South African Law Reform Commission Report: Adult Prostitution: response by stakeholders

Multi-Party Women’s Caucus

05 March 2018
Chairperson: Ms R Morutoa (ANC)
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Meeting Summary

The Multi-Party Women’s Caucus arranged a summit during which 30 stakeholders and interested parties provided responses to the Adult Prostitution Report produced by the South African Law Reform Commission on behalf of the Department of Justice and Constitutional Development. Written submissions had been submitted in 2017.

The Chairperson indicated that it had not been her decision as Chairperson of the Multi-Party Women’s Caucus to advocate for decriminalisation but as the Multi-Party Women’s Caucus. However, Members had been mandated by the resolutions that had emanated from the Women’s Parliament in 2015 and 2016. The Multi-Party Women’s Caucus had decided to advocate de-criminalisation of sex work, although it was not easy as Members had had their own views.

The South African Law Reform Commission (SALRC) Report constituted the third leg of the investigation into sexual offences and had been released on 26 May 2017. The SALRC Report did not support the decriminalisation of sex work. DoJ&CD would be involved in further research and consultation to find solutions on how best to deal with the matters raised in the report and to balance the various views and inputs. Any legislative process following the report would only happen after an extensive consultation process. Five non-legislative recommendations in the report were of particular importance as they addressed critical issues which were raised repeatedly in stakeholder submissions:
• It was recommended that the Commission on Gender Equality and the South African Human Rights Commission should investigate reports of human rights violations on sex workers.
• The South African Police Service (SAPS) and the Independent Police Investigative Directorate should investigate violent and unlawful conduct by SAPS members against sex workers.
Administrative mechanisms for monitoring and responding to police violence and unlawful conduct against sex workers should be developed to minimise occurrences and to enable an effective response, and to ensure that complainants were protected from further victimisation.
• Guidelines should be developed for healthcare workers to interact with people from vulnerable groups, including people who provided sex for a reward.
• The Department of Social Development and the Ministry for Women should be mandated to engage with people who provided sex for a reward on issues of personal security and poverty alleviation, including reskilling and alternative income projects.
The SALRC Report suggested that the recommendations should be considered by the relevant departments and if in agreement with the recommendations, they should take the necessary steps to implement them.

On timeframes for legislation, SALRC reported that the Department of Justice and Constitutional Development was undertaking research and legislative work on the subject matter of the report and in the second half of 2018, it would probably be in a position to consult on the legislative matters. The non-legislative proposals were dependent on the relevant departments and whether they agreed with the recommendations. Timeframes would be developed according to the work of the departments.

Almost half of the submissions made on the day were in favour of the criminalisation or partial criminalisation of adult prostitution, while just over half of the submissions favoured decriminalisation of sex work. Speakers were extremely passionate and articulate. All presenters recognised the social ills associated with adult prostitution but those who advocated decriminalisation believed that decriminalisation would make sex work safer and that sex workers would have easier access to health care and enjoy improved human rights, as well as be in a position to access protection from the relevant labour laws. Those who were against decriminalisation were adamant that nothing could improve the condition of sex workers. It was degrading to women and society had no right to normalise sex work as if it were acceptable to condemn people to such a way of life. The anti-criminalisation advocates also spoke of the impact of prostitution on children and how human trafficking was intertwined with sex work.

Advocates of decriminalisation believed it was important for women to exercise their own agency. Currently, the rights of sex workers in South Africa were being violated and the State had a duty to promote the rights of sex workers in terms of the Constitution. The obligation was on the state to balance the rights of citizens. The SALRC Report was taking a patriarchal position where the state decided what was best for women. South Africa was party to various international conventions and protocols that should be adhered to. SALRC assumed that sex workers had not chosen their work or the manner of their work. It was the state’s obligation to ensure their right to work and to ensure health and safety at work. The use of the term ‘prostitution’ in the SALRC Report was derogatory and dehumanizing and based on a moral value judgement. It was not in line with terminology used by international organisations such as the World Health Organisation and UNAIDS.

Decriminalisation advocates declared that it was necessary to hear the voices of sex workers themselves. Despite this, a number of sex workers who had exited the business of sex work spoke in favour of criminalisation or partial criminalisation. The point was made that sex workers did not have access to financial and insurance services, may have migrated without papers and usually did not have rental agreements and therefore had difficulty in registering their children for school. Advocates of decriminalisation attacked the quality of research work of those favouring the opposing position. Although the Chairperson asked everyone to accept the views of others and understand that the central point was their concern for the welfare of women, there were undoubtedly two highly polarised groups in the room.

After the submissions, the Chairperson stated that the Steering Committee of the Multi-Party Women’s Caucus would meet to discuss the positions presented at the summit and would probably engage in further consultation. However, she did commit the Steering Committee to ensuring that appropriate legislation would be drafted as soon as possible.

Meeting report

Opening remarks
The Chairperson welcomed everyone to the Summit. The Ministry of Justice was not in attendance but would be represented by the South African Law Reform Commission (SALRC) as the Commission had written the Report. She welcomed the Progressive Women’s Movement of South Africa, and the representative from the Office of the Deputy President.

The Chairperson was pleased to be at last holding the summit which the Multi-Party Women’s Caucus (MPWC) had hoped to hold in October 2017 but had been unable to do so. Law reform relating to sex workers had been on the agenda for a long time. The MPWC had taken the decision to pursue the matter vigorously after the Caucus had been mandated by women who had attended the round table which had been hosted by Parliament in commemoration of Women’s Month in August 2015. The same resolution had come out strongly during the Women’s Parliament in August 2016 where the MPWC was mandated to advocate for de-criminalisation of sex work in South Africa. The Chairperson indicated that it was not her decision as Chairperson of the MPWC to advocate for decriminalisation but as the MPWC, she and the Members had been mandated by the resolution that had emanated from the Women’s Parliament in 2015 and 2016. The MPWC had decided to work towards de-criminalisation of sex work, but it was not easy as Members had their own views. However, as public representatives, the Members had to put aside their own views and do what they had been mandated to do.

The Chairperson also wanted to raise the media reports of support for the decriminalisation of sex work by the governing party. She knew that many people attending the Summit had questions on that matter, but the Women’s Caucus had planned to hold the summit before December 2017. One of the reasons that the Women’s Caucus had postponed the Summit was that various organisations had required more time to prepare their submissions. She knew that many were asking themselves, after seeing the media had reported that the governing party wanted to decriminalise sex work, whether there was a need to hold the summit. Everyone was there that day to create a law that supported sex work. Everyone wanted a law that was suitable to South African conditions, that would be customised according to South African legislation and that would work for South Africa. That could only be achieved when the views from all the stakeholders had been consolidated. It was good to look at other countries to see what had worked there, but in the end, everyone had to come up with something that would work for South Africa.

Addressing those who would be giving submissions and their supporters, the Chairperson said that she wanted everyone to know that their views and opinions were important and would be taken into consideration. It did not matter whether one was in support of or against decriminalisation of sex work. No view was wrong or not important. Participants were to take note that there would be no arguments or fights and that the Committee would not tolerate rudeness and lack of respect, whether one agreed or not. There would be silence when presenters were speaking. The Women’s Caucus valued all stakeholders that had helped the Committee and the country to move forward towards a free society where gender equality was the norm. There would be different Programme Chairpersons for the various sessions. She was looking forward to a constructive engagement.

The Chairperson noted that the South African SALRC had been requested to report on the status of the SALRC’s Report on adult prostitution, what the Department of Justice’s plans were for developing a legal framework, and what the timeframes were for the work in that regard.

South African Law Reform Commission (SALRC) briefing
Ms Dellene Clark, Principal State Law Advisor, SALRC: Department of Justice and Constitutional Development (DoJ), said that the SALRC Report on Adult Prostitution released on 26 May 2017 constituted the third leg of the investigation into sexual offences. It contained legislative and non-legislative recommendations. The legislative recommendations of the Report was being considered by the DoJ which would develop legislation should it be decided to do so. DoJ&CD would be involved in further research and consultation to find solutions on how to best deal with the matters raised in the Report and to balance the various views and inputs. Any legislative process following the Report would only happen after an extensive consultation process.

On the non-legislative recommendations in the Report, she referred to five of them:
• It was recommended that the Commission on Gender Equality and the South African Human Rights Commission should investigate reports of human rights violations on sex workers.
• The South African Police Service (SAPS) and the Independent Police Investigative Directorate should investigate violent and unlawful conduct by SAPS members against sex workers.
Administrative mechanisms for monitoring and responding to police violence and unlawful conduct against sex workers should be developed to minimise occurrences and to enable an effective response, and to ensure that complainants were protected from further victimisation.
• Guidelines should be developed for healthcare workers to interact with people from vulnerable groups, including people who provided sex for a reward.
• The Department of Social Development and the Ministry for Women should be mandated to engage with people who provided sex for a reward on issues of personal security and poverty alleviation, including reskilling and alternative income projects.
The SALRC Report recommendations should be considered by the relevant departments and if in agreement with the recommendations, they should take the necessary steps to implement them.

