Sex work in South Africa must be decriminalised —in a democratic society, this cannot be put on the back burner any longer.
The decriminalisation of sex work would be a progressive and proactive step forward in supporting the rights that are enshrined in our Constitution.  It would limit the risk of HIV infection for sex workers and go a long way towards curbing the abuse that they experience at the hands of customers, employers, and the police.

By Janie Booth and Victoria Wang

Gender-based violence is an injustice affecting many women and girls worldwide.  The problem is of significant magnitude and South Africa records some of the highest rates of sexual violence.  Violence against sex workers is particularly pronounced.

I was therefore greatly dismayed when the African Law Commission (ALC) released its long-awaited Report on Sexual Offences: Adult Prostitution on 26 May 2017, recommending that sex work should be fully criminalised. The report is not only outdated, having taken over three years to be released, but it completely ignores human rights research supported by recommendations by international instruments such as the CEDAW and Maputo Protocol.

Last year the Women’s Legal Centre (WLC) launched a report at the International Aids Conference on police abuse of sex workers.  It analysed the cases of sex workers who approached the WLC between 2011 and 2015 for information, guidance, and legal assistance to access their rights. It highlights the gap between the rights enshrined in the South African Constitution and the treatment of sex workers.

We feel that a legal framework that criminalises sex work greatly increases the vulnerability of sex workers to violence and reduces the likelihood that such violence against them will be reported.  Very few perpetrators of crimes against sex workers are ever brought to justice.  According to a systematic review of the research on violence against sex workers, many factors correlate with increased violence against them. The youth, homeless individuals, those who have been arrested for “prostitution”, migrant sex workers, indoor and street-based sex workers are especially at risk of violence.

Criminalisation is an expression of stigma against sex workers, and this is fuelled by the police. Criminal status increases their vulnerability to violence, and worsens the already widespread gender-based violence, is rife in South Africa. The current legal framework marginalises sex workers to the fringes of South African society, where they are easy targets of abuse.

Decriminalisation is a United Nations target for all countries and has been shown to be the most effective method for remedying such injustice. However, the only country to have fully decriminalised sex work is New Zealand. New South Wales has the most liberal legislation in Australia with near decriminalisation—sex work, operating a sex work business and being a sex worker are all legal, provided this is done according to NSW laws and regulations.

Street-based and indoor sex workers in New Zealand report better relationships with the police and feeling safer.  Contrary to initial fears, decriminalisation has not led to the overall growth of the industry nor has trafficking increased.

Decriminalisation reduces stigma and violence, increases access to health and legal services, ensures less exploitation from controllers, and enables sex workers to engage in fair labour practices. It facilitates the prosecution of those involved in under-age sex work.

South African law should be reformed in line with these goals to ensure that human rights for all is achieved. Unfortunately, the governing party in South Africa, the African National Congress (ANC) has been dragging its heels for 20 years on this issue. Early this month at the ANC National Policy Conference the party caused another blow against decriminalising sex work after delegates from Gauteng tried to push for inclusion of decriminalise sex work in the organisation’s social transformation document, which will be up for discussion and may become ANC policy at its conference in December.

Lindiwe Sisulu, chair of the ANC’s subcommittee on social development said the reason for blocking the proposal was that Gauteng delegates had not used the right channels to discuss the proposal, which is to criminalise what men do as opposed to what the women do (partial decriminalisation).

Partial decriminalisation of sex work as in Sweden, is a secondary recommendation in the ALC report is not an effective solution and will not work in South Africa. The Swedish Model—regarded by many as a failed experiment in social engineering—allows workers to sell sex without facing prosecution, but their clients can be arrested and prosecuted for buying sex and sex sellers are encouraged into rehabilitation programmes. This will also force sex workers to work underground to protect their clients.

The Swedish model has made conditions worse for many Swedish sex workers instead of protecting them as it was intended to do.  It displaces them to isolated areas, making it almost impossible for them to rely on the police for protection and making it difficult for them to screen and negotiate the terms of the transaction—particularly about the use of condoms.

It also assumes sex workers are victims.  The clients of sex workers—usually men—are demonised—and it ignores the fact that many sex workers make a conscious choice for this work.  Sex work offers them an income, flexible working hours and independence in a context often characterised by poverty, hardship, or the lack of viable alternative options.  Laws like this limit the freedom and livelihood of sex workers, portray clients in a bad light and criminalise adult consensual sex.

There is little evidence that the Swedish Model has worked.  Although lawmakers in Sweden argue that it is a great success, studies show that not much has changed. It neither protects the rights of sex workers nor makes society safer.

We should choose laws that empower and protect sex workers, mothers, daughters and sisters who are also human beings and are an extremely vulnerable group, as well as their clients. We need laws that will improve their working conditions and respect the South African Constitution, which enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom.

In a country with exceptionally high levels of violence and gender based violence, sex workers are particularly at risk of rape, abuse, and murder. The on-going criminalisation of sex work makes workers easy targets of abuse.  All aspects of sex work are criminalised in South Africa (the buying, selling, knowingly living of the proceeds of sex work, and keeping of a brothel) in terms of the Sexual Offences Act- driving sex workers away from social services particularly health care services. This forces sex workers to work underground which causes a strong correlation between criminalisation and the increase of STI and HIV infection.

Sex workers provide for their children and extended families but outdated criminal laws make them into criminals and victims.  Sex work urgently needs to be decriminalised to safeguard sex worker’s rights which includes their rights to access to justice, public health, and safety.

In my view, the extent of human rights abuse suffered by sex workers in South Africa is alarming. Research shows that much of the abuse is experienced at the hands of the police. Based on the complaints reported by sex workers, the WLC found the following issues which urgently need to be addressed.  The police:

  • fuel the stigma of sex work and discrimination
  • engage in verbal, psychological, physical, and sexual violence against sex workers
  • demand bribes
  • conduct arbitrary and illegal arrests
  • violate formal procedures and standing orders
  • deny sex workers the appropriate access to justice
  • confiscate their condoms and medication, making sex workers afraid of carrying condoms for fear of arrest
  • deny access to medication while in custody

Sex workers are thus unable to approach the police for assistance when crimes have been committed against them—some in the Western Cape have reported repeated rape both by the police and their clients. There is a stark contradiction between the actions of the police and the due process set out by the law, which police are mandated to follow.

Decriminalisation is the only structure which will reduce human rights violations against this vulnerable group of women, allowing them to freely report cases of trafficking without fear of being arrested themselves. Decriminalisation of sex work will also encourage women to exercise autonomous bodily integrity that will allow sex workers to negotiate condom usage, which will culminate to the reduction of the spread of HIV.

About the authors

Janie Booth and Victoria Wang are Juniors at Duke University and are interns at Women’s Legal Centre. Janie is majoring in Art History and is from North Carolina, and Victoria is majoring in Public Policy and Global Health and is from Illinois. They both are passionate about law and social justice.

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