Sex Work Decriminalisation: Commission on Gender Equality, SWEAT, South African Law Reform Commission, Department of Justice, Parliamentary Legal Services

Meeting report

Decriminalisation of Sex Work: Public submissions

Chairperson's opening remarks
The Chairperson noted that since this year marked the 60th anniversary of the 1956 anti-pass march at the Union Buildings, it was befitting to commemorate and pay homage to  the Federation of South African Women (FEDSAW), which was the first multi-party women’s organisation, and who had orchestrated this march that involved women across racial and party barriers. In commemoration of that event, the women of Parliament in 2016 held roundtable discussions. The challenges posed and resolutions made by the participants were to be presented to the Executive for implementation, although delays were occasioned by the recent local elections. One of the resolutions had involved the decriminalisation of sex workers, and the Multi-Party Women's Caucus Committee had decided to convene today's meeting to address that issue.

Sex work was regarded as an engagement of sexual activity between two consenting adults in exchange for reward, that may be monetary. Under the South African legislation, sex work was currently criminalised, in terms of the Sexual Offences Act, Criminal Law Amendment Act, various provisions in the Criminal Procedure Act and municipal by-laws. The conversation about decriminalising sex work and its legislation was not new in South Africa, having been considered even prior to 2010. COSATU had addressed the legal status and working conditions of sex workers. The ANC Women's League addressed its legislation and the Department of Health had identified sex workers as a key population group in the fight against HIV. The Southern African Development Community Parliamentary Forum (SADCPF) had indicated the removal of punitive laws that criminalised and stigmatised sex workers. The South African National Aids Council (SANAC) had launched the National Sex Worker Sector Plan. The South African Law Reform Commission (SALRC) had been entrusted with investigation of adult prostitution in South Africa and were expected to propose law reform. Various organizations in civil society, such as Sex Workers Education and Advocacy Taskforce (SWEAT) and the Women’s Legal Centre (WLC) advocate for decriminalisation of sex work and are supported by the Commission for Gender Equality (CGE). The plight of sex workers had been noted in many petitions brought before the Petitions and Executive Undertakings parliamentary committees . Many international organisations supported the notion of the decriminalisation of sex work, such as the World Health Organization, Amnesty International, UN AIDS International Labour Organization. Some countries, such as New Zealand and Australia (New South Wales) had already decriminalised it.

South Africa had already ratified various conventions in support of rights of sex workers, and the mandate of the Convention for Elimination of All Forms of Discrimination Against Women (CEDAW) specifically highlighted the need for sex workers to have equal protection and rights against gender-based violence, and a guarantee for equality and dignity. Despite this, South Africa still did not have current domestic legislation that addressed the unique challenges faced by sex workers and that was the intention of this Multi-Party Women's Caucus, to ensure that ,every human being would feel safe and protected in South Africa regardless of whatever form of work they engaged in.

Commission for Gender Equality (CGE) briefing

Mr Mfanozelwi Shozi, Chairperson, Commission for Gender Equality, noted that a human rights approach was used to mandate the decriminalisation of sex work, because the criteria for unfair detention of sex workers were so vast. The various pieces of current legislation infringed against the rights of human dignity, privacy and the freedom to choose, to name a few. Another issue was that of subjective morals and ethics. CGE was not promoting any type of sex work, but was advocating for the protection of rights for those who regarded sex work as their choice of employment.

He reiterated that South Africa had ratified a number of international laws, including the Platform for Action, African Charter for Rights of Women and the Gender Protocol. CGE firmly believed that if any domestic laws discriminated against sex workers, this would be contrary to democratic ideals. The implementation of laws was also problematic because of the limited definition of male and female. SWEAT and another organisations had lodged a complaint with CGE about the abuse of sex workers, and that was being investigated. The SA Law Reform Commission (SALRC) proposals were awaited. Although the changes in legislation would be introduced by the Minister of Justice, the CGE asked this Caucus to assess the process carefully and support and advocate decriminalisation, along with advancing gender equality.

Ms Keketso Maema, Chief Executive Officer, CGE, noted that the Sexual Offences (SO) Amendment Act of 2007 was specifically worded to try to protect child prostitutes, so she wanted to highlight that any proposals for decriminalisation were aimed at sex workers over 18 years of age, and who engaged in sex work by their own choice. Other entities could cite child prostitution and human trafficking as reasons not to allow decriminalisation, but the revised Sexual Offences Act clearly distinguished between those forced into sex work and those making their own choice.

She noted that the inclusion of section 11 of the SO Act criminalised the purchase of sex, and that addressed the issue that section 20(1)(aA) had been unfairly discriminatory by criminalised the selling, but not the buying of sex services. There was some question still over whether the two provisions were identical, because they did not create the same sanction for these statutory offences, and practical enforcement at street level differed, with prosecutions not necessarily based on those sections.

CGE was aware of statements by the Department of Justice and Constitutional Development (DOJ) during the HIV Aids Conference, when certain statistics were highlighted, but she noted that the complete statistical picture was still awaited.

CGE was currently running two investigations. One investigation derived from complaints lodged by SWEAT and the Women’s League Organisation, from testimonies of the sex workers themselves. The other was an investigation into the legislative framework, and there was an urgent need to communicate properly with the SALRC. The  CGE position paper on the decriminalisation of sex work had already been circulated and the idea of public hearings on the need for reform had been considered. The current investigations were almost completed. Most highlighted the abuse suffered at the hands of the SA Police Service (SAPS) with changes proposed to provide protection against such abuse. Because it was often hard for the SAPS to find concrete evidence of breaches of sections 20 or 11, the SAPS had often resorted to charging under municipal by-laws for loitering or nuisance, to detain suspected “sellers” of sex work, as evidenced by a consultative dialogue in 2012, with organisations including COSATU, civil society organizations and some legal fraternities, n Western Cape, Gauteng and North West.