On timeframes for legislation, SALRC reported that the Department of Justice and Constitutional Development was undertaking research and legislative work on the subject matter of the report and in the second half of 2018, it would probably be in a position to consult on the legislative matters. The non-legislative proposals were dependent on the relevant departments and whether they agreed with the recommendations. Timeframes would be developed according to the work of the departments and SALRC.

The Chairperson asked if there were questions of clarity but there were none.

Amandla.Mobi submission
Koketso Moeti, Amandla.Mobi Executive Director, spoke on behalf of a campaign endorsed by 662 people who were alarmed by the SALRC Report recommendations. She presented a scenario in Yeoville which reflected the insecurity of sex workers who we were regularly beaten up in Yeoville but who were too afraid of the police to go to them for help. She had personally tried to help but the victims simply stated that there was nowhere safe for them. Ms Moeti called for DoJ to provide clear timelines on legislative processes moving forward. She stated that there had not been enough consultation of actual sex workers. She stood on the shoulders of 662 people who had noted with concern some of the recommendations in the SALRC Report. The options of either criminalisation or partial criminalisation and diversions would not offer protection to the women on the streets. Until the most oppressed in any society were taken care of, there would be no peace. The Multi-Party Women’s Caucus had an opportunity to undo a massive injustice that had been happening for way too long. She called on them to listen to those who were affected and to set aside the SALRC Report.

Nalane and Associates submission
Dr Tlaleng Mofekeng, an independent medical practitioner working in sexual and reproductive health, was presenting as the founder of Nalane and Associates and the Vice-Chairperson for the Sexual and Reproductive Justice Coalition. She felt passionately about the unfair way in which sex workers were treated. Public health did not have to be protected from sex workers who were not all victims of disease. There was a gross misunderstanding about who sex workers were and they did not all perform a penetrative sexual act. The Department of Health and the South African National AIDs Council (SANAC) had to end their silence, beyond mere statistics, on sex worker violations. SANAC had to explain how support for full decriminalisation had vanished from their national plan. The only health drive around sexual workers was HIV testing. Not all sex workers were HIV positive. The Constitution should ensure that everyone had a right to dignity, and human dignity was not dependent on the a person's occupation. It was a right that was given to everyone and therefore the current victimisation of sex workers was against the prescripts of the Constitution. Sex workers had a constitutional right to healthcare. She noted that the World Health Organisation had indicated support for countries de-criminalising sex work and hoped that South Africa would have courage to take the process forward. Evidence, not morality, should guide legislation. Decriminalisation would address their healthcare issues, in particular, including screening for cancer and HIV. Human rights should not be the subject of opinion polls but should protect the rights of those whose rights were not respected by the majority.

Coalition to End Sexual Exploitation in South Africa submission
Octavia Ephraim, member of the Coalition to end Sexual Exploitation in South Africa and founder of the Octavia Ephraim Foundation, said she was a human trafficking activist. Hlengiwe Mkhize of the ANC had said in 2009 that there was support for de-criminalisation but there had to be more consultation, especially of the women in the churches. Ms Ephraim fully agreed with her and she was of the opinion that, to date, insufficient consultation had taken place. People were shocked at the topic of decriminalisation of sex work which took them back to the days of abortion being legalised. There was not sufficient consensus in the country. Most people who went into sex work did so because of tragic personal circumstances such as family breakdown, poverty, rape, abuse, trafficking and economic survival. The organisation was opposed to the commodification of both male and female sexuality. It rejected the commodification of girls and woman in any situation, be it prostitution, pornography, trafficking, and sexual tourism. She and her colleagues wanted to create alternatives for woman who would otherwise be forced into prostitution. Prostitution did not provide women what they had hoped for. The prostitutes suffered dehumanisation over extended periods and often in contexts where they should have been cared for. It was necessary to hear their voices. South Africa had one of the highest rates of rape in the world. The perception of sex for money was negative. Pornography had contributed to the rape culture. She hoped that the Summit would restore the dignity of women. She challenged her colleagues to be counted and not to lose their moral values.

Ms P Khunou (ANC), who had taken over as Programme Chairperson, commented that she was learning a lot of new things by listening to the submissions.

Women’s Legal Centre and Legal Resources Centre joint submission
Mandivavarira Mudarikwa, Legal Resources Centre attorney, and Charlene May, Women’s Legal Centre attorney, said the submission was based on their experiences with sex workers and their expertise as constitutional litigators in South Africa. Both centres believed it was important for women to be given the space to exercise their own agency. Currently, the rights of sex workers in South Africa were being violated and the State had a duty to promote the rights of sex workers in terms of the Constitution. The obligation was on the state to balance the rights of citizens. South Africa was party to various international conventions and protocols that should be adhered to. The Women’s Legal Resource Centre focussed on the right to work. SALRC assumed that sex workers had not chosen their work or the manner of their work. It was the state’s obligation to ensure their right to work and to ensure health and safety at work. The use of the term ‘prostitution’ in the SALRC’s Report was derogatory and dehumanizing and based on a moral value judgement. It was not in line with terminology used by international organisations such as the World Health Organisation and UNAIDS.

The Legal Resource Centre believed that the SALRC finding that the decriminalisation of sex work would not provide sex workers with labour protection was flawed, as was the view that it would not address poverty. Improvement of working conditions and social protection had to involve some form of recognition for sex work to succeed. The Resource Centre accused the SALRC Report of taking a patriarchal position where the state decided what was best for women. It was unforgiveable that sex workers had to rely on the very justice system that criminalised them.

University of South Africa submission
Marcel van der Watt, lecturer in the Department of Police Practice at UNISA, acknowledged that the debate was complex. He focussed on the link between human trafficking and sex workers. Researchers advocating for the decriminalisation of sex work had narrowed the definition of human trafficking to strengthen decriminalisation arguments, but he believed that SALRC was correct in stating its assumption that decriminalisation would not prevent or alleviate those situations associated with sex work. A minority of sex workers practiced sex work of their own choice. The lived experience of investigators, prosecutors and researchers was that sex workers were there because they had no other choices. In instances where women were not engaging in sex work voluntarily, the crime of human trafficking for sexual exploitation in the sex trade was rife and riddled with abuse. He said that the methods that traffickers and pimps used were very similar. In some research projects, the problem had been truncated and significant parts had been excluded.

Recruitment circumstances mean that much of sex work could be classified as human trafficking. No one would ever know the hidden nature of the crime of trafficking. Child trafficking in the sex trade was rife. There was no centralised database and aggregated data on the scope, nature and extent of human trafficking in South Africa. Children were sexually exploited as part of the sex trade. There were also many young boys in the sex trade. Mr van der Watt presented video pictures of three young children brought into South Africa for sex work. The demand for commercial sex fuelled human trafficking in South Africa. The pimps asked for photographs which were fed into the pornography mill. Sex workers were not a homogenous group. Trafficking was systemic, and agency needed to be de-constructed. Section 36 of the Constitution should provide guidance. He urged wider consultation as communities were frustrated with the prevalence of sex work and human trafficking. Trafficking had to be dealt with decisively and there should be exit programmes for those involved in sex work, but it should not be decriminalised.

The Programme Chairperson asked for space for all presenters to express themselves; no gestures or signs were permitted.

Straatwerk submission
Ms Madri Bruwer had been part of the Straatwerk organisation since 1995 and had had the huge privilege of spending time with prostitutes and those involved with prostitution as well as those who had moved on from prostitution. She said that it had been a gift to be involved with them. She spoke on behalf of the many prostitutes with whom she had engaged. She would start with the end in mind: the hope that people would not have to enter prostitution and that everything would be done for those who wished to exit prostitution. For those two things she had great hope. The SALRC Report had been inspiring and encouraging and had heard the voices of the people. Ms Bruwer saw the stories of prostitutes’ lives in the SALRC Report which opened up the truth and allowed for an understanding which would guide the legislation.

Straatwerk had 21 reasons for opposing the call for decriminalisation. The law had to communicate hope and the hope was that no one would need to enter prostitution. The damage caused to people was not caused by the law but by the industry of prostitution. She believed that criminalising prostitution did not criminalise people. The intention was to criminalise an industry that did immense damage to people because the damage caused by prostitution could never be prevented. Damage was intrinsic in prostitution. Decriminalisation was not going to solve the problems of prostitutes. The attitude of people towards prostitutes had to be changed so that they were treated with respect. Ms Bruwer ended with reading a poem.

The Programme Chairperson, Ms Khunou, pointed out that the MPWC Chairperson had pushed for the Summit and the consultation. She had been adamant that it had to happen. Even though some Members had felt that the topic had been dealt with and should be set aside, the Chairperson had persisted. Ms Khunou was very glad that she had persisted. The Summit was already causing Committee Members to expand their minds. It gave them an opportunity to hear the people who were involved in the situation and understood it well. She believed that they would do what the people who had voted them into power had expected them to do.

