In Pursuit of Equality in South Africa

The Right to Work in Peace – Recognising Sex Worker Rights as Human Rights in South Africa

CHARLENE MAY

 

INTRODUCTION

There are a number of laws in South Africa that criminalise various aspects of sex work. Section 20(1) of the Sexual Offences Act of 1957 states that: ‘Any person who has unlawful carnal intercourse1, or commits an act of indecency2, with any other person for reward commits an offence.’

The Sexual Offences Act of 1957 also criminalises a number of acts associated with sex work, such as procurement, brothel keeping, facilitating sex work and living off the earnings of sex work, among others.

Section 11 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 1997 states that:

‘A person (A) who unlawfully and intentionally engages the services of a person 18 years or older (B), for financial or other reward, favour or compensation to B or to a third person (C) –

(a) for the purpose of engaging in a sexual act with B, irrespective of whether the sexual act is committed or not; or

(b) by committing a sexual act with B,

is guilty of engaging the sexual services of a person 18 years or older.’

A number of municipal bylaws criminalise sex work, an example of which can be found in the Cape Town bylaw in respect of Streets, Public Places and Prevention of Nuisance3, which states, among other things, that:

‘no person shall in a public place, perform any sexual act’

‘no person shall in a public place, solicit or importune any person for the purposes of prostitution or immorality’

Historically, our laws have addressed aspects of sex work as far back as 1868, when the Cape Colony enacted the Contagious Disease Prevention Act that compelled sex workers to subject themselves to a medical examination for venereal diseases.

The issue to be decided and explored is whether, under our current Constitutional dispensation, which recognizes and seeks to protect basic human rights, we, as a country, can still justify the need for legislation that criminalises sex work.

This report explores the current context of sex work in South Africa. Part A will explore the impact and effect of the current law on sex workers and the profession, and Part B will focus on the current legislative reform process underway with the South African Law Reform Commission and the Commission for Gender Equality. Part C will deal with the different models available internationally and regionally in respect of sex work, and will conclude with a focus on the proposed model most suitable for South Africa, based upon our international, regional and constitutional obligations.

PART A: THE IMPACT OF THE CURRENT LEGISLATIVE FRAMEWORK 

The South African government has always made the conscious choice to combat sex work through criminalisation. It is also worth noting that the profession garners its own share of moral reservation and stereotypes from general society.

The impact of this on sex workers is, therefore, objective as well as subjective, in that sex workers may internalise society’s view of them being less than human or less worthy of protection and enforcing their rights. Because sex work is criminalised, society seeks to ostracise sex workers from their communities, and the criminalisation contributes to the notion that sex workers are free to be abused and deserve the scorn of society as they are engaging in an unlawful activity.

All of the above contribute to barriers for sex workers to exercise basic rights.

1. Violence against sex workers

Violence against sex workers should be viewed and assessed in the context of the prevalence of gender-based violence in South African society as a whole. In 2004, a study found that a woman is killed every six hours by an intimate partner. In 2004, 15 per cent of the male respondents participating in a study done by the Medical Research Council4 admitted to rape or attempted rape of a partner, wife or girlfriend. On average, the Legal Resources Centre’s (LRC) Cape Town office screens a minimum of three women per week in respect of domestic violence-related abuse.

A number of factors have been identified as the cause of the high rate of gender-based violence in South Africa and although these are relevant to sex workers as well, there is some indication that sex workers, due to the nature of the work and the working conditions, are more likely to experience gender-based and sexual violence. A Sex Workers Education and Advocacy Taskforce (SWEAT) study conducted in 1998 with 25 participants indicated that 16 of the women interviewed had experienced some form of violence at the hands of clients. Eleven of the participants also admitted to being forced into unprotected sex with clients. Violence is not restricted to the outdoor industry and 53 per cent of the women (both indoor as well as outdoor) interviewed for another SWEAT survey conducted in 2007 admitted that they had been physically hurt or verbally abused while working.

2. Police harassment

The South African Police Service (SAPS) has a long history of violence towards the very people they are sworn to protect. During apartheid, the police were used to violate basic human rights and violence was the mechanism used to enforce the apartheid regime. In recent post-apartheid years, the police have remained under fire for the violent methods that they use during protest action; a case in point being the shooting of miners at Marikana, North West province, in 2012. There have also been a number of delictual claims against the Minister of Police in instances where members of the SAPS had been found abusing their power and authority to commit acts of rape and assault. In the 2007 SWEAT survey, 41 per cent of the women interviewed reported having experienced physical violence at the hands of members of the SAPS.