She wanted to put matters into perspective. “Sex work” and “sex worker” concepts were coined by the sex workers themselves to redefine commercial sex as an income generating activity or form of employment. It indicated the right to self-determination, and for women to make their own decisions in a capitalist and patriarchal system. Prostitution was often viewed as coerced sex work, where women have had no choice in the matter, and women were considered victims who had been demeaned. This interpretation was formed by liberal and radical feminist thinking, and liberal feminists preferred to have law reform that would regulate sex work, by, for example, registration and mandatory health checks. Radical feminists deemed sex work as examples of  male supremacy and gender-based violence in itself, and preferred the criminalisation of the buyers of the sexual services instead. Neither thinking had secured protection of basic Constitutional rights for sex workers, nor eliminated abuse.

Ms Maema noted that the international responses to criminalisation, in countries such as South Africa, United of States of America and the Middle East, often took the position of prohibition. In the case of sex work, they would deem it illegal, and seek to reduce or eliminate the sex industry, supported by those opposed to sex work on religious, moral or feminist grounds. Anyone engaging in sex work and its associated activities would be deemed to contravene the legislation, and be prosecuted by the state.

A modified response to that was abolitionism. Jurisdictions within this framework, such as the United Kingdom and Canada, allowed the sale of sex work, but had banned all related activities such as soliciting, living off the earnings of sex work, brothel keeping and procurement. This effectively had still criminalised the practice of sex work.

Sweden was the first country to implement a partial system, by criminalising the buyers of sex work. Since sex work was regarded as a form of sexual abuse and an act of violence against women, proponents of this legal system hoped that targeting the demand side of the sex industry may reduce or eliminate it altogether. Another response was legalisation or regulation, as seen in jurisdictions primarily in Europe and many Australian states, in which sex work was legal, under certain conditions and constraints. The government controlled sex work as was deemed necessary to protect public order and health, through licensing, registration and mandatory health checks. Legalisation was also perceived as a means of reducing crimes associated with sex work, such as organised crime, police corruption, child sex work, and sex trafficking. Key indicators of legalised systems entailed the existence of state-imposed, sex work-specific controls and conditions.

The final approach was decriminalising/non-criminalisation and that approach advocated for the repeal of all laws against sex work, and the removal of provisions that criminalized all aspects of sex work.

Again, Ms Maema emphasised the need to draw a clear distinction between voluntary sex work, and that involving any force, coercion or child sex work; all these should remain criminalised. For consenting adults, sex work would be recognised as a legitimate business, regulated under conventional employment and health regulations, with sex workers enjoying same rights and responsibilities as other workers. It would typically result in the shift of power and emphasis away from the state and clients, to sex workers themselves, respecting their human rights, and improving their health, safety and working conditions. It would remove social exclusion that rendered sex workers vulnerable to exploitation. Proponents of decriminalisation argued that the cost of criminalising sex work at this stage outweighed the gains, that regulation constitutes violation of civil liberties, and that sex work should be seen as consenting behaviour between adults.

The current legal regime in South Africa had proven difficult to implement and enforce, and had resulted neither in the reduction of levels of sex work, nor reduction of violence against the sex workers. Instead, it had actually harmed them by denying them their human and constitutional rights, did not allow them access to legal protection and enjoyment of rights and led to harassment and abuse by police.

The following rights were specifically being denied:

• Section 10: Human Dignity- everyone has inherent dignity and the right to have their dignity respected.
• Section 12: Freedom and Security- everyone has the right to bodily and psychological integrity, which includes the right to security and control over their body.
• Section 22: Freedom of trade, occupation and profession- every citizen has the right to choose their trade, occupation or profession freely.

Ms Maema said that the CGE, as set out in its position paper, unequivocally supported the full decriminalisation of sex work. This was informed by an analysis of constitutionally protected human rights, and international obligations that should be guaranteed for sex workers. CGE cannot countenance the denial and abuse of rights of sex workers. State research findings in countries who had decriminalised refuted commonly held perceptions, as this had not resulted in any increase of sex worker numbers, human trafficking or increase in child sex work, but on the contrary had empowered sex workers to protect themselves against violence, had not affected levels of demand, but improved relationships with the police. 

Decriminalisation would allow sex workers to form unions and challenge unfair labour conditions, be free of discrimination, reach optimal levels of health and be freed from  arbitrary arrest and detention, violence, and promote the right to bodily and psychological integrity.

She noted that partial criminalising – of the buyer, as in Sweden, had not reduced sex work, nor trafficking, and had also not deterred buyers. The few instances of prosecution of buyers had in fact impacted negatively on the sex work trade. There was also a significant increase in stigma and discrimination, with continued harassment by the police.

Ms Maema elaborated on the policy implications of decriminalisation of sex work, as follows:
- Law enforcement policy would need to focus greater attention on the safety, security and protection of sex workers. This would entail shifting police resources and capacity from policing, harassment and prosecution of sex work towards protection, respect and enforcement of the rights of sex workers.
-Policy makers would need to allocate resources for training and capacity building within local law enforcement agencies, to bring about this mindset shift and ensure greater awareness and protection of the rights and safety of sex workers.

• Policy makers will have to consider educational awareness campaigns and dissemination of relevant information to the sex work industry in general and sex workers in particular, regarding imminent changes to current sex work laws and to ensure greater knowledge and awareness of the rights and responsibilities of sex workers.
• Effective dissemination of relevant information on a range of vital services for sex workers, such as health care services, legal services and other related support services, should be made part of a comprehensive sex work law reform package.
• A comprehensive review of current labour rights and laws and employment legislation will be necessary to ensure that the rights of sex workers are incorporated into enforcement policies and practices by state agencies, employer and worker organizations.
• A thorough review of current labour bargaining mechanisms and practices might also need to be undertaken as part of the law reform process, to ensure that sex workers enjoy the same rights of access to labour bargaining practices in the labour market.
• Policy makers need to implement mechanisms to monitor the behaviour of police towards sex workers, ensuring adequate powers of investigation and prosecution against police corruption and harassment of sex workers.
• The focus of policy should be on effective monitoring, investigation and response by law enforcement agencies to protect minors, eliminate and prosecute instances of under-age and coercive sex work and trafficking of women and children, and the exploitation and abuse of sex workers.
• Finally, it is important for government, in partnership with the CGE and civil society, to initiate broad public awareness campaigns to educate and sensitise society about the necessary sex work law reforms and associated policy changes. This is crucial to address and transform widespread hostile social attitudes towards sex work and sex workers.

