/White Guilt T-shirt, Justice Albie Sachs famously asked: “Does the law have a sense of humour?” In that case the Constitutional Court seemed to have agreed that the law can have a sense of humour.

But things seem to have changed up on Constitution Hill and this week the majority of judges of the Constitutional Court found that three schoolboys who played a prank on a deputy headmaster could be successfully sued by that deputy headmaster for defamation. In the case of Le Roux and Others v Dey the majority (per Brand AJ) argued that it was per se defamatory for schoolboys to publish a manipulated picture, described in the following – laughably prudish – manner by Brand AJ:

What the picture explicitly shows is a frontal image of two men, both naked, sitting very close together on a couch. Their legs are wide open and the leg of the one is resting across the leg of the other. The hands of both are obviously in the region of their own genitals, but both the hands and the genitals are covered by an image of the school crest. The position of the hands behind the crest is suggestive of sexual stimulation or some other sexual activity. In short, the vision created is one of two promiscuous men who allowed themselves to be photographed in what can only be described as a situation of sexual immorality, which would be embarrassing and disgraceful to the ordinary members of society. The faces of the two men are electronically cut out and replaced by those of the school principal, on the one figure, and that of Dr Dey, on the other. The manipulation of the picture in this way is obvious and crude. No reasonable person could ever think that the bodies on which the faces are pasted were actually those of the principal and Dr Dey.

I find this description of the picture rather extraordinary. It reveals perhaps more about the moral universe inhabited by the author of the Constitutional Court judgment than he might have realised when he wrote the passage quoted above. The majority seems to assume that two men who have a photograph taken of themselves while they engage in sexual acts are necessarily and always promiscuous and that they are therefore engaged in sexually immoral acts.

While the majority judgment seems to suggest that the fact that the picture depicts two men (as opposed to one man and one woman – the deputy headmaster with Pamela Anderson, say) was irrelevant, it is not so clear from the passage quoted above that this logic is adhered to throughout the judgment. The idea that when two men are depicted as engaging in sexual acts one can reasonably assume that they are promiscuous, defies logic. While many South Africans will have this view, the meaning of the pictures cannot be judged according to how excessively prudish and homophobic members of the public will interpret the picture.

As Brand points out, when deciding whether a statement was defamatory one must ascribe to it the ordinary meaning given to the picture in its context by a reasonable person.  The test to be applied is an objective one. In accordance with this objective test the criterion is what meaning the reasonable reader of ordinary intelligence would attribute to the statement. In applying this test it is accepted that the reasonable reader would understand the picture in its context and that he or she would have had regard not only to what is expressly conveyed but also to what is implied. 

This leads one to pose the following set of questions: who is this reasonable viewer conjured up by the court and what are the values according to which such a reasonable viewer will judge the meaning of a picture? Will such an ordinary reasonable viewer have a sense of humour? Will he or she take into account the fact that the picture was produced by school children and that the faces on the picture clearly did not belong to the bodies on the picture but were added to them by school children?

Would such a reasonable viewer “instinctively” jump to the conclusion that where two men are depicted as engaging in sexual activity they are promiscuous and are engaged in immoral acts? Will  the reasonable person be imbued with the values enshrined in the Constitution or will he or she (like the majority of South Africans) harbour explicit or latent prejudices about gay men and jump “instinctively” to conclusions based on the stereotypes and prejudices that many South Africans (and perhaps also some judges?) hold about gay men?

The construct of the reasonable person is of course a legal fiction. The reasonable person is a fictitious person created by the judge to provide a lens through which to evaluate the picture or publication. Where a judge constructs the reasonable person as someone who is prudish beyond belief and jumps to the conclusion that where two men are depicted as engaging in sexual activity that reasonable person would believe that they are promiscuous and engaged in immoral activity, what the judge in effect is doing is telescoping his or her own beliefs, sexual anxieties, feelings of moral superiority and other prejudices on to the legal construct of the reasonable person to justify his or her own judgment and to provide that judgment with the veneer of objectivity.  

That is why I would argue that the judgment of Brand AJ may perhaps be read as an essay on the homophobic stereotypes that are still deeply embedded in the minds of a majority of South Africans. That is also why the judgment may be saying more about the impossibility of judges constructing and applying a truly “objective” standard of the “reasonable person”, than it may be saying about the defamatory nature of the image under discussion. 

As far as I can see, the reasonable person constructed by the majority of the Constitutional Court is a person who “instinctively” assumes that men depicted as engaging in sexual acts are promiscuous and that what they are doing is immoral – without ever having to engage with concepts such as promiscuity and immorality. The reasonable person cannot define these concepts, but he or she knows it when he sees it because of a gut feeling of revulsion experienced at seeing such a picture.

It is unclear why the majority of the court did not provide a cogent argument to justify its conclusion that sexual immorality was at stake here. Neither is it clear why the court did not fully explain how it came to the conclusion that the two men depicted in the picture were promiscuous.