Ms L Zwane (ANC) welcomed the submissions and had listened with great interest. She had been impressed by the submissions of UNISA and Straatwerk. She believed that decisions would rest with the Steering Committee, however, she sought clarity. Many presenters had said that government ought to ensure that sex workers were provided with the same security measures in the workplace that are available to other workers in society. Could someone unpack and explain where the workplace was and how it was to be protected? She did not quite understand.

Ms N Mente (EFF) asked for confirmation that Primrose Residents Against Crime had not presented. She wanted clarity from Dr Mofekeng on the concern about the vanishing of the HIV programme from the Deputy President’s strategic plan. Had she done any follow-ups at SANAC and what was its response? Dr Mofekeng had touched on the question of morality. What was it that she understood by the moral values that would become stumbling block to the decriminalisation of sex work? Otherwise, the submission had persuaded her as she had laid bare the reason for decriminalising sex workers and had then opened their eyes to how Parliament needed to engage with society on morality.

Ms T Memela (ANC) referred to the submission by Mr van der Watt. He was pointing a finger at the trafficking of people. Women could not be blind to what was going on under their noses in respect of trafficking, not only of woman and girls, but also of little boys. Why they did that she did not know. The gentleman had said that people were failing them because it was the law. Two years ago, a truck full of underage kids had been pulled over in Durban and to date the case had not been finalised. The fact that it had not been finalised meant that someone was not prepared to see that the little kids were safe. She asked Marcelle if he was part of the legal grouping, or what? What could lay people do to stop it? Children just disappeared. She understood that Mr van der Watt had links to the legal fraternity. He had to tell them what to do as mothers were not prepared to lose their children. Those children were destroyed, even if they returned to their homes. She asked him to be open with them.

The Programme Chairperson had a question for the SALRC. Something was missing when they were speaking because the Commission said that it would work on the legislative process but did not say what it would be based on. The Commission had not said which resolution it would be based on or whether it would be based on the Report. Mr van der Watt had had a lot to say about pornography and human trafficking. She had picked up something very important when he had said society could not reward that behaviour by legalising it because it would ruin more and more lives. She found it interesting that he had considered it a behaviour that would ruin more lives. She wanted to ask the SALRC if it had considered issues like trafficking and pornography that had spread so rapidly. A lot of things that Mr van der Watt had said had to be considered and focused on. How did trafficking correlate with the issues of de-criminalisation of sex work? She wanted the SALRC to give its views on the matter.

Ms C Majeke (UDM) noted that a number of presenters had spoken about consultation. She was of the opinion that the Committee had to engage in wider consultation rather than concentrating on a few people.

Ms Mente asked whether the Women’s Legal Resources Centre could indicate which regulations the SALRC was in violation of in terms of its recommendation? Were there any regulations that the Women’s Legal Resources Centre could suggest that would combat crimes such as rapes, pornography, human trafficking and other criminal elements that was impacting on complete decriminalisation?

Ms D Ngwenya (EFF) asked the first speaker from the Law Commission about the respondents who had guided her to the choices in the Report. How broad was the range of the respondents and what had guided the definition of prostitution? Why had she chosen the negative definition of prostitution? Why had she chosen the negative term instead of the broader international terms? Ms Ngwenya thought that consultation should be wider. How many sex workers had been consulted and what were their views? She sought clarity on the statement about criminalising the industry. Was it the building? Even if they said they were not criminalising human beings, that was what it was about.

Ms G Tseke (ANC) noted that Dr Mofokeng was demanding timelines from the MPWC. She agreed with other Members that the matter was urgent, but it had been in the public eye for some time and the Committee should not rush to decisions but should deliberate on the issues after the day’s public hearings. Thereafter, they should open the discussion for other platforms so that they could get other public participation outside of Parliament. The Committee would also have to meet with the SALRC to discuss the policy position and then they would have to talk to DoJ. It would, therefore, take time for the Committee to finalise the matter, but the Committee was definitely on top of the matter and, under the leadership of the Chairperson the Committee, would fast track the issue until it was finalised. Secondly, the last presenter had spoken about exit programmes but had not been specific. She asked exactly how Straatwerker was assisting those who wanted to exist. What were they doing? What was their relationships with other NGOs and where did they get funds? Was their work sustainable?

Ms L Dlamini (ANC) welcomed the submissions. It was unfortunate that there was not enough time as everyone was skipping things and had a lot more that they could say about the subject. She was more interested in hearing about the root causes. Why were people entering into sex work? If one knew that, one would know what interventions were required. It seemed that the Committee was dealing with symptoms. Would decriminalisation solve the problems or was it the environment that forced those people to enter into prostitution and would do so even if it was decriminalised? She agreed with those who said that the Committee should widen the consultation. The people had to say why they were there. When working in the Department of Health in Mpumalanga, almost everyone in prostitution did not want to be there. It was the circumstances that were forcing them to be in that environment. If prostitution was decriminalised, was the Committee saying that it was right to be involved in prostitution and that they should just continue in that situation? Were there no alternatives to help those who wanted to get out of the industry, and to help those who did not want to enter the industry. She did not think that it was a desirable career.

Ms P Robinson(DA) thanked all the presenters, saying that she had really enjoyed listening to the different points of view. She got the feeling that they were just touching the tip of the iceberg and they needed to delve more deeply. She agreed that the Women’s Caucus needed to look more widely, but at the same time she was really concerned that if the Caucus kept postponing and did not get to some point where the Caucus could bring about some resolution or tried to help people who were in the circumstances of prostitution where it was not a cushy job in a beautiful flat but where it was on the street and people were really victimised. She did know that high level prostitution also involved violence and dehumanisation, but the Caucus could not keep postponing the matter. There had been some judgements recent, particularly on trafficking, where the magistrates or judges seem to have taken a far harder stance. The Caucus needed to have a resolution that people who preyed on others had to be punished. The punishment had to fit the crime. It was so very complex and yet it could not be postponed. Colleagues had asked a simple question. Why did people enter the profession? It was known that, in many cases, they simply had no choice. It was poverty and economic circumstances and about putting food on the table and providing for the children to go to school. But it also led to social disintegration and there were people, who fell through the cracks and just had nowhere else to go. Those people landed up on a truck and ended up in a brothel. She was also concerned about trafficking, drugs and gangsterism. Would-be gangsters had to perform rituals of rape, abuse and murder to get into a gang. One could not just look at it as simply a job situation. One had to look at the other causes. She was pleading with her colleagues that they found some sort of a solution sooner rather than later. It might not be possible to immediately come up with a decision as to whether it should be decriminalised or not, but the Caucus had to get to the position where the justice system and the South African Police Service had to be strengthened. That would be a contribution from Parliamentarians.

Ms M Semenya (ANC) wanted to remind Members that it was about consultation and listening and that Members would have to use the submissions when they engaged with the SALRC Report and the legislation that was being drafted. After Members had listened to the submissions and had thought about what had been said, they would have to decide whether there was a need for further consultation.
She had wanted to clarify that the Caucus would make a decision as to whether there was a need for further consultation or not. That decision had not yet been taken.

Ms C Dudley (ACDP) apologised for having been delayed. She was particularly interested in the topic and was very sorry to have missed the submissions, but she would make sure to find time to catch up with what was available. Her research showed that, without a doubt, decriminalisation actually exacerbated the problem that they were trying to fix.

The Programme Chairperson noted that Dr Mofokeng had spoken about HIV/AIDS and cancer as a result of the activities of sex workers and she had hoped that the doctor would have spoken more about cancer as there had been many campaigns about HIV/AIDS and she thought that it was about time that people spoke openly about cancer as that was affecting the people. She wanted Dr Mofokeng to pronounce herself more on that. She asked the SALRC for the statistics that they had mentioned because one could not do anything without having statistics at hand. Statistics meant something because when Members took decisions they could understand the impact on the people. She noted that Members of Parliament had a lot of work to do after the Summit and she lobbied the Chairperson to allow the Caucus to go to the border posts. No children should be allowed entry without an unabridged birth certificate. If it were easy for people to pass through the borders with children, then there was something wrong with the laws that they were passing in Parliament. They needed to go to the border posts to see how easy it was for people to traffic children out of the country. When Members talked about family values, they also needed to talk to SABC. She had heard the submission on pornography which was viewed as a violation of human rights. She had thought that pornography was how sex workers advertised themselves, so she needed to understand why pornography was dehumanising people. How could they deal with it? Minister Gigaba had talked about dealing with pornography when he was still a Deputy Minister at Home Affairs. As part of broadening consultation, they could look at church groups that had networks that the Caucus could consult about family values.

Ms P Bhengu (ANC) thanked the presenters and noted that there were two groups – one in favour of decriminalisation and one that wanted the current status to remain. There was also the view that sex work was actual work and there were others that wanted to exit sex work. She suggested that the MPWC should visit other countries to research how other countries had overcome the situation. There was a need for a study tour. It was a sensitive issue and the Caucus had to be very careful as everyone had their own minds about human rights.