Ms Maema concluded that multiple and conflicting positions on sex work in South Africa had derailed the development of comprehensive approaches, strategies and legislation on sex work. The issues of exploitation, morality, agency and choice are at the core of differences articulated. The experience and human rights of sex workers should be at the forefront of transformation in sex work legislation and industry. The CGE's approach was based on international studies on rights and impacts and the Constitutional framework. SALRC;s final report, apparently currently with the Minister of Justice, would hopefully be released to the public, to allow for engagement by all stakeholders.

In conclusion she said that CGE would encourage the Joint Multi-party Women’s Caucus to exercise strong oversight in this regard, and to support law reform that would decriminalise sex work by adult and consenting sex workers, to guarantee them freedom from unfair detention and violence, and the right to bodily and psychological integrity.

Discussion

Ms M Chueu (ANC) said that women had not only been discriminated in terms of the law, but also were treated as though they were inferior human-beings. She said that if sex work were to be decriminalised, women should be able to administer this themselves, not be controlled by male pimps. She suggested that all aspects needed to be considered now so that there were not gaps when drawing legislation.

Ms T Kenye (ANC) queried the issue of public awareness. She noted the comment that the statistics were still awaited from DoJ. In 2012, there was consultative dialogue with COSATU, civil society organisations and legal fraternities about working conditions, but nothing had been said about any initiatives to communicate with the Department of Health on possible health hazards. She asked if it was on board and suggested that DoH could demarcate centres dealing specifically with the awareness of the practice of sex work, and could assist with measures to prevent the spread of HIV and AIDS. She noted that the police had already been accused of abusing sex workers, but these claims would need to be verified, sex workers spread the HIV virus.

Ms P Mogotsi (ANC) queried the definition of a consenting adult at age 18, and suggested that the CGE should discuss awareness issues with the Portfolio Committee on Social Development. The age of 18 was noted in some legislation as consenting adults, but there were calls for the age of majority to be raised to 21, by some organisations, in relation to legalised sex work in particular. She was worried that teens might chose to engage in sex work instead of pursuing their studies, although many of them might not be mature enough to understand the implications and to handle the industry. If sex work were to be treated as a profession, all departments should review it. It would be necessary to discuss how age would be determined. She pointed out that if sex workers were to fall within the generally recognised definitions similar to other workers, presumably they would fall under COSATU, who could protect their rights. If sex work became a profession, she was worried about other agencies trying to regulate the rates of the sex workers, and so eliminate self- determination for the sex worker.

Ms Mogotsi asked for clarity of the definitions of the buyer and seller, and made the point that men and women could equally be sex workers. She wondered what the statistics showed about numbers of each, saying that this would need to be borne in mind in creating more awareness and proposing solutions.

Mr Shozi responded that anyone could be a buyer and seller, because CGE had taken an approach that was not gender-biased.

Ms Lulama Nare, Commissioner, Commission for Gender Equality, spoke to concerns of inequality. As witnessed on the streets of Johannesburg, there were differing vulnerabilities of sex workers. Race also influenced inequality, and it was found that in areas of abject poverty, more black and coloured people engaged in sex work on the street and were therefore more prone to being detained by the police force. They were unable, as white communities could, to “hide behind their picket fences in enclosed, undeclared brothels” and not be detained. CGE was mindful of the position of pimps and was aware that when women were selling their services, they would often be supervised from a short distance away by their pimps, predominantly male pimps, who were paid by the sex workers.

She noted that the SAPS had begun internal discussions on how to treat prostitution, because they had acknowledged that they had not had proper criteria under which to have detained many women picked up because they were suspected of prostitution, so they tended to arrest because of drunkenness, noise, nuisance, or loitering. Police tended to search their handbags, and if they found more than three condoms, the woman would be presumed a sex worker. There were some instances in which, having arrested the woman, there was no basis to charge, and they had simply driven them around the area for a time and then released them. Another worrying feature was that some rogue SAPS members had raped those suspected of prostitution.

Ms Nare replied to the concerns about children and age, and agreed that this was a problem. Recently, a young transgender male who was found to be a sex worker appeared to be under-age, but claimed to be 25 years of age, although he did not have an ID. She repeated that CGE's proposals to decriminalise sex work clearly referred to consenting adults; CGE supported continuing criminalisation of child sex work. The sex workers themselves would determine the issue of quality of work and rates. This would be categorised as atypical work – but similar to domestic workers, the workers would be entitled to form trade unions. The work itself was lonely and there was always risk of harm.

She noted that the DoH had made some provisions, being aware of known ‘hotspots’ for sex work. These hotspots similarly were a reflection of inequality, being used by poorer women, with those in better economic circumstances able to work within secured brothels. DoH would provide women who were suspected of being sex workers with condoms. Trade unions have also attempted to take HIV testing kits to the sex workers ,but it was unfortunate that to date the attempts to assist sex workers had been hasty and fragmented, to their disadvantage. Decriminalisation would enable better resourcing.

Mr Shozi replied to the query on business practice. Any business had inherent risks. Sex workers also had to consider quality, gender and class. During the Durban HIV and AIDS Conference, the sex workers had raised a number of issues. This reflected their ability to self-regulate, and there was a need to revisit the conclusions of the conference, especially since the world was finally recognising sex workers as key stakeholders in the fight against HIV and AIDS.