In 20105, the Western Cape High Court found that members of the SAPS were indeed unlawfully harassing sex workers. They would arrest and detain sex workers without the intention of bringing them before court to be charged or prosecuted. The judgment in the matter interdicts members of the SAPS from arresting sex workers without having the intention to bring them before court to face prosecution. Through the LRC’s engagements with sex workers since the judgment was handed down, all evidence suggests that the members of the police have, since 2010, systematically ignored the interdict. Since the judgment, local municipal law enforcement – through an established vice squad – has been profiling sex workers by recording personal details and information and establishing a register of sex workers within the Cape Town CBD. Local law enforcement also systematically makes use of the municipal bylaws to harass sex workers by issuing fines for loitering and disturbing the peace, among others. In the instances where the LRC has appeared in the Community Court to represent sex workers, these fines are not prosecuted and our clients were all advised that the State declined prosecution. Under these circumstances where sex workers are legally represented, court processes are often swayed, and it remains unclear what the outcome would have been had the LRC’s clients not had representation.

Members of the SAPS have also been accused of arresting and then dropping off sex workers kilometres away from where they were arrested or live, often leaving them in remote areas and at risk of serious physical harm. Sex workers report having their genitalia sprayed with pepper spray and police officials extorting money or sexual favours from them in return for their freedom. Sex workers, therefore, either do not report incidents of violence or abuse to the SAPS or they are threatened and intimated with threats of arrest where they do report instances. The police are not viewed by sex workers as individuals who are able to provide them with safety and security.

3. Health and HIV and AIDS

The illegal status of the work directly influences the health of sex workers. Sex workers are very often viewed as a health risk in society as there is a perception that they carry and transmit sexually transmitted diseases and infections. Due to the physiological factors associated with HIV and AIDS, a woman is seven times more likely to get infected with HIV from a man, than to transmit the virus to him. The majority of sex workers in the industry are female and, therefore, the reality is that they are more at risk of being infected by their male clients.

The overarching factor in respect of sex work and HIV and AIDS is the issue of consent and control. Sex workers, especially outdoor-based sex workers, have very-little-to-no control over the conditions and circumstances in which they perform their services. They have very little time to negotiate terms and conditions before they get into a car and have little control over where they are taken once they have been picked up. The lack of control leaves them open to risk of unprotected sex and HIV and AIDS infection. Many sex workers are alienated or abused when seeking medical treatment once they are identified as sex workers by health care providers. The stigma (the illegal nature of the work, as well as the moral judgement) attached to the work, therefore, becomes a very real barrier when accessing health care services.

PART B: CURRENT DEVELOPMENTS IN LEGISLATIVE REFORM

In 2002, the Constitutional Court handed down judgment in the case of S v Jordan6. The minority judgment penned by Oregan J called for legislative process to address sex work within a Constitutional framework. As a result of the judgment, the South African Law Reform Commission (SALRC) was instructed to investigate the context of sex work and to propose legislative reform.

This has been a long and drawn-out process, which culminated in 2009 in the release of the Discussion Paper 0001/2009 titled “Sexual Offences Adult Prostitution”7.

1. The Discussion Paper on Adult Prostitution8

The primary aim of the Discussion Paper is to consider the need for law reform in relation to adult prostitution and to identify alternative policy and legislative responses that might regulate, prevent, deter or reduce prostitution. A secondary aim is to review the fragmented legislative framework that currently regulates adult prostitution.9

The Discussion Paper examines the social and legal context of prostitution in South Africa. A comparative analysis looks at how other countries have addressed prostitution in their laws and the paper concludes with alternative models that could be implemented in South Africa to address adult prostitution.

The Discussion Paper was released for public comment and the SALRC presented the Paper in a number of provinces in its efforts to illicit public comment, contribution and submissions. Through the LRC’s correspondence with the SALRC, we know that a high volume of submissions were received from individuals, institutions, organisations, as well as religious institutions. Due to the high number of submissions and their varying positions, it took some time for the Commission to prepare its report. Through our engagements with the Commission Secretary, the LRC is also aware that a delay was caused in the submission and discussion of the Report internally, as the SALRC was not quorate for some time. The Report was adopted by the Commissioners and submitted to the Minister of Justice and Constitutional Development. There have been a number of off-the-record confirmations from officials within the Department that the Report has been submitted to Cabinet, but nothing official related to this has been released to the public. Rumours abound, however, that government will adopt a Swedish model for the future criminalisation of sex work based upon the SALRC recommendations. Until this is officially confirmed, we have no way of knowing when the Report and its recommendations will be released or whether the Department is in the process of drafting legislation to give effect to the recommendations.

