Decriminalisation of Sex Work in South Africa

During the Public Interest Law Gathering held at Wits University in July 2013, a panel discussion highlighted the case for the decriminalisation of sex work in South Africa. It must be noted that this panel discussion came about due, in part, to the position paper released in May this year by the Commission for Gender Equality (CGE) which sets out their support for the decriminalisation of sex work. The full submission is available for review.

During the panel discussion, a representative from Sisonke (Sex Worker Movement), a sex worker herself, highlighted some of the realities of being a sex worker; including harassment, rape and abuse, police brutality and corruption, discrimination at hospitals, clinics and police stations (which denies them access to post-exposure prophylactics, health care and access to justice) and unlawful imprisonment. The police are more likely to use municipal by-laws, such as nuisance law, to arrest, fine and detain sex workers. It was also noted that carrying condoms can lead to police harassment, because police use the presence of condoms on the person of sex workers as proof that the person is undertaking sex work. This results in some sex workers hiding the condoms and adds to their vulnerability if the condoms is not readily available.

The panellists stressed the use of the term “sex work”, which reinforces the reality of sex work as a form of work and attributes agency to the sex worker, who may choose to enter the profession for whatever reason. The Sisonke representative told the audience that sex workers view themselves as “business people” and that they believe they are rendering a service, and not selling their bodies.

For many, sex work is seen as the coercive and degrading use of women for sex. The tendency to rely on the notion of sex workers as having being coerced into this form of work is the position which some feminists have taken, and which one panellist stressed is detrimental as it does not take into account sex workers’ agency and ability to make life choices for themselves. Some feminists believe that sex work is a form of gender-based violence. Other positions on sex work, which attribute a moral stance to the argument for the criminalisation, are further detrimental because there is a failure to consider the human rights of the sex worker. It is also paternalistic, viewing the sex worker as a victim. Furthermore, the feminist stance ignores the different genders of sex workers; including the significant percentage of men and transgendered people who are sex workers.

A Human Rights issue

Currently, sex work is criminalised in South Africa under the Sexual Offences Act (which made the purchase of sex illegal under the 2007 Amendment Act) and the Criminal Law Amendment Act. During the discussion it was noted that the provision which criminalizes both the sex worker, as well as the client, has not been shown to reduce the demand for sex workers. Equally, there has not been an increase in the number of prosecutions of clients, even though the law was specifically introduced in order to allow for the arrest and prosecution of the people who are purchasing sex. It has proved difficult to prosecute someone under this legalisation because it is often difficult to gather the evidence to prove criminality.

The South African government is bound by constitutional and international legal obligations to ensure sex workers’ freedom from discrimination. South Africa violates this right by criminalising sex work because laws against sex work disproportionately affects women and criminalisation contributes to the stigma and discrimination of sex work. Furthermore, the CGE has stated that criminalisation violates Sections 10, 12 and 22 of the Constitution which protect human dignity, freedom of security of the person and freedom of trade, occupation and profession.

Extensive research by CGE considered the different outcomes of the legalisation of sex work (the regulation of sex work) and the decriminalisation of sex work. They believe that the latter is the best option for law reform due to the following reasons:

  • It will ensure that the sex worker is safe from abuse;
  • Sex work can be regulated as a labour practice;
  • The sex worker can exit the industry without prejudice;
  • Access to health care and justice is improved;
  • Sex workers can safely report trafficking and child exploitation.

During the discussion, it was further noted that studies have not conclusively shown a link between decriminalisation and an increase in trafficking and that this idea has been conflated. In fact, one panellist noted that a large percentage of people who are trafficked are done so for farm work.

A recent GroundUp article advances a human rights stance on sex work. The article notes the opinion of Marlise Richter from the International Centre for Reproductive Health, who states the following:

“[The] evidence shows that the decriminalisation of sex work would serve public health and individual sex worker health best.… Bringing sex work under labour law, and occupational health and safety laws, which a decriminalisation model entails, means that sex workers’ health can be protected and their human rights respected.”

Essentially, the case of the decriminalisation of sex work is a human rights issue. It is also about the recognition of the agency of human beings and the consensual nature of the sex work trade (in most cases). The majority of arguments and the motivation for the current laws are based purely on religious and moral doctrines, which have led to the abuse and discrimination of sex workers. The GCE has yet to see whether their position will be accepted by parliament. In the meantime, let us assist their efforts to reduce the stigmatisation and discrimination of sex workers by accepting that sex workers are ordinary men and women who deserve to have their rights realised, respected, promoted and protected.

By Claire Martens

Disclaimer: The opinions expressed by the Realising Rights bloggers and those providing comments are theirs alone, and do not reflect the opinions of the Legal Resources Centre. The Legal Resources Centre is not responsible for the accuracy of any of the information supplied by the bloggers.

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The Legal Resources Centre is a public interest law clinic established in South Africa in 1979

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