He made the point that the CGE does not have the authority to address individual municipalities on their by-laws but CGE might be able to propose changes to guide municipalities on treatment of sex workers and on how to  implement constitutionally-sound laws for sex workers. It could be assumed that the Department of Correctional Services and the Department of Justice would agree that municipal by-laws required amending, but municipalities tended to try to assert their own rights to make legislation.

Mr Shozi said that the moral and ethical issues should not be problematic. CGE could come back and present more facts once the legislation had been more fully explored. Some issues had not been touched on here, whilst that process was ongoing. More detail could be found in the position paper.

Ms Joy Watson, Senior Researcher: Socially Vulnerable Groups and Member’s Legislative Proposal Cluster, asked the history of the liaison of CGE with the SALRC, and asked to what extent their position was informed by other organisations.

Sex Workers Education and Advocacy Taskforce (SWEAT) briefing
Ms Nosipho Vidima, Human Rights and Lobbying Officer, Sex Workers Education and Advocacy Taskforce (SWEAT), emphasised that SWEAT advocated for the decriminalisation of adult, consensual sex work, but not for decriminalisation of child sex work. Sex workers in South African had been waiting 19 years for law reform, from when it was first proposed in 1997. The first step was an investigation into ‘Adult Prostitution’ in 1997, which began as a study originally entitled ‘Sexual Offences By and Against Children’. SALRC then expanded the scope of the investigation to include sexual crimes against adults, and renamed it as an investigation into sexual offences in general. In 1999, the first Discussion Paper was released, a substantive law relating to sexual offences and a draft Sexual Offences Bill was drawn. In 2001, a second document on process and procedures were released, then a third on adult prostitution and a fourth on pornography. In 2002, the Issue Paper on Adult Prostitution was released but the Discussion Paper followed only in 2009, with public input on that until 2014. The report and recommendations were submitted to the Minister of Justice in 2014.

This year alone, SWEAT was promised five times that it would receive the SALRC Report. By now, that Report could well be obsolete, because its submissions were now outdated with public perceptions having changed and far more work being done on sex work. Perhaps the entire process should be restarted. This was not the first meeting that SWEAT had convened with the Joint Multi-Party Women’s Caucus, Members of Parliament, researchers and academics, but would like to see clear directions, recommendations and stipulate tasks to be implemented.

She outlined that between 2011 and 2015, the Women's Legal Centre noted that there were 414 arrests, but of these:

• 13 encountered sexual abuse
• 71 were physically assaulted
• 152 were verbally abused
• 192 experienced harassment
• 254 experienced some form of abuse of human rights violation
• 43 were driven around aimlessly in police vans, with the police sometimes not attending at other emergencies
• 53 were photographed after being sprayed with pepper spray on their private parts “as a joke” 
• 83 were given no medical assessment. Once detained their possessions would be removed, including the ARVs of the HIV positive sex workers, which would exacerbate their condition
• 100 were given no food to eat and/or no water to drink
• 117 experienced the conditions of a bad cell
• 142 were not allowed to make nor receive any phone-calls
• 148 were denied visitations by family and friends

Ms Vidima affirmed that SWEAT had the statistics of HIV and AIDS amongst sex workers based on the IBBS Study. In Johannesburg, of 764 sex workers tested for HIV, 71.8% were tested as positive and 28.2% were tested as negative. In Cape Town, 650 sex workers were tested, and 39.7% were HIV positive and 60.3% were HIV negative. In Durban, 766 sex workers were tested, and 53.5% were HIV positive and 46.5% were HIV negative. Statistics were also available for sex workers physically assaulted or sexually assaulted or raped in the 12 months preceding the survey, with Johannesburg having the highest number of HIV positive sex workers, and the highest percentage of physical assault (50.9% of 764 sex workers) and first time rape (21.9%). She concluded that prevalence of the HIV positive victims amongst Johannesburg sex workers was related to sexual violence, as they were likely to have been raped and infected and not have access to proper medical treatment. SWEAT acknowledged that the government and other institutions had been trying to resolve health concerns, but there were insufficient easily-accessible health facilities designed for sex workers. Only one sex work specialised health clinic existed in Johannesburg. Many sex workers were killed or had died on the job, with not all deaths being reported even to SWEAT.  Samantha Ashleen April had been killed by her client on 9 August 2016, Women's Day, at Mkaza Beach. This commemoration of women's rights was overshadowed by this atrocity.

Ms Vidima noted that sex workers had a voice and their message was clear: decriminalise sex work. They were not a vacant, marginalized sector of the community and should be heard. SWEAT asked Members of Parliament to pursue the resolutions of the September 2015 Women’s roundtable discussion, lobby for the decriminalisation of sex work in the various divisions of government and publicise their intention. She said that in the past MPs had said that they were supportive, but had remained silent when called upon to act. SWEAT and Sisonke would be able to assist with formulation of strategies. SWEAT also wanted the Department of Justice to release the long-awaited SALRC Report immediately.

She noted that decriminalisation of sex work was also supported by COSATU; Amnesty International; Human Rights Watch; CGE; UNAIDS; South African HIV Clinicians Society; South African National Aids Council and World Health Organisation. On 11 March 2016, the Deputy President, who had confirmed that sex workers worked in the same way as other workers in the country, released a National Strategy Plan for sex workers. Although there were some programmes, there was not certainty on how this would lead to a long term plan to decriminalise. Short term measures such as delivery of ARV drugs and condoms did not assist with rapists, including SAPS members,  who refused to use  condoms.