As far as it is possible to answer these questions based on the reasoning of the court, one might conclude that the Constitutional Court came to the conclusion that whenever a picture is taken of two people engaged in sexual acts (whether the picture is taken by themselves or by someone else), this turns a private and acceptable (if somewhat strange and perhaps slightly shameful) act into a public and hence depraved and immoral act.

Maybe in Bloemfontein – as elsewehere in South Africa – many people think in this way, but in a constitutional democracy in which the narrow and moralistic, religiously-inspired, values are not supposed to be enforced by the law, one can hardly argue that the legal construct of a reasonable person could jump to such a conclusion. But this is exactly what the Constitutional Court – at least the majority – seemed to have done here.

In the absence of an explanation, it is not far-fetched to wonder whether the majority of the court was not influenced by its own ambivalent (if perhaps repressed) assumptions about gay men. After all, the stereotype that all gay men are always promiscuous and that gay men are always engaged in immoral acts are widely held in our society. Could it be that because the two men were photographed and did not care to hide the fact that they might enjoy the sexual company of each other (hence that the two men were not ashamed of their homosexuality and the sex they were enjoying), made the “perversion” and “immorality” just so much more shocking for the so called “reasonable person” constructed by the majority of the Constitutional Court.

What I take from this judgment is that for the reasonable person constructed by the Constitutional Court, sex and sexuality is by its vary nature shameful and degrading, that as long as sex (especially sex between two men) remain hidden in the privacy of these men’s bedroom one could still tolerate the immorality of it all, but as soon as the sexual engagement is made public it becomes so shameful, depraved and immoral that any reasonable person would conclude that it would be deeply hurtful to anyone if one ever suggested that they could possibly have been engaged in such activity.

After having concluded that the reasonable person would have interpreted the picture in the way described above, the court had to decide whether the image was defamatory. In doing so, the majority of the Constitutional Court argued that what had to be answered was the question whether any reasonable observer would infer some association between the two teachers, on the one hand, and the situation described in the picture, on the other. The majority found that the mythical reasonable observer would do just that:

After all, their faces were directly linked to the bodies. In my view that renders the picture difficult to distinguish from a caricature or a cartoon: in all these cases it is obvious that the person identified is not an actual depiction of that person, but that there is some association between that person and what the picture conveys.

According to the Court the reasonable person would ask: why?  “Why are the principal and his deputy, Dr Dey, associated with persons behaving in a lewd and indecent way”? (Once again, note the assumption that when two men are depicted as engaging in sexual activity this must always be assumed to be lewd and indecent.) Why are their faces not pasted on, say, the bodies of ballet dancers, the court wanted to know.

The answer to these questions that, in my view, instinctively springs to mind is this: the whole purpose and effect of the association created by the picture is to tarnish the image of the two figures representing authority; to reduce that authority by belittling them and by rendering them the objects of contempt and disrespect; and to subject these two figures of authority to ridicule in the eyes of the observers who would predominantly be learners at the school. This means that the average person would regard the picture as defamatory of Dr Dey.

The majority of the Constitutional Court somehow did not “instinctively” jump to the conclusion that the picture was manufactured and distributed by schoolboys and that they were engaged in a schoolboy prank. Could it be that the judges were so horrified by the depiction of two men engaging in sexual activity (this “lewd”, “indecent” and “immoral” behaviour – siesa!) that the majority could not conceive of the schoolboy prank in any way other than that it was aimed at tarnishing the image of the headmaster and his deputy and that it had achieved this purpose.

Of course, I would argue that a reasonable person imbued with the values of the Constitution, a person who did not instinctively recoil from depictions of gay sex but understood that sexual activity was a rather enjoyable and mostly positive experience – whether the sex occurred between two men or between a man and a woman – a person who showed some understanding and tolerance for the world of pranks and jokes inhabited by schoolchildren, that such a person might well have concluded that the images were not defamatory because they did not in fact lower the esteem of the headmaster and deputy headmaster in the eyes of any reasonable person.  (Athough it must be conceded that the schoolboy prank probably did lowered the esteem of the headsmaster and the deputy headmaster in the eyes of humourless homophobes and bigots.)

But the majority of the Court found that the fact that this was a schoolboy prank was of little use to the defendants. The real question, argued Brand AJ, is whether the reasonable observer – perhaps, while laughing – will understand the joke as belittling the plaintiff; as making the plaintiff look foolish and unworthy of respect; or as exposing the plaintiff to ridicule and contempt.

Once one has assumed that sex between men – unless hidden away in the privacy of a bedroom – is always promiscuous and immoral, the answer to this question seems pretty obvious. No wonder the majority of the court found in favour of the deputy headmaster who (revealingly) seemed to have been rather disproportionately upset by the suggestion that he might have engaged in same-sex sexual acts.

2015 Constitutionally Speaking | website created by Idea in a Forest