The Programme Chairperson stated that it was not possible for presenters to respond at that time as it was lunch time. She agreed with Ms Dlamini that it was important to give presenters more time. She asked the Programme Chairperson for the next session to take the following submissions and then take all responses thereafter.

Ms B Engelbrecht (DA Gauteng) informed Members that the NCOP had gone to Sweden the previous year and that she had been part of that delegation to look at the Nordic model, which was the partial decriminalisation of sex work. She thought that it would be important for those who had gone to the Nordic country to share what they had found in Sweden, so she would like to put it on a future agenda.

The Committee Chairperson understood that the Programme Chairperson wanted the presenters to respond but that would delay the process. However, she thought that the SALRC should respond so that everyone could understand where the process was. Some people had directed very good questions to the SALRC. If the discussion was prolonged, there would be no end, but they needed clarity from the SALRC so that the Members would have clarity. The Members were public representatives and needed to be clear on what was wanted of them, but they could not go on asking questions and having questions answered.

The Programme Chairperson pleaded with everyone, including presenters, to stay until the end of the Summit as it was an important topic. The Summit was scheduled to finish at 8:00 but there were no arrangements for people sleeping over in Cape Town. She understood both the importance of the topic and the pressures of time but had hoped that Members would be able to ask clarity seeking questions. Unfortunately, it was not possible to tell Members not to discuss things as they were paid to talk. She asked the SALRC to remain until the end as there would be more questions.

Ms G Tseke took over as Programme Chairperson for Session 2.

Congress of South African Trade Unions submission
Matthew Parks, Parliamentary Coordinator for COSATU, made a submission in support of decriminalisation of sex workers in order to guarantee the rights of sex workers. There was a need to support the labour, health, human and other rights of sex workers. COSATU was aware of the issues related to violence and poverty but believed that decriminalisation would assist in addressing violence against sex workers and trafficking. Sex work was partially a response to high levels of unemployment and poverty, as well as a lack of educational opportunities. Decriminalisation would assist in addressing high levels of HIV/AIDS and other STIs. It would enable relevant agencies to address gangs and other criminal syndicates.
Because there were high levels of stigmatisation associated with sex work, sex workers were unable to safely report abuse to the police or the Department of Labour. They were also unable to access social security. COSATU believed that decriminalisation of sex work would improve the working and health conditions of sex workers and assist in addressing child abuse and trafficking

Doctors for Life submission
Johan Claassen made a very brief submission on behalf of Doctors for Life as the psychiatrist, Dr Clair Hoffman, who was to present had unexpectedly been unable to make it to Parliament. However, he wished to make the point that one of the main concerns on the part of Doctors for Life was that the very act was harmful to the sex workers, client, family and to society as a whole because of the various things that surrounded prostitution such as drug abuse, pornography, etc., as had already been mentioned by other organisations. Certain diseases were endemic to sex workers and that had been seen by the 1500 doctors who belonged to Doctors for Life. Prostitution or sex work had been investigated for the past 18 years or more and had been thoroughly researched. There had been a number of court cases on the issue as well as a Constitutional Court case, the State versus Jordan case in 2002. It was possible to learn from other countries. Research had shown that decriminalisation had not been successful in the sense that it did not make the situation any better. In Rhode Island, decriminalisation was reversed as it had not improved the situation. Doctors for Life believed that the client should also be criminalised, and that was not happening at the time.

The Programme Chairperson reminded Members that the full submission was in their arch lever file, as was that of the Tsohang Youth Project, which was not represented at the Summit.

The Programme Chairperson indicated that the representative for Mothers for the Future, a group of sex workers concerned about the future of their daughters and other young women, was welcome to speak in isiZulu as it was an official language of the country. She also indicated that Members and the audience could use the translation system. However, the system was not operative on the day.

Mothers for the Future submission
Ms Duduzile Dlamini speaking in isiZulu spoke about her experiences in the streets as a sex worker and the people she works with. She didn’t have an Education and Skills that’s why she ended up doing the work she does. They are being abused by the police and are being raped so she is asking for decriminalisation of sex work. Says the laws should be changed so they could build relationships with the police. Lots of young people are also on the streets now, doing drugs, prostitution and they are not able to report on those things because they are also targets. (Could be locked up). She said the programmes that they are being put on don’t help if a person hasn’t made up their mind to quit. There are people who want to quit the industry and she supports those decision, but there should be changes in the law for those who wish to continue. They have a right to continue to do their work and want to feel safe, but the Government doesn't protect them.

Social Justice Advocate submission
The Social Justice Advocate is located in the Faculty of Law at the University of Stellenbosch. Marna Lourens presented on behalf of the Department and apologised for the absence of Professor Tuli Madonsela who had been unable to attend. The Social Justice Advocate applauded Parliament for addressing the matter which affected the most vulnerable in society. The Social Justice Advocate supported wide-ranging changes to the law to ensure that society was based on the Constitution and the Bill of Rights. The recommendation was, therefore, that the SALRC should explore the option of decriminalisation combined with regulation, coupled with strong measures against coerced sex work and underage sex work. Such a vision was in line with the transformative Constitution’s human rights-based approach, which incorporated within its core both a gender and development perspective.
It was a matter of concern that high levels of poverty contributed to creating an enabling environment within which sex work took place. That was a direct result of structural inequality. Access to justice was essential for transformation. There was no doubt that full criminalisation was problematic but so was gender-based violence and socio-economic factors drove people into sex work. Criminalisation of sex work had not improved the plight of sex workers but had exasperated the situation. Primarily poor back street workers were prosecuted, not the other sex workers. The Commission had said that the law had to be the means to full criminal justice. There was some disquiet with the choice as even the option of diversion framed prostitution as personal choice and highlighted discrimination of sex workers. Until the law acknowledged the reason for women entering sex work, there would not be a solution.

Ms Mente referred to the Social Justice Advocate submission and asked for information about the suggested regulations.

Ms Dudley asked if it was not a cop-out if they simply threw up by their hands and hoped that decriminalisation would solve all problems. Was the Women’s Caucus not taking the easy way out by not addressing the reasons for prostitution? Research showed no evidence that the problems faced by sex workers were resolved by decriminalisation. What happened in countries where sex work had been decriminalised, was that the industry had expanded phenomenally, plus all the crime syndicates that attached themselves to the industry as it expanded. One did not therefore see any improvement. It simply became worse. Was society not just copping out of its responsibility by taking the easy route as suggested by Social Justice Advocate?

The Programme Chairperson informed Ms Dudley that the MPWC was still going to meet on the matter and take further discussion. The Summit was intended as an opportunity for Members to listen to public input but there was still a long way to go even after the Summit.

In response, the Social Justice representative indicated that she had been unable to complete her submission owing to the time limitation and stated that Social Justice believed that the Commission should explore partial decriminalisation plus regulations and look at coerced and child sex work. Parliament could test the likely impact on a virtual basis. The purpose was to reduce violence. There was a need to listen to the debate from a different lens. One had to be careful not to take a parochial approach when making legislation. An intersectional lens approach would be better. It was important to work across disciplines and not top-down. One had to look at the situation differently and to engage the women and the men on the ground.

Dr Mofokeng said that it was important to go back to definitions. Sex by definition was by consent of both adults. Sex work was consensual sex by adults for remuneration. Human trafficking and child sex work was not sex work. There were criminal elements involved in sex work. If people were going to talk about decriminalisation of sex work in South Africa, they could not spend the time muddying the waters by talking about things that were not sex work. Sex workers were adults who were asking for the right to engage in remunerated sexual acts with whomever they chose. Therefore, there were asking that it be decriminalised.

Black women on the streets were the ones who were vulnerable to abuse by the police who took their condoms and their anti-viral medication. Chinese sex workers had explained to her that they did not like using the female condoms because it was too big to swallow when the police came after them and the police confiscated condoms to use as evidence against them. That explained why female condoms were not popular. Young women who did not self- identify as sex workers were now called Blessees, but it was contractual sex. People should not be forced to self-identify as sex workers before they had human rights. She was a medical doctor who examined people and gave treatment. She had a medical degree. Did that make her more deserving of human rights? When people talked about morality, she asked whose morals? Why should sex workers adhere to the morals of society, the same society that was anti-black and anti-women. Criminalisation of sex work limited the health services that has sex workers could access because of the stigma. Decriminalisation would remove adult sex workers from illegal and unsafe treatment, etc. The criminalisation of drug abuse had not helped anyone. It had gone from a health problem to a problem for the police. People were marginalised and ended up on drugs and then they became criminalised. She had a problem with people who were saying they had done research when all they had done was a Google research that was not even peer-reviewed. One could never stop people from making decisions about what they do with their bodies, but they need to be allowed to do it safely. The immediate need of sex workers was protection. The HIV policy document was no longer even in the South African National Aids Council National Strategic Plan. She said that in South Africa, people had to deal with abortion based on Google research. She went on to complain about when land would ever be distributed in South Africa. People wanted to move on to the land issue when sex workers had no protection and desperate needed it immediately.