She added that adult sex workers were not in support of child sex work or prostitution, but were often left powerless to report it when becoming aware of it because they were already treated as criminals themselves, opening themselves up to more risks if they reported. Human trafficking was commonly misconstrued as another form of sex work, but there was a difference because human trafficking was involuntary, with the victim being moved to other locations. Although it was commonly believed to involve sex, it could also take the form of forcing someone into labour, and there was insufficient data to conclude that all human trafficking was for sexual purposes. This led to migrant sex workers being forced to lie that they had been trafficked, if they were caught or suspected of engaging in sex work, and they would often falsely sign documentation allowing their release from custody despite the false claims of trafficking in that documentation. Last year, in Mpumalanga, a Zimbabwean sex worker had been detained for almost a year because she refused to sign an incorrect document, although her colleagues were released.

In summary, SWEAT called upon the Caucus to support the decriminalisation, commit to lobbying their parties and ask for the report to be released.

Ms Magwevana Vicky, Team Leader for Mothers of the Future, SWEAT and Sisonke Sex Workers Movement, spoke in Xhosa.

Discussion
Ms Chueu queried if Ms Vicky had spoken on behalf of all race groups or whether her experience was specific to black women.

Mr Lloyd Rugara, Sisonke Provincial Co-ordinator, SWEAT and Sisonke Sex Workers Movement, noted that as a male sex worker he suffered with his female counterparts for their pain and emotional trauma. He reported that sex workers had met for a National Quality Sex Worker Movement in Worcester, aiming to develop national solidarity and become more organized in response to the issues faced in their working environments. Topics included issues within the sex-working environment; the recognition of sex work as a legitimate form of employment in South Africa and the acceptance of the sex workers.

Sisonke wanted to promote national solitary amongst sex workers; to see reduce stigma associated with sex work reduced and to tackle the challenges related to existing legislation, to defend human rights, and to capacitate sex workers to speak and act on their own behalf. Sex workers had not wanted any institution to represent or speak on their behalf, because they were capable of doing so. The challenges of harassment from police, abuse from clients, pimps, discrimination by community members, and problematic (if any) access to social health services were Sisonke's main focus. It aimed to empower sex workers to take back their humanity, position in the community and assertiveness regarding unfair detention, instead of accepting arrest without the power of asking why and for what was the arrest taken place for.

Discussion

Ms Mogotsi queried how far the process had gone to drafting or planning new legislation, and made the point that this was a multi-platform piece of work that would involve many avenues.

Ms D Raphinti (ANC) agreed that  the Department of Social Development and the Department of Health, and others, would need to be on involved in discussions.

Ms Kenye reminded Members of the very long process behind the Termination of Pregnancy legislation, granting women their choice, and reminded them also that Parliament had been persuaded to pass this legislation to avoid the risks and loss of life from illegal abortions. Similarly, new legislation was needed here. Members of the Women's Caucus would return to lobby their own parties, and all of the nine provinces have needed to be consulted. Although the risks were well understood, this would not be an overnight task.

Ms Kenye was concerned at the request that sex workers seek permission to be armed, given the move to a gun-free society. She pointed out that a firearm may appear at first sight to be an effective deterrent against rape, its use could result in further criminal charges. She agreed that the SALRC Report should be released immediately.

Ms R Lesoma (ANC) agreed with her colleagues and recommended that the NCOP be involved.

Ms Chueu noted that any changes would challenge the status of men and would not be easy to bring about. She urged that the women of Parliament should not be seen as uncaring about the needs of sex workers but that it might take some time to enforce new legislation. Everyone should defend the rights of others.

South African Law Reform Commission AND Department of Justice on decriminalisation of sex work.

Ms Dellene Clark, Specialist State Law Adviser, SALRC, noted that the current legal framework criminalised the selling, buying and other related acts of carnal sex, under the Sexual Offences Act 1957 and Criminal Law (Sexual Offences and Related Matters) Amendment Act 2007. The core provision that criminalised prostitution (section 20 (1)(aA)) was challenged in Jordan v State 2002 (6) SA 642 (CC). The law was upheld as constitutionally sound because it did not unfairly discriminate against women, and did not infringe upon the right to privacy, freedom and security, nor on the right to economic activity. For these reasons, government was not constitutionally obligated to change the existing law or to follow a particular model. Instead, it would be a policy choice whether to do so. There was a range of legal responses possible to address prostitution in open and democratic societies. Currently, there was no national strategy to assist South Africans out of prostitution. South African prostitution was driven by a complex intersection of social and economic factors in which poverty, unemployment and inequality were key drivers.

SALRC would retain the term “prostitution” rather than using “sex workers” in this presentation, because the law used the terminology “prostitute” and “prostitution”. Although the use of the term “sex work” had been popularised, it was acknowledged by all stakeholders that not all people involved in prostitution would identify with the designation “sex worker”. The generally accepted definition was “the exchange of any financial/other reward, favour or compensation for the purpose of engaging in a sexual act.”

Ms Clark elaborated that the focus of SALRC investigation was centred around three main topics:

• Was prostitution classified as “work” (with applicable labour rights) or was it harmful and exploitative?
• Access to health care and the concerns of HIV (which was still a pandemic in South Africa)
• Alleged arbitrary arrest and exploitation.

The SALRC review had considered the legislative and regulatory context of adult prostitution, including a discussion of the different models used in different jurisdictions. It had also reflected on recent developments in the debate on adult prostitution. This included an exposition of the South African National AIDS Council (SANAC) National Strategic Plan for 2012 and TB 2012-2016, the COSATU Gender Conference 2012, the ANC Gender Discussion Document 2012, the FEDUSA Policy and Resolution on Prostitution at its 58th National Executive, presentation by the Sex Workers Education and Advocacy Taskforce (SWEAT), the South African National AIDS Council and Department of Health (DoH). Within the investigation report, each chapter set out the relevant research and salient submissions on the questions posed in the Discussion Paper that was published by the Commission. There had been 1 761 submissions to the Discussion Paper, further endorsed by 889 individuals and/or organizations, bringing the total number of submissions to 2 650. Each chapter contained an evaluation and discussion of the research and submissions relevant to that chapter and concluded with a recommendation by the SALRC.