2. The Commission for Gender Equality expresses a view

In 2013, the Commission for Gender Equality (CGE) released its position paper10 calling for decriminalisation of sex work in South Africa. The CGE acknowledges that perceptions about sex work are often based solely on religious opinions, thereby casting sex work as a ‘sin’ and sex workers as ‘fallen or sinful’. This in turn casts the workers into a dichotomy of good and bad girls/women, reducing the issue to morals and values.

The CGE’s view is important in that it distinguishes sex work from prostitution in acknowledging that sex work is a form of labour, whereas prostitution is viewed as coerced sex work where women have no choice in the matter. They, therefore, acknowledge the views expressed by sex workers with whom the LRC works, in viewing sex work as a right to self-determination and emphasising the freedom of choice of profession.

The CGE comes to the conclusion that criminalisation has, in fact, failed sex workers. It has failed to reduce the offences committed against sex workers, such as physical and sexual violence. Instead, they have found that ongoing criminalisation has led to the harassment and abuse of sex workers at the hands of the SAPS, the very people meant to enforce the law and protect sex workers.

Sex work should, therefore, be discussed in the same vein as frameworks put in place for the adult entertainment industry, adult shops, strip clubs and adult film theatres. The CGE findings are largely based on their own research conducted on the impact of decriminalisation in other jurisdictions, such as New Zealand and parts of the city of Sydney in Australia. They have found that, five years after decriminalisation in New Zealand, the law reform has had positive impacts on sex workers. Sex workers have been empowered against violence and abuse and are equipped to seek interventions from the police. There was no increase in trafficking or commercial sexual exploitation of women and children and no increase in demand for sex. The CGE, therefore, endorses a position that sex work, in principle, should be viewed like any other profession and that it should be regulated like any other profession. The position is one that seeks to affirm the basic human rights that are the foundation of the South African Constitution.

PART C: SEX WORK RECOGNITION IN OTHER JURISDICTIONS

South Africa is not unique in having to grapple with the legal framework surrounding sex work. Based upon the discussion in the introductory sections of this paper, it is clear that the debate and legal implications surrounding the industry has been a historic one. As discussed, South Africa currently has a criminalisation model and, in order to evaluate its efficacy as a law reform process, it is critical to evaluate other jurisdictions, the models that they have applied and the impact that these models have had on sex workers.

1. Total criminalisation

Along with South Africa, the United States of America (USA) and Thailand are examples of total criminalisation, as identified by the SALRC.

  • The Federal Government of the USA opposes legalised sex work and supports criminalisation based on the justification that prostitution is inherently harmful and dehumanising, and fuels trafficking in persons.11
  • Despite the official approach of full criminalisation, sex work is significantly popular and socially acceptable in Thailand. The official position, however, is full criminalisation, and this is justified by the Suppression of Prostitution Act of 1996, which seeks to safeguard the welfare of and protect women and children from exploitation.

2. Partial criminalisation

Often referred to as the Swedish model (the model being implemented and conceptualised in Sweden), partial criminalisation is also the model followed in the United Kingdom (UK).

  • In Sweden, the clients of the sex worker are criminalised. The justification of the law is to reduce male violence against women and children. The model is based on the presumption that, by criminalising the buyer, you will reduce the demand for commercial sex and the oppression of sex workers.12
  • In the UK, brothel keeping, pimping and under-age prostitution are illegal, but not the act of sex work itself. The justification for the legislation is the protection of the public from sexual crimes, while at the same time protecting the rights of adults to a private life. The law also contains mechanisms for routes out of sex work, prevention and obviating the demand for commercial sex.

Partial criminalisation can, therefore, take different forms, from the Swedish model that seeks to reduce the demand for commercial sex, to the UK model that is focused on third party exploitation through commercial sex.

3. Non-criminalisation

Also often referred to as decriminalisation, non-criminalisation is focused on the repealing of existing laws that criminalise sex work, or not having any laws.