Legal Resources referred to COSATU’s list of labour legislation. The legislation was there for workers, but sex workers could not access the rights. There were policies and laws that could address some of the concerns. South Africa had one of the best constitutions in the world. There were a lot of references to rape and pornography in law. There were laws in that regard, but the country struggled with implementation. Trafficking of persons was addressed in the Sexual Offences Act. It also criminalised rape and sex with children but it criminalised sex workers as well. There were restrictions on viewing of child pornography and what could be shown on television at different times of the day. The Children’s Act protected children in many ways. Currently the Cyber Crimes Act was being drafted in Parliament. Greater emphasis on the implementation of those laws could deal with many of the issues.

On behalf of UNISA, Marcelle van der Watt, re-iterated that one needed to define accurately to educate effectively. If people did not define accurately, they would not know what they were talking about. Coerced sex work was a new term that had come up in a submission that morning. What did it mean? Current studies showed that the problem of child trafficking was under-reported. People were truncating definitions and thereby undercutting the problem. There had been agendas in how definitions were framed. There was a myth that human trafficking had been created as a social problem in South Africa. That was bizarre. That denied the lived realities of trafficked people. Human trafficking was not created to satisfy an international view of trafficking. What was xenophobia? What was criminal opportunism of robbing people’s homes? Society had to move away from the moral argument. He agreed that race was a fundamental problem. There was an intensely ethical responsibility to deal with the range of problems in South African society and to fix what was there. SAPS had to train and educate police officers. It would cost billions of Rand to decriminalise sex workers. Researchers focussed only on sex workers but did not pay attention to police, prosecutors and other people unwillingly draw into that situation. Mr van der Watt declared that he would do whatever he could to contribute to resolving the problem.

The Programme Chairperson reminded the South African SALRC that they were required to stay to the end of the Summit.

Ms Bruwer of Straatwerk stated that the organisation spoke about people involved in prostitution, not prostitutes because what people should not define them. Exit happened when people were in a place where they were open to the possibility of exiting and desired it. Exit happened in a context where people were invited into a group where they could be loved and valued. Funding came from like-minded people who believed that everyone had value, and no one should be sold. Individuals and church groups contributed to the funding. The programme involved therapy in an attempt to deal with the damage that had been done to the individuals and, secondly, assistance or journeying concerning growth through totally acknowledging the individual and building relationships. Those who were involved in prostitution were unique people and so certain principles were followed. The programme sought to know a person’s passion and where that person wanted to get involved in society and managing his or her own life. Basic needs such as food were addressed, but also training. Straatwerk helped them with what they needed. It was about management of their own lives while Straatwerk found resources that they needed. Whatever model was chosen, there had to be an exit strategy, and everyone was needed, regardless of whether one supported decriminalisation or partial criminalisation.

SALRC was reminded that it had to stay until the end as it would have to provide responses to issues.

On behalf of the SALRC, Dallene Clark stated that with regards to the legislative process and what it would be based on, the Department had provided her with the document that she had presented that morning. To recap, DoJ would be viewing and evaluating the Report as instructed by Cabinet on 26 April 2017. DoJ was instructed to consider the Report and then to consult with and to advise Cabinet. The Department would evaluate the Report and then they would engage with forums such as the one that day. DoJ further envisaged broad consultation and would be accepting written documents. In terms of timeframes, the Departments had said that they would be doing that in the second half of 2018. Trafficking had been dealt with in the Report from page 69 onwards and also intersected with different parts of the document. SALRChad been asked to codify all sexual offences in the country. It was such a huge task that they had divided it into four parts. The first two parts dealt with substantive and procedural law, and excluded adult prostitution, and pornography and children. Those first two parts had given rise to the Criminal Law (Sexual Offences and Related Matters) Amendment Act, Act 32 of 2007. The third part of the investigation dealt with adult prostitution, and the fourth part of the investigation dealt with pornography and children. On each of those investigations there were issue papers, discussion papers and reports. All investigations were advised by various advisory committees appointed by the Minister of Justice and over 6 250 submissions were received, consulted and indicated in the Annexure. Over 800 people had endorsed the submissions. The Commission had looked at sex trafficking, sexual tourism and the Palermo Protocol. It had looked at criminalising brothels. Adult access to pornography was legal. Criminalisation of sex workers was constitutional as per the Constitutional. The legislature had the responsibility to combat social ills and, where appropriate, to use criminal sanctions. SALRChad used the word ‘prostitution’ as ‘sex workers’ was not used by all engaged in prostitution and furthermore, it anticipated a particular position in law. Decriminalising adult prostitution did not ensure labour rights. The definition used by the SALRC was ‘exchange of financial or other reward for engaging in the sex act.’ Prostitution was only a sub-category of sex work.

Ms P Chueu (ANC) took over as Programme Chairperson for Session 3.

Sisonke | National Sex Worker Movement of South Africa submission
Kholi Buthelezi, National Co-Ordinator and a founder member of Sisonke, made the submission on behalf of Sisonke the National Sex Worker Movement of South Africa. Sisonke was represented on various national, African and global bodies that addressed the issues of sex workers. There were 1 500 Sisonke members in the country. The Movement was dissatisfied with inadequate theorising of work and exploitation. There was an inherent bias and illogical justification about criminalising sex work, but the law had to serve the people. The law had failed to provide perspectives of sex workers and the Report had failed to reflect the research into HIV/AIDS. The Report suggested that sex workers were exploited because they were poor. She rejected the theory of exploitation. The Report was determined to silence the voices of sex workers and deny them a right to choose how to make a living. The criminalisation of sex work had been an attempt to prevent people from accessing their right to work. The Report opposed the idea of a transformed society. The only people quoted in the Report were Christian Fundamentalists. Sisonke recommended full decriminalisation, full consultation, and the use of HIV/AIDS research. Sisonke supported the attempts of the Women’s Caucus to decriminalise sex work and called on the DoJ to set aside the SALRC Report. “Nothing about us, without us,” was the call of Sisonke.

Centre for Applied Legal Studies submission
Sheena Swemmer from the Centre for Applied Legal Studies (CALS) focused on two points in consideration of the short amount of time available. The first point was about listening to the voices of marginalised individuals and the second point dealt with de-moralising sex work. Historically, sex workers had experienced marginalisation by both the state and society. For this reason, there is a need to re-engage with the interests of sex workers and to ensure that their voices were heard in the process. CALS supported Sisonke in that the SALRC Report had not adequately engaged with all who reflected the experiences of sex work. It was ironic that she spoke on behalf of sex workers. Owing to unequal power relations, sex workers sometimes did not have equal access, even to Parliament. NGOs were speaking on behalf of sex workers. Women, race, and sex work were linked to moralising attitudes towards women and sex. The use of the term ‘prostitution’ in the report was problematic. SALRCdid not call a gay man a ‘fag.’ Sex worker was the appropriate term as prostitute contained layers of implied understanding of the position of the sex workers.

The term ‘decent work’ was equally loaded with a subjective, moral assessment. Sex workers were from the lower strata of the population, had come from poor backgrounds, some were homeless and often needed to support their children. The decriminalisation of sex work would result in sex work being recognised as labour that should be protected through workplace health and safety standards. It would further allow sex workers to access financial services and insurance services. CALS believed that there had been no meaningful consultation in the Law Reform Report. The SALRC had not wanted to show a predetermined outcome, but they had pre-determined the outcome by speaking of the women as prostitutes.

SWEAT - Sex Workers Education and Advocacy Task Force Legal Defense Centre submission
Adv Stacey-Leigh Monock represented the newly formed SWEAT Legal Defense Centre. She was accompanied by Adv Anel du Toit, who was a member of the Cape Bar and who had been involved in many legal cases involving sex workers. The SWEAT Legal Defense Centre was a registered Law Clinic that provided access to trained paralegals who reached sex workers where they worked and lived. Services included legal advice, legal resubmission and court support, and strategic impact litigation.

The Centre opposed the recommendations made by the SALRC Report which ensured the continued stigmatisation of sex workers and showed inherent bias, lacked evidence, had been insufficiently researched, had failed to consult sex workers and had made deeply problematic recommendations. The Report was developed through a problematic process that lacked transparency and accountability. The investigation into sex work had started in 1997, culminating with the report being released in May 2017. The process had taken about 20 years. The Report was problematic in that it was premised on a moral foundation of abolitionism. The pattern of argument in the report was clearly biased in favour of continued criminalisation. Evidence in support of decriminalisation was held out as targets of rebuttal before a rebuttal was offered.

The Report failed to cite up-to-date, credible research, especially in the field of public health, including views expressed in the SANAC National Sex Worker HIV Plan. The Report detracted from the promotion of universal human rights and the views of human rights organisations such as the World Health Organisation, UNAIDS and Amnesty International. From a labour rights perspective, sex work should be decriminalised. That was also the view of trade unions such as COSATU and FEDUSA. Morality could never be a legitimate government purpose as the question would be whose morality was being enforced. It had to be noted that the Constitutional Court debated cases differently from a few years back. The current legal framework is inconsistent with international, regional and domestic laws, including the Constitution. The law needed to be reformed to ensure that it was consistent with South Africa’s constitutional obligations from a human rights perspective. SWEAT opposed the recommendations made in the Report.