SALRC noted that the opinions on the legislative framework were polarised . There were views for decriminalisation, as well as for retention of criminalisation. The South Africa context included unique societal challenges, such as the size of its 2013 population (52.98 million) which was vastly different from the 4.471 figure for New Zealand. Its geographical specificity and its porous borders also made South Africa very different to New Zealand, which did not have a problem with illegal immigrants. The South African context was complicated by the global economic downturn, high levels of unemployment, poverty, migrant and illegal foreign job seekers, high levels of violence (particularly sexual violence) against women who offered, and men who sought sexual services. Further problems included the HIV/AIDS pandemic, drug or substance abuse, trafficking; targeted exploitation of women in prostitution by third parties,; unethical authorities and violence by buyers. Internationally, the harm and exploitation of prostitution was being increasingly recognised, Several countries were introducing measures to move away from their current positions, including Netherlands, Germany, Sweden, France, Israel and Canada.

The discussion of alternatives by SALRC resulted in the following conclusions:
- Prostitution in South Africa was driven by a complex interplay of social and economic factors, among which poverty, inequality and unemployment were key drivers
- Exploitation, particularly of women, was inherent in prostitution and flowed from a culture of gender violence, inequality and poverty, and these were not merely in response to the legislative framework.
- Changing the legislative framework could create an extremely dangerous cultural shift juxtaposed against the high rate of sexual crimes already committed against women, rendering them even more “expendable” than at present.
- Comparatively, violence continued unabated. Even if prostitution were not criminalised, this would not neatly excise it from other illegal activities, because it continued to be shaped by the same socio-economic factors that concentrated crime in areas plagued by poverty, inequality and unemployment (as seen in Australia and the Netherlands).

Ms Clark noted the legislative models that were considered by SALRC.

One model was the possible retention of the comprehensive criminalisation model, but with a diversion option. Diversion improved the lives of those willing to exit the system,  by guaranteeing opportunities for new and different choices. This could be included in the formal economy in line with the New Development Plan (NDP). Cost savings were seen in criminal justice, health and human service systems. It addressed the root causes for engaging in prostitution. It had reduced repetitive arrests. Also, comprehensive criminalisation has met the obligations under CEDAW, because it combated violence against women, and exploitation by third parties.

The second option of only criminalising the demand would not end prostitution, but was aimed at significant reduction, and it would target the demand that drove the selling of sexual services and the provision of unsafe sex (CEDAW General Recommendation). This model was partial decriminalisation, in which the buyer was the offender. This may have reduced street prostitution, but the partial criminalisation, or Nordic model of non-criminalisation of the prostitute was criticised by the CGE who felt that there could be:

• Increased vulnerability due to quicker negotiations; reduced bargaining power
• A possible increase in violence, as in order to protect the clients, less public areas were used
• Greater competition due to the increase in numbers; declining prices
• Increase of stigma
• Reduction in condom usage          

The Global Commission on HIV and the Law had denounced the Nordic Model 2012.

The Model of regulation and non-criminalisation would have a negative impact on tourism as a sex tourist destination and would impede on the branding and brand value of South Africa, as an unintended and serious long-term economic consequence. There would be an increase in stigma and discrimination, because it would make women more vulnerable as they would sacrifice anonymity for being recognised as legal prostitutes, according to the HIV Stigma Index HSRC. It would not serve as a fair choice for poor women or vulnerable women, who would result in a separate, expendable, throwaway class of women.

SALRC was concerned that this could also lead to an increase in child prostitution, because it would not be able to strictly compartmentalize between child and adult prostitution. Regulation would increase in legal and illegal mitigation or trafficking, because of the increased supply. There would be an undesirable dual system of what would be regarded as legal and what would constitute illegal. Since it would be prostitution, and not the  framework under review, there would be human rights violations.

The model of legalisation within the South African context was then considered. There was some debate if it would address the power imbalance or reduce the demand for unsafe or high risk sex. It might even normalise coercion and the expendability of women. It would undoubtedly increase demand locally and internationally. Even the proponents for decriminalisation had acknowledged that such increase would occur and had aimed to provide assistance from a labour perspective.

The model of criminalising demand would not end prostitution, but was aimed at a significant reduction and it would target the demand that drives the selling of sexual services and the provision of unsafe sex (CEDAW General Recommendation 24).

Ms Clark noted that SALRC advised non-legislative remedial actions that were not dependent on law reform as alternatives. These could take various forms.

Institutional Intervention: Examples were the development of a clear strategy for dealing with prostitution on a primary preventative level and on a secondary intervention level, and the development of National Strategy to exit prostitution, by means of skills development programmes to enable gradual exit (Medium Term Strategic Framework and the National Planning Commission and Convention on the Elimination of all Forms of Discrimination, CEDAW, to protect against gender-based violence.) Transactional relationships as a social phenomenon should be further investigated from a social and gender-based violence intervention perspective. The Women’s League Commission and SWEAT also presented non-legislative recommendations in the Report ‘Every Sex Worker a Human Rights Defender’ released in 2012. The CGE and Human Rights Commission should investigate human rights violations.

Allegations against Police: SAPS and the Independent Police Investigative Directorate (IPID) should investigate reports of violence and unlawful conduct by officers. SAPS should establish guidelines for police conduct when dealing with prostitutes, and issue instructions to all SAPS members. Another remedial action would be an administrative mechanism for monitoring and responding to reports of police violence and unlawful conduct. This would minimise recurrence and would enable effective accountability and would ensure that complainants were protected from further victimisation.

