Decriminalisation of sex work
Parliament held a roundtable discussion on the decriminalisation of sex work in South Africa, with submissions made by the Commission for Gender Equality (CGE); Sex Workers Education and Advocacy Taskforce (SWEAT); Sisonke Sex Workers Movement; South African Law Reform Commission (SALRC); Department of Justice and the South African Parliamentary Legal Service.
According to the CGE, the current legal regime in South Africa is difficult to implement and enforce, and has not resulted in a reduction of sex work, or a reduction in the violence against sex workers. Instead, it has actually harmed sex workers by denying them their human and constitutional rights, does not allow them access to legal protection and leads to harassment and abuse by police. The following rights were specifically denied: Section 10: Human Dignity - everyone has inherent dignity and the right to have their dignity respected; Section 12: Freedom and Security - everyone has the right to bodily and psychological integrity, which includes the right to security and control over their body; and Section 22: Freedom of trade, occupation and profession - every citizen has the right to choose their trade, occupation or profession freely. In their view, decriminalisation will allow sex workers to form unions and challenge unfair labour conditions, be free of discrimination, reach optimal levels of health and be freed from arbitrary arrest and detention, violence, and promote the right to bodily and psychological integrity.
The participating organisations highlighted that South Africa has already ratified various conventions in support of the rights of sex workers but the country still does not have domestic legislation that addresses the unique challenges faced by sex workers. Throughout, it was emphasised that decriminalisation was requested only in respect of voluntary sex work that involved adults.
The CGE informed MPs that race also influenced inequality. In poor areas, more black and coloured people engaged in sex work on the street and were therefore more prone to being detained by the police force whereas their white counterparts did their work in enclosed, undeclared brothels and could not be detained.
SWEAT noted the Women's Legal Centre's latest report of physical assault, rape, harassment and unlawful arrest that were reported to the centre. There were 682 instances of abuse, mostly harassment and verbal abuse at the hands of the police, reported to WLC by 414 sex workers. Out of these: 13 encountered sexual abuse, 71 were physically assaulted, 152 were verbally abused, 192 experienced harassment, 254 experienced some form of abuse of human rights violation, 43 were driven around aimlessly in police vans, 53 were photographed after being sprayed with pepper spray on their private parts “as a joke”, 83 were given no medical assessment. Once detained their possessions were removed, including the ARVs of the HIV positive sex workers, which would exacerbate their condition, 100 were given no food to eat and/or no water to drink, 117 experienced the conditions of a bad cell, 142 were not allowed to make nor receive any phone calls, 148 were denied visits by family and friends.
SALRC reported that the current legal framework criminalising sex work was upheld as constitutionally sound. The government therefore is not constitutionally obligated to change the existing law. Instead, it would be a policy choice whether to do so. There were a range of legal responses possible to address prostitution in democratic societies. Currently, there is no national strategy to assist South Africans out of prostitution. South African prostitution is driven by a complex intersection of social and economic factors in which poverty; unemployment and inequality were key drivers.
The Commission cautioned that a radical shift in the legislative framework should not cause a cultural shift which would render women more vulnerable and that non-criminalisation would not necessarily address the other illegal activities linked to it, or the violence. There was debate if the legalisation model would address the power imbalance or reduce the demand for unsafe or high risk sex. It might even normalise coercion and the expendability of women. It would undoubtedly increase demand locally and internationally. Even proponents for decriminalisation acknowledged this. The model of partial decriminalisation, in which the buyer was the only offender, would not end prostitution, but was aimed at a significant reduction and it would target the demand.
However, SALRC advised non-legislative remedial actions. It thought that non-legislative actions that did not encompass law reform would be more effective in dealing with this: Institutional Intervention such as skills development programmes; transactional relationships as a social phenomenon should be investigated from a social and gender-based violence intervention perspective. Allegations against Police: SAPS and the Independent Police Investigative Directorate (IPID) should investigate reports of unlawful conduct by officers and provide guidelines for police conduct. There could be an administrative mechanism for monitoring reports of police unlawful conduct. Access Social and Health-care Services: Address discriminatory behaviour of health care workers by means of internal complaints mechanisms or equality legislation and the Department of Social Development should become involved.
MPs were advised about how they could assist in decriminalising sex work from within the Joint Multi-party Women’s Caucus. The first step is to promote awareness of the issue. Submissions can be made to the Portfolio and Select Committees charged with oversight of women’s issues. A motion for discussion or debate can be raised in Parliament, as well as with women in political structures outside of Parliament. The matter can also be raised in annual reports to the Houses of Parliament, as well as the submission of substantive reports and proposals on the decriminalisation of sex work to the relevant parliamentary committees. Members asked about quantitative research, why there was a focus on HIV/AIDS and if other disease burdens were considered, criticised the sometimes vague terminology, asked how many foreign nationals participated in the industry, the trends, and the suitability of the countries chosen for comparison.