Hand4Hearts Foundation submission
Anita du Plessis affirmed the SALRC Report on behalf of the Hand4Hearts Foundation. She pointed out that she would be using the term ‘prostitution’ as that was the language of the Report. She read from page two of the Report. There was a need to push back against the commodification of people’s bodies. South Africa had no national strategy to assist prostitutes to have decent livelihoods outside of prostitution. Prostitution diminished the dignity of those involved. The Hand4Hearts submission noted with concern the ANC resolution to decriminalise sex work which dismissed the views of faith-based organisations. Hand4Hearts Believed that an environment should be created to assist prostitutes to exit sex work and that it was vitally important to protect children from sex work. Based on extensive studies, the Foundation had found that prostitution could not be separated from trafficking and child prostitution.
African countries did not have to follow Western countries. The Foundation believed that the choice to get involved in prostitution was often made in fairly limited circumstances and therefore was not really a choice. At the point of sale, the client was in a position to exploit the prostitute. It was not possible to separate violence, abuse and human trafficking from prostitution. Sex workers were exploited, and she asked whether the law would be saying that exploitation was acceptable in certain circumstances.

Commission for Gender Equality submission
Keketso Maema, CEO for the Commission for Gender Equality, was accompanied by the Chairperson of the Commission for Gender Equality, Ms L Nare, and the Head of the Legal Division. The Commission used the term sex work following consultation with sex workers themselves. The CGE adopts the view that the SALRC report was fundamentally flawed. Sex workers did not forfeit their rights to protection under the Constitution. The Gender Commission was going to ignore the State versus Jordan case as the Commission believed that, in that particular case, the court had not taken all circumstances into consideration. The Commission was of the view that it was unacceptable in a constitutional democracy for the state to treat one of the most vulnerable groups in society as criminals. The harsh stance adopted in the Report created a hostile environment, which allowed for sex workers to be subjected to violence, as well as inhumane treatment both by their clients and by the police. That was offensive to both the values enshrined in the constitution as well as the international human rights instruments that South Africa had ratified, such as the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).
The criminalisation of sex work led to the widespread abuse of the rights of sex workers, violence against them, abusive treatment by the police, and stigmatisation that resulted in them being hesitant to access health-care services or justice services when they experienced a violation of their rights. Very often sex work was seen as a moral issue, with religious opinions viewing sex work as being a ‘sin.’ However, the Bill of Rights protected the values of an open and democratic society based on human dignity, equality and freedom.
Religious organisations often supported the need to extend a compassionate hand to sex workers to exit from sex work, but at the same time, sex workers were regarded as being criminals. That was not a rational approach. It was also important to note that all social systems had norms, values and practices that changed with time. The Commission was against the criminalisation of sex workers.

Amnesty International South Africa submission
Louise Carmody, a Researcher, represented Amnesty International South Africa. The organisation recognised the role that Parliament played in addressing the issues relating to sex worker because policy and legislation was vital. Amnesty International SA’s policy approach to sex work was that legislators had to take a human rights-based approach. For Amnesty International SA, sex work referred only to consensual sex between adults for remuneration.

All issues relating to child sex pornography and human trafficking had to be controlled by means of regulations. Amnesty International’s submission noted with concern with the fact that the SALRC Report diminished the agency of sex workers and conflated sex work with trafficking in the report. That approach would undermine efforts to prohibit trafficking. The criminalisation of sex work disempowered sex workers and entrenched stigmatisation. The Report failed to cite relevant, recent evidence in studies that showed that the criminalisation of sex work exacerbated HIV/ AIDS.

South Africa was plagued by high levels of poverty and unemployment. There would only be a reduction in women entering into sex work when long-term social and economic measures were put in place to reduce poverty. The Report silenced the voices of sex workers and yet their participation was critical in developing an appropriate policy approach. The Report denied sex workers the right to equality and non- discrimination while criminalisation of sex work prevented sex workers from having access to labour rights and favourable conditions of work. It denied sex workers health rights and served to exacerbate HIV/AIDS. It further denied sex workers the right to liberty and security of person. The argument in the Report that the criminalisation of sex work reduced human trafficking was a flawed one. The criminalisation of sex work placed sex workers at a higher risk of harassment, violence and extortion.

SWEAT Sex Workers Education and Advocacy Task Force submission
Vidima Nosipho, Human Rights and Lobbying Officer at SWEAT, stated that SWEAT did not speak on behalf of sex workers because SWEAT was an organisation of sex workers and that had had an impact on how the organisation had dealt with the SALRC.

The partial decriminalisation of sex work would only make things harder for sex workers and their problems would be pushed further into the background. They would not be able to access adequate healthcare. Sex workers would become the property of the police seeking to make arrests. How did partial decriminalisation address gender inequality by making one criminalised and the other not? Full criminalisation of both the client and the sex worker had not worked. In partial decriminalisation, the sex worker would have to be followed until she got a client so that an arrest be made. If the client was criminalised, who was a sex worker going to sell to? Diversion programmes were not viable for many reasons. Sex workers formed a very diverse group.

South Africa would need a larger budget to fulfil the ambitions of people who were engaged in sex work and to provide special opportunities for sex workers but to deny them to people who were in the townships was blatantly unfair. People had limited choices but they had choices. People could have become domestic workers or waitresses but if they wanted more money, they went into sex work. SWEAT was happy for there to be an exit programmes for those who wanted out but not everyone wanted out. The problem with being a criminalised sex worker was that the children of those sex workers could be taken away. She was a sex worker and, even for her, it was scary to stand up and make that declaration in public.

Embrace Dignity submission
Embrace Dignity supported partial criminalisation of sex work. Nozizwe Madlala-Routledge, founder of Embrace Dignity, was supported by Sylvia Ruka who was a survivor of the sex trade. Prostitution was a highly gendered human rights violation. Prostitution existed because of the demand for it, so it was time to criminalise the demand. Countries that had worked toward reducing the demand for paid sex had adopted the Nordic model, namely the partial criminalisation of sex work. Since the passing of the Nordic model, Sweden had seen a radical decrease in street prostitution and had seen an 80% reduction in the number of buyers of sex. The provisions to eradicate the sex trade related directly to the United Nations Sustainable Development Goals, the Africa Union’s Agenda 2063, South Africa’s National Development Plan and South Africa’s Medium Term Strategic Framework.

The system of prostitution undermined both equality and dignity and was founded on patriarchy. It was exploitative, discriminatory and harmful and could not be regarded as work. It was a form of structural violence. Sex trafficking fed prostitution and prostitution provided for the demand for sex trafficking. The decriminalisation of the purchase of sex, pimping and brothel keeping would create a dangerous cultural shift juxtaposed against the high numbers of sexual crimes committed against women. The term ‘prostitution’ should be retained to refer to the exploitative nature of the buying of sexual acts.
Prostitution offered short-term financial benefits and had not been shown to lift women out of a lifetime of poverty and economic inequality. Child and adult prostitution could not be compartmentalized as decriminalisation would expand the industry and encourage child prostitution. The New Zealand experiment of decriminalized sex work was a failed experiment. Embrace Dignity supported the Equality Law, also known as the Swedish Law, the Nordic Law or the Sex Buyer Law. The Equality Law was an effective model for breaking down the cycles of patriarchy and sex trafficking.

Crystal Clear Ministries International submission
Christel Lang, Executive Director of Crystal Clear Ministries International, supported the law as it currently stood as there were too many factors to be ignored by taking the easy way out and decriminalising prostitution. Crystal Clear Ministries believed that women went into prostitution because they had no other real choices to support themselves and their children. There was a strong co-occurrence between prostitution and drug use, drug selling and drug-related crimes, particularly property crime. That situation added to the already strained police force.

Decriminalising prostitution was a romantic ideal. There had to be fair prosecution on both side with strong diversity programme for those who wished to leave prostitution. Prostitution affected the women involved negatively, physically, mentally, and emotionally as well as psychologically. It negatively affected children. Partial criminalisation would not have the positive effects looked for. Prostitution was associated with human trafficking. It was totally unnecessary to decriminalise prostitution to give prostitutes human rights. They were entitled to human rights no matter what they did. Human rights were not linked to what was criminal or not criminal.

The Programme Chairperson thanked the presenters and asked if there were Members who had questions of clarity.

Ms M Tom (ANC) said that the Woman’s Caucus was the correct body to deal with the matter because it was Parliament that made laws. She had listened to all the presenters. Those who did not like decriminalisation always told them about somebody in some place. None of them said, “I am ...” But all of those who had presented in favour of decriminalisation had said, “Look at me. I am what.” She was not a lawyer nor did she have a medical background. She came from the finance sector and believed that for every demand there would always be supply. She did not want the issue clouded by other things that people said were related to it. She also did not want to hear the word “prostitution” because was not a very polite word. Everyone there was a woman, and everyone needed to be respectful, so the term “sex worker” should be used. She had heard the word “trafficking” but that referred to even men who were trafficked to do work so that should not cloud the issue. The Women’s Caucus was being asked to decriminalise sex work. They were not being asked about trafficking, so they should only deal with the issue at hand.