Access Social and Health-care Services: Address and correct discriminatory behaviour of health care workers, by means of internal complaints mechanisms or equality legislation (the Equality and Prevention of Unfair Discrimination Act 4 of 2000 could be promoted). Implementation of the South African National Aids Council National Strategic Plan objectives would improve the use, access and uptake of health services. Provision of guidelines for health workers on interacting with vulnerable groups should be made. Substance abuse in the context of prostitution deserves further attention and intervention. Specialisation by SAPS and development of good practices would ensure social services. The Department of Social Development should be mandated to engage with prostitutes on issues of social security and poverty alleviation, including re-skilling and alternative income-generating projects.

Ms Clark outlined the history of the consultation process, as described earlier by SWEAT. The Discussion Paper stage consisted of eight formal workshops held in urban and rural venues, and numerous focused group meetings with the stakeholders, as well as facilitated workshops with adult prostitutes in different areas. The anticipated Final Investigation Report that SWEAT had demanded may be complete, but the Minister of Justice was the only authority that could release it to the public.

Mr Johan de Lange, Specialist State Law Adviser:Legislative Development, Department of Justice and Constitutional Development, explained that once the SALRC Investigation Report was released to the public, it would undergo a final evaluation and preparation of the Bill would follow. The Bill would be submitted to Cabinet for approval to consult, and then there would be a public consultation process. This would be followed by an evaluation of comments received, and finally the Bill would be submitted to Cabinet for approval to introduce it into Parliament, in 2017.

Discussion

Ms Sally-Jean Shackleton, Director, SWEAT, asked when was the Report actually finalised and when it was the Report sent to the Department of Justice? She asked if any of the Commissioners that were involved in the investigation processes were also involved in the finalisation of the Report?

Ms N Khunou (ANC) queried the research statistics. SALRC consulted about 2 650 individuals and organizations, but this was a very small number compared to the 120 000 sex workers whom SWEAT estimated were working in South Africa. She noted that New Zealand seemed to have decriminalised successfully, but she did not see a great deal of usefulness in comparative politics here. She asked about the  focus on the health risks of HIV and AIDS only, pointing out that other STIs and cervical cancer posed a threat too. She asked whether sex workers being removed from the streets meant that brothels would really be a safer and healthier option. Finally, she queried the definitions of prostitution and sex work.

Ms Chueu agreed that comparison to New Zealand was not useful because it did not have the same institutionalised violence as South Africa, largely due to the latter's apartheid system. Comparative politics in countries such as the Netherlands, a first world country, was also not useful. She pointed out that it had been hoped that the SALRC presentation would present the pros and cons of legislative change, but only the negatives were presented, and were based on opinion. For instance,  slide 9 cites, “changing the legislature framework could create an extremely dangerous cultural shift juxtaposed against the high rate of sexual crimes already committed against women…” The word “extremely” was suggestive of bias and exaggeration. She also asked whether this “extremely” remark was based on the dynamics of South African society. In slide 10, the SALRC used vague terminology, and she questioned what the diversion option meant and what would it entail? Another point claims that it would, “address the root causes of engaging in prostitution”, but no clarity on the root causes was given. She wondered how it could be verified what was a cause and what was an effect. Many women entered prostitution as adults, but SALRC seemed to suggest that the industry was entered at child level. She wondered if this was not a subjective opinion needing more revision.

Ms Maema asked whether or not the Jordan case highlighted the underlying social-ills that addressed criminalised sex work, and if, in the process of investigation, the SALRC was able to recognise the cause of the concerns. She pointed out that the SALRC had not touched on the constitutional position, and asked what sections of the Constitution were being referred to.

Ms S van Schalkwyk (ANC) also queried the comparative politics and the countries mentioned . She noted that Netherlands, Germany, Sweden, France, Israel and Canada were moving towards decriminalisation, but asked if there were any comparative studies available here on their status before and after legalising, and how this compared to South Africa. She questioned why no African countries were mentioned. She noted the influx of foreign nationals to South Africa, and wondered if there was any tangible report to indicate how many of those foreign nationals would join the industry, and at what level? Such a report would allow for better  scrutiny of the magnitude of the problem and would affect of the probability of decriminalising of sex work. The sex industry attracted multiple external threats, and she wondered whether decriminalising would minimise the internal threats – such as one sex worker killing another over territory and clients in Durban.

Mr de Lange answered the query about the SALRC Investigation Report. The initial report was submitted to the Ministry of Justice at the end of 2014 ,and was followed by engagements with the SALRC who requested some alterations. The final report, after engagement, was submitted in August 2015, and it had since been evaluated, had been discussed in interdepartmental interaction, although there had been some delay in getting it to Cabinet by the originally-proposed date of end 2015.

Ms Clark answered the query about the Commissioners involved, and the gaps in the report submission. The President appoints the Commissioners. From 2011-2013, the SALRC was without Commissioners, but eight were appointed in 2013. The Issue Paper and Discussion Paper reports were circulated widely, a mandatory data list was available on the website and widespread workshops were conducted. All exhibits were available to everyone. The SALRC submitted reports to a full sitting of Commission members, who  interrogated the content of the report. The Commissioner appointed for each matter under investigation was also involved in the finalisation of each report. SALRC still attempted to keep its information updated, so that the Report would not necessarily be outdated.  The 2015 submissions derived from organisations as well as individuals, including SWEAT, HRC, CGE, DFL and Women’s League Organization. Therefore, the 120 000 members of SWEAT were counted as one submission, via the organisation. She apologised if Members found anything vague, but pointed out that definitions could be found in the report. The Minister of Justice was responsible for releasing findings. Highlights were presented, but not the full content of the report.

She noted that before any recommendations could be ratified, a report on the socio-economic impact of the recommended legislation would have to be drawn. This was to prevent any unimplementable or inappropriate legislation.

