Conceptualising the sexually explicit as free expression: The distinct legal and political challenges presented to a liberal feminist critique in a South African constitutional context

Abstract

This article explores critically whether the liberal feminist understanding of women’s situation under conditions of patriarchy (in its critique of liberal philosophy) has the potential to uncover the complex nature of the (legal) harm inherent to gender-specific sexually explicit material. By virtue of the fact that liberal feminism has emerged from classical liberal theory, this school of feminism appears to struggle in balancing the interests of a free, equal and democratic society with the pressing interests of women to live in a society which is free from both direct and indirect gender-specific violence. Liberal feminism’s often uncritical acceptance of classical liberal principles would appear to render it virtually incapable of appreciating (female) sexuality as a social construct. And as a consequence, sexually explicit speech is not per se deemed sexist or harmful to women, because mere images are not understood to have the capacity to cause harm. Accordingly, to justify legal intervention, harm must either be imminent and directed against women specifically, or must constitute the advocacy of hatred that constitutes incitement to cause harm. Seen in this context, this article seeks to determine whether liberal feminism could conceptualise sexually explicit material as a violent mode of expression within a South African constitutional context.