Ms Mente asked Crystal Clear to unpack the assertion that decriminalisation of sex work would add to money laundering, fraud and all the things mentioned in the submission. How were those things related to a right? Could Crystal Clear please clarify her when they were only talking about rights?

Ms Semenye pointed out, as a Member of the Steering Committee, that the Women’s Caucus had not yet taken a decision on the matter, which was why they were having that particular public hearing. The Steering Committee would circulate the statement made by the Committee Chairperson and the media liaison officers. No decision had been taken. She wanted to inform participants that the Members of Parliament would present their report to the House of Assembly when the time was right.

Ms Dudley asked for a comment from those who were talking about decriminalisation. She said that it seemed that it was adult pornography that put children at risk as it was what the adults wanted and were looking at that. She asked about the impact of prostitution on children and families and whether there had been an impact study undertaken on the lives of children who were impacted by prostitution. She wondered if the presenters had applied their mind to the fact that it would be harder to prove consensus if there was decriminalisation. What their views were on that issue? Her other point was about crime statistics in countries where sex work had been decriminalised. The information that she had access to showed that in countries where sex work had been decriminalised, the violence crime and murder rates had, in fact, increased and not decreased as suggested. She asked what the experience of the presenters was in terms of those issues.

Dr C Madlopha (ANC) wanted the speakers to be aware that in every research undertaken, there was always limitation of one’s work which meant that one had done research, but the same research could be repeated by a different researcher and those findings might impact on the findings of the original researcher. She had not heard that in the submissions. Secondly, the relevance of the case studies done in the international research was sometimes not applicable to South Africa’s complex situation. She wondered if the research could be repeated in South Africa and whether the findings would be the same.

Christel Lang, Executive Director of Crystal Clear Ministries, stated that MP Cheryl Dudley had already explained what she had meant when she was referring to the relevance of related issues. She saw the seamless interconnection between them - the prostitution, the money laundering, and the trafficking, etc. She acknowledged that she had made reference to some research out of South Africa, but the last reference had related to South Africa in August 2017 when Michael D’Oliveira had handed himself and his co-accused over to the police in respect of the Hawks Operation Madame in Cape Town. In that case, Shantel Bridger and five other prostitutes were also arrested and charged with a range of crimes, including racketeering‚ human trafficking‚ extortion‚ car theft‚ housebreaking‚ robbery‚ fraud and money laundering. There was also a charge of murder of the owner of a night club.

The Chairperson of the Rural Women’s Movement and ANC Member spoke about the attitude of women in rural communities. She noted that those women were so conservative that they considered television programmes such as the “Bold and the Beautiful” to be about prostitution because in programmes like that one found a father-in-law sleeping with a daughter-in-law. She had thought that one of the presenters would have talked about that. That was serious prostitution in the country.

Ms Kunou stated that if the Caucus wanted to have an informed position, Members needed to have statistics so that they knew exactly what they were talking about. Two organisations had said that they had 1500 members and she would like those statistics from the other organisations. Secondly, she had not heard people talking about brothels and pimps. If they were talking about “decrim,” what were they saying about brothels and pimps? Would pimps not abuse women? She asked presenters to tell the Caucus more so that they could broaden their understanding as far as that matter was concerned.

SWEAT stated that there were 1500 members within the movement, but they knew that there were a lot more sex workers out there. They represented a diversity of gender, that is male and female sex workers, transgender sex workers and homosexual sex workers, both indoor and street-based.

Dr Mofokeng stated that decriminalisation would allow industry workers to set their own standards in terms of health and safety as well as employer and employee relationships. Section 23 of the Constitution guaranteed fair practices and the right to form unions. Currently with criminalisation, sex workers did not have that right so there was no recourse when things went wrong. That was why decriminalisation was so important. If sex work were decriminalised, sex workers would be able to use Section 23. She noted that not all pimps were abusive. Some sex workers chose to work in groups because of the safety in numbers. So even if there were decriminalisation some woman would still choose to work in groups.

The abuse of children extended to schooling. For example, sex workers were unable to access bank loans, and some migrated without papers and when it came to getting the children into school was extremely difficult. Whatever one wanted to do in South Africa one was asked for proof of residence and a bank statement and sex workers had neither. Sex workers did not have access to the mainstream economy. Societies needed to be more in enabling and not discriminate against children because of what their parents were doing. There was abuse of children and that was why there were organisations such as Mothers for the Future. If sex work were decriminalised, sex workers could form their own childcare centres. They could employ people would look after the kids when they went to work at night.

Marna Lourens of Social Justice Advocate responded to comments about research that had been undertaken in support of the positions of the organisations. It was important to know what the actual case study was based on. Some studies were undertaken by no more than a single researcher and the research was based on a survey. Other studies started off with 150 countries but owing to lack of data, the results were based on three countries. All research that was quoted had to be carefully checked.

On the basis of law there were many differences between the legal process in France and in South Africa. France had a civil law system which allowed entrapments were as a South African law did not allow for entrapment except in very limited circumstances under section 252 of the Criminal Procedure Act. Sweden also did not allow entrapment which would explain the low number of clients arrested. Over 10 years less than 500 people had been prosecuted. She referred to the linkage between adult pornography and the impact that it had on children, noting that adult pornography was not criminalised. Pornography in South Africa was only criminalised in very specific circumstances and in reference to very specific categories of people. It was important to remember that there were activities that were not criminalised that could have a very negative effect on children.

Ms Robinson asked if it was possible for Marcelle van der Watt to say a few words although he had not been given the opportunity to speak in that session. The Committee chairperson declined her request.

The Committee Chairperson was Programme Chairperson for the fourth session.

Love Justice South Africa submission
Kirsten Hornby was the National Director for Love Justice South Africa, as well as the Director for the National Freedom Network which was a collection of NGOs combating human trafficking in South Africa. She had been working in Gauteng with women in brothels and on the streets and had been exposed to a great deal of violence that she had not yet seen exposed at the Summit. Love Justice supported partial decriminalisation.

Labour trafficking was different from sex trafficking. However, sex trafficking was often exposed because sex trafficking work was illegal and when the police clamped down on sex work organisations, people who had been trafficked for sex came to light. That would not occur if sex work were decriminalised. There were many sex workers who had chosen to sell their body and were satisfied with their choices in life. However, no one had the right to sell anybody else’s body for sex and that was what occurred when the sex industry was legalised

If decriminalization was pursued, it had to be done in a way that respected the rights and dignity of all people in South Africa. Should decriminalisation occur, the following had to be considered:
˗ operating licenses to regulate the work of sex workers
˗ screening procedures, including police clearance and SARS audits
˗ establishment of a helpline for sex workers.
˗ provision of access to premises to law enforcement officers
˗ regulations to make it illegal for sex workers to conceal their HIV status
˗ putting health insurance policies for sex workers in place
˗ ensuring that sex workers had sufficient access to condoms at all times
˗ promotion of the safety of sex workers.

Sisonke Gender Justice submission
Marlise Richter, the policy development and advocacy specialist at Sisonke Gender Justice, indicated that as there had been so many submissions that the core of her submission would be a documentary on a video. The video was about four sex workers who spoke very eloquently about their experiences of violence by the police. Unfortunately, only the sound could be heard, which was problematic as there were sub-titles on the video.

Sisonke was one of the biggest violence-based organisations in South Africa. Sisonke supported the decriminalisation of sex work. Dr Richter drew attention to the very high level of violence suffered by sex workers, which was 2.5 times higher than the level of violence experienced by women in Gauteng generally. She also referred to research that Sisonke had undertaken about police brutality in two provinces in particular, Gauteng and Mpumalanga. One third of the sex workers in those provinces reported being raped by a policeman. Research showed that unless sex work was decriminalised, sex workers would never be safe. The current legal dispensation caused considerable harm to sex workers and their clients. That included stigmatisation, abuse, sexual assault, rape and the transmission of HIV and other STIs. The SALRC Report ignored the abundance of evidence indicating the harm associated with continued criminalisation.

African Centre for Migration and Society submission
Dr Rebecca Walker made a submission on behalf of the African Centre for Migration and Society (ACMS) which is located at the University of the Witwatersrand. She attended with her colleague Jo Veary. One of the main areas of interest of ACMS was the intersection between migration and sex work. The ACMS had published widely on the experiences of sex workers as a result of working closely with sex workers. A key concern was the lack of reference to the quality research that was available in South Africa and which showed the dangers of criminalisation of sex work. She also had a concern that the SALRC had not engaged with a large range of sex workers. The picture was a lot more complex than that presented in the Report. Research showed that there was a significant overlap between sex work and migration and that sex workers were a highly mobile population. There were a number of reasons for that, which included access to client bases, improved working conditions, servicing mobile populations, such as truckers, and to avoid violence and stigma.