She turned to the questions around comparative politics. Those countries selected for comparison had recently decriminalised, but were now considering moves back to another system. The African countries considered were Namibia, Malawi, Botswana, Zambia, Zimbabwe, Central Africa Republic and Algeria, but further interrogation was needed. The Western countries had actually had a firm call for decriminalisation which made them better comparators, although the New Zealand comparison was found to be impractical, given that this country did not allow illegal migrants, nor did it allow migrants to join the sex industry. This was therefore actually a regulated model, not decriminalisation. 

The Sex Worker Plan did address the risk of HIV and cervical cancer, as well as the effects on children of child prostitution, which included HIV infection; vaginal trauma; depression; post-traumatic stress; insomnia and reproductive health problems . The submissions made were for children aged 13 and older, but recently the increase of HIV/AIDS had spiked in the age group 15-24, because of transactional relationships that were financed by “sugar daddies”. Some girls may also be involved in prostitution, and the transactional relationship, in itself, may be viewed as a form of prostitution. Doctors for Life had been running a programme to minimise HIV contraction, in the age groups 16 and up. She stressed that consensual sex was permitted in South Africa, from age 16, so this raised the apparent contradiction that consensual sex was allowed at that age, but not for reward. If the age for legalising was raised to 21, there would be an unprotected sector of 16 to 18 year olds.

She said that she could not disclose the information on brothel keeping and pimps.

The difference in definitions was due to the overarching research into law reform and sexual offences. At first it was difficult to compartmentalise, especially since, at the onset, the problem of child prostitution was prevalent. It was decided that child and adult prostitution should be separated out. Child prostitution was deemed as sexual exploitation of children, but when the term “sex work” was more widely used, this could be inappropriate.

Ms Clark explained that the correlation of trafficking and prostitution derived from information by the South African Taskforce for Human Trafficking, who had advised that people were kept in bondage and had their passports removed, and whilst this did include for purposes of farm work and sweat shops, it was largely for the sale of sexual services. This aspect could also be explored further, whether consent was required for every client or overall.

She said that there had been opinions expressed for and against decriminalisation but there were no “maybe” views. Considerations focused on the vulnerability and risks of the sex workers and had nothing to do with subjective morality.

Ms Clark explained that the diversion option was more fully explained in the Report. The list of root causes, was derived from the issues that were submitted to the SALRC, and included the inequalities and other issues cited by SWEAT. The Report went into the case of Jordan v State. Ms Clark explained that Canada had similar Constitutional provisions to South Africa, and similar facts as the Jordan case had been interrogated in both countries, with a focus on vulnerability of the sex worker. Medical Research Council had made submissions on external threats, and its submission could be found in the report.

The Chairperson expressed concern that the Report had not yet been released by the Department of Justice. noted that it was undermining that the Department of Justice was not willing to release the contents of the final SALRC Investigation Report, but had made referral to it without the authority of sharing it.

Ms Shackleton noted that the Deputy Minister of Justice had recently said that the SALRC recommended “continued criminalisation of sex work, with noted diversion.” The Deputy Minister said that ‘further the Report had been considered by Cabinet, but they had not considered it to be taken on board and so would formulate their own opinion, and that the Department of Justice would collate options.’ This was available on YouTube. It was interesting that the the Deputy Minister had managed to quote the statistics that around 200 to 250 prostitutes were charged, but SWEAT, when requesting such information, was told that it no longer existed. SWEAT was calling very strongly for  the women of Parliament to support the sex workers' demands that the Report and its information be made available for public debate engagement and for sex workers’ voices to be prioritised in that discussion. SWEAT and Sisonke had been working really hard.  Sisonke had worked throughout the country to provide for the issue of sex workers and had even embarked on a study on cervical cancer amongst sex workers. Despite hard work, it was known that attempts to outreach services would be hindered by the legal system in the country. Sometimes, SWEAT vans would be followed by police vans, and so the sex workers would be afraid to utilise the services on offer.

Mr Rugara asked why SALRC claimed that not all people involved in prostitution identified with the designation “sex worker”? Sex workers themselves had coined the term themselves and being called a prostitute was rather insulting. The term sex work would ensure better comfort in what they were doing, and bolstered to recognise this as a business enterprise. The use of “prostitute” in its presentation suggested that the SALRC was not keen to decriminalise.

Ms Vidima asked what the timeline, processes and procedures were, after SALRC had made recommendations to the Department of Justice. She also asked why SWEAT had not received a response regarding its perpetual request for disclosure of information, particularly since reference was made to this in the SALRC report? ?SWEAT had requested the information multiple times and was not only ignored, but has not been furnished with reasons indicating why. If the actual report could not be released, a reason should be furnished within 30 days, and she suggested that this process be followed.

Parliamentary Legal Services briefing: Avenues available for lobbying
Ms Sue-Anne Isaac, Legal Adviser:  Parliamentary Services,  explained the process to decriminalise sex work from within the Joint Multi-party Women’s Caucus. The first step was to promote awareness of the issue. Submissions could be made to the Portfolio and Select Committees that were charged with oversight of women’s issues. A motion for discussion or debate could be raised in Parliament, as well as with women in political structures outside of Parliament. The issue could also be raised in annual reports to the Houses of Parliament, as well as the submission of substantive reports and proposals regarding decriminalisation of of sex work to the relevant parliamentary forums, such as the relevant committees .

She explained that law reform began by taking a policy decision on how the law would regulate sex work. The policy options available were criminalisation; partial criminalisation; partial decriminalisation and decriminalising altogether. Law reforms, made through amendments, would need to address the Sexual Offences Act, 1957 (Act No. 23 of 1957) and the Sexual Offences Amendment Act, 2007 (Act No. 32 of 2007)  The legislative process could warrant a Cabinet Member or Deputy Minister, Member of Parliament or Committee of the National Assembly introducing a Bill in the Assembly, in accordance with Section 73 (2) of the Constitution. The types of Bills that could be passed by that process were Executive Bills, Committee Bills or Private Members’ Bill.

The meeting was adjourned.