Asijiki Coalition submission
Constance Mothando Mathe, the Coordinator of Asijiki Coalition for the Decriminalisation of Sex Work, represented the group which consisted of sex workers, activists, advocates and human rights defenders who advocated for the decriminalisation of sex work in South Africa. The coalition represented 70 organisations. The SALRC Report provided limited evidence, problematic theoretical assumptions and logically unsound arguments, and had taken so long to come out that it was outdated. The Report also made attempts to explain state violence towards women, at one point referring to sex workers who faced arrest as being ‘hysterical.’ The Report conflated sex trafficking with the vast majority of sex workers who were doing sex work voluntarily. The Report also failed to mention the extensive academic literature on the interconnections between sex work criminalisation and HIV transmission. Asijiki did not believe that European solutions should be imposed on South Africa as the sizes of the countries were different and the rate of unemployment was very different. Constance Mathe spoke for herself as a sex worker when she said that she wanted decriminalisation.

Ms Semenya took over as Programme Chairperson for the fifth and final session. She appealed to presenters to keep to their allocated time.

KWANELE submission
Mickey Meji, founder and Head of KWANELE, a movement for black women survivors of prostitution in South Africa, declared that the organisation supported partial criminalisation with punitive measures for the buyer. Partial criminalisation was the only legal framework that would improve the lives of those in the system. Prostitution was linked to a colonial past, inequality and poverty. The organisation was in favour of retaining the term “prostitution.” She represented those who were prostitutes, who were existing in the system of prostitution or had already exited the system. 150 000 people had been prosecuted for prostitution and the majority of those were poor black South Africans. Those who entered prostitution did so because they were forced into it as the result of historical colonialism and apartheid. As a free South African, she refused to use the term “sex work” and did not want to see her abusive experiences normalised. Her problem with the SALRC Report was diversion because the Report did not indicate who would be diverted. Was it to be the man, the woman or everyone involved in the process?

Allie Dee and the Stripperoke Team submission
Allie Dee was a non-South African sex worker living and working in Cape Town and she also represented the StripperokeTeam. She pointed out that the world of the sex worker was far more diversify than simply women sex workers. There was a wide range of people involved in sex work, including men and women, gay and straight, transsexual people, and others who could not be represented by the stereotyped idea of an exploited woman. It was an option for those who did not want to choose a low-level job. Violence and harassment by police sent sex workers into darker, more secluded and more dangerous situations. Arrest was particularly disturbing and dangerous for transgender people.

Forcing full criminalisation of sex workers would simply put their lives at risk. Decriminalisation was needed to keep sex workers safe and for them to be able to maintain their means of subsistence. In particular, it would protect sex workers from police harassment and from being thrown into prison. Stripperoke supported the Women’s Caucus in its efforts to decriminalise sex work and called on the Department of Justice to set aside the SALRC Report, given that it was of poor quality and did not recognise sex workers.

Assaria Sungano submission
Assaria Sungano was a private individual who had come to Parliament to talk about her experience as a prostitute. She had started as a prostitute when she had joined her mother in the sex trade to support the family. She continued prostitution even after her mother had died with nothing to her name. Her husband turned out to be a criminal who was finally murdered and she continued in the sex trade. She had traversed the country. No one had ever asked her what she wanted. She was just given condoms and told about her HIV status. Prostitutes wanted financial empowerment. Women should not have to suffer the indignity and abuse of prostitution. Women were offered more money for sex without condoms and obviously took the additional money. She gave the second half of her slot to Sylvia.

Sylvia Ruka was a survivor of the sex trade. She explained how degrading it was to sell one’s body. She asked whether freedom meant that women could go to the back corners of the street to sell their bodies. She said she had had enough Prostitutes were exposed to abuse and violence and human rights abuses were rife.

Hope for Women submission
The founder and CEO of Hope for Women and Co-Chairperson of Stop Human Trafficking had founded Hope for Women in 2009 with the vision of ending human trafficking and bringing restoration to survivors. Drugs and alcohol were used to keep women in debt bondage to prostitution. Prostitution was not work and the term ‘sex work’ should not be used. Prostitution was damaging, degrading and soul destroying, and children and young women were becoming greater targets in the sex industry. If the country decriminalised sex work, it sent out a message to children and youth that it was an acceptable profession. She asked the summit whether the Caucus was debating a happy life or a meaningful life. Prostitution was an abuse of human rights and maltreatment. It was wrong to decriminalise prostitution. A few weeks ago, the police called Hope for Women to assist in a filthy location where 20 women were supposed to be living. Two weeks later, Hope for Women was called to a trafficking situation where 15 trafficked women had been used for sex work. The country could not legitimise such situations. No one should be talking about a financial transaction for sex work. Decriminalisation would not change what was happening. It would simply suggest that degrading sex for remuneration was an acceptable way of life.

Cause for Justice submission
Liesl Stander, Legal Advisor and Policy Liaison Officer for Cause for Justice, indicated that she wanted to show a set of slides, but it was not technically possible. She reviewed the approaches to prostitution across the world. She linked human trafficking to prostitution. Cause for Justice did not believe that reform was necessary in terms of the legal prescripts for when a review of a law was necessary. The organization believed very strongly that prostitution had to remain criminalized but while the current legal system should be retained, the organization believed that diversion programmes for those found guilty of criminal offences had to offer strong diversion programmes. Adv Stander emphasized that legalising prostitution would only condone humiliation and would further fail socio-economically marginalised women. The organization did not believe that decriminalization could fix the ills of sex work as the harms of prostitution were inherent and severe. The cause of prostitution was not legal, but a result of the socio-economic situation and that was where the remedy should be found, not in the legal system. Legalisation could not provide anyone with human rights.

South African National AIDS Council submission
Ms Steve Letsike, the Deputy Chairperson of the South African National AIDS Council (SANAC), made the submission in the absence of the CEO. She explained that SANAC was a voluntary association intended to drive an enhanced country response to HIV, TB and STIs. The rate of HIV infection was high amongst sex workers. National efforts to arrest new HIV infections would not succeed if new infections amongst sex workers were not stopped. Because sex work was criminalised, it was viewed in a negative light and health care workers and other public servants perpetuated high levels of stigma and discrimination against sex workers. Female and transgender sex workers were often excluded from the community and health system, increasing their vulnerability to illness and negative health outcomes. That was in direct conflict with national and global efforts to increase prevention, diagnosis and treatment initiatives. Ms Letsike believed that the SALRC Report failed to take cognisance of the South African National Sex Worker HIV Plan which already addressed various issues raised as problems in the Report. Decriminalising sex work globally could avert 33 to 46 percent of HIV infections among women sex works in the next decade. SANAC was in partnership with sex workers. SANCA supported the decriminalisation of sex work.

Ayanda Denge submission
Ayanda Denge was a typical sex worker who worked in Greenpoint and had worked on the streets for more than 20 years and was on HIV medication. Ayanda gave recognition to SWEAT for the sex workers being in Parliament that day. Ayanda was advocating for the decriminalisation of sex workers but wondered sometimes if sex workers were being manipulated and that the decriminalisation would mean that some people could remain in their offices. Ayanda had at one time been the Chairperson of SWEAT but the consequence of empowerment would be to go into silos. It was unclear what Ayanda’s message was other than to appear before Parliament as a transgender sex worker and to try to get parliamentarians to realise that they could never understand the horrors of being a sex worker on the street.

The Programme Chairperson stated that it was clear from the submissions and the engagement that there were critical considerations that Members of the Caucus would have to go back and examine. She handed over to the Committee Chairperson.

The Committee Chairperson asked Members of Parliament that those who had questions of clarity send the questions to the Committee Secretary, Bryan Manyti. During her opening remarks, the Chairperson had explained why the Multi-Party Woman’s Caucus was supporting the decriminalisation of sex work. She had alluded to the mandate bestowed on the Caucus by two Women’s Parliament sessions.

The South African SALRC had promised the Summit that day that they would be conducting further research and public participation activities but before the end of 2018. That was encouraging considering that the organisations had clearly been split in half in terms of those in support of the SALRC Report and those organisations that rejected the recommendations contained in the Report. The Caucus understood that sex work was not only a very sensitive matter, but it was also very complex. The differences were not only about a particular model but also about the terminology used. Some organisations were talking about prostitutes while other organisations were talking about sex workers. However, what she did observe was that no matter the position an organisation took everyone had the best interests of the woman in the industry at heart. She would like all organisations there that day to appreciate the common ground which was that they had the best interests of woman in the sex industry at heart.

The diversity of views had richly enhanced the knowledge base of Members of Parliament. She wished to assure everyone that the Steering Committee would present a report on the Summit and that the Steering Committee would continue to engage with the South African SALRC and the Department of Justice and Constitutional Development in order to ensure that appropriate legislation was written to address the issue. She thanked everyone for attending, especially the Members of Parliament.

Meeting adjourned


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