New Zealand has adopted a non-criminalisation model and, in doing so, stated that although government does not endorse or morally sanction sex work, there is a greater need and obligation to safeguard the rights and safety of sex workers and to minimise the harm caused by sex work13.

4. Regulation

In certain countries there has been acceptance by government of the age-old practice of commercial sex. To this end, the governments have adopted an approach that seeks to regulate the industry.

  • The Netherlands accepts sex work and seeks to regulate the industry in efforts to protect sex workers from exploitation, prevent involuntary sex work and advance the rights of sex workers14.
  • Germany has opted for regulation in order to remove the stigma attached to sex work and to strengthen the labour rights of sex workers15.

The above are mere elements to attempt to bring clarity on the differing models. The SALRC, in their Discussion Paper of 2009, provides a much more comprehensive analysis of the varying models. Different jurisdictions have approached the legislation of sex work in different ways so as to adapt it to the needs, duties and responsibilities of that country.

5. Why is decriminalisation the model most appropriate for South Africa to adopt?

South Africa currently criminalises all aspects related to sex work, as discussed in earlier sections. The LRC, along with other civil society organisations, have been advocating for a decriminalisation model, as we believe, based upon our engagements with sex workers, as well as our research and engagements at the regional and international level, that sex work must be dealt with within a rights-based legal framework.

Only through adopting a legal framework in which we place the rights of the sex worker as the priority obligation, will we be able to meet our Constitutional obligations towards sex workers. The current approach of using the very rights that sex workers have to criminalise their choice of profession is surely a violation of their rights and a false dichotomy?

Criminalisation violates the rights of sex workers and, therefore, through decriminalisation, we will be able to ensure that sex workers enjoy their Constitutional rights through choosing their own profession, and seeking the labour rights that all other employees in the country enjoy and find protection under.

Criminalisation continues to fuel society’s negative perceptions and stereotypes about the profession. These negative stereotypes disproportionately affect women, as sex workers are predominantly women. Decriminalising the sex worker industry  validates and acknowledges sex work as a profession, which enables the breaking down and eradication of harmful stereotypes.

Criminalisation in its current form increases sex workers’ risk of contracting sexually transmitted diseases, especially HIV and AIDS. It contributes to the violation of the right to health and impedes government’s efforts towards the eradication of HIV and AIDS. By decriminalising the industry, sex workers will be able to enforce safe sex, make health choices concerning themselves and the profession, and participate in policy formulation that concerns them.

Criminalisation is more often than not justified by stating that it protects sex workers from violence and abuse. It is the means through which government meets their Constitutional imperative to ensure the safety and security of women. Decriminalisation would ensure that sex workers’ rights to freedom and security of the person16, which includes the right to be free from arbitrary arrest and detention17, the right to be free from violence18 and the right to bodily and psychological integrity19, are respected, protected and promoted. Sex workers will be able to access justice by not fearing the very institutions that have been designed to ensure their safety and security.


 

  1. Sex other than between husband and wife.
  2. An act that is considered immoral or offensive to others.
  3. Bylaw no. PG6469.
  4. Mathews, Abrahams, Martin, Vetten, Van der Merwe and Jewkes Every six hours a woman is killed by her intimate partner: A Study of Female Homicide in South Africa (2004). 
  5. SWEAT v The Minister of Safety and Security and Others 2009 (6) SA 513 (WC).
  6. S v Jordan and Others (CCT31/01) 2002 ZACC 22.
  7. South African Law Reform Commission Discussion Paper 0001/2009 Project 107 ISBN 978-0-621-38498-7.
  8. The SALRC purposefully decided not to use the term sex worker in its processes so as to appear unbiased in their approach to the research, its analysis and their recommendations.
  9. Summary of the Discussion Paper on Adult Prostitution SALRC. 
  10. http://www.gov.za/sites/www.gov.za/files/Commission%20for%20gender%20equality%20on%20sex%20work_a.pdf
  11. US Department of State The Link between Prostitution and Sex Trafficking (2004). 
  12. De Santis Sweden’s Prostitution Solution (2004). 
  13.  Section 3 of the Prostitution Reform Act 2003. 
  14. Article 250a of the Dutch Penal Code.
  15. Administrative Court Berlin (Az:35 A 570.99) 1 December 2000.
  16. Section 12(1) of the Constitution Act 108 of 1996.
  17. Section 12(1)(a)–(b).
  18. Section 12(1)(c). 
  19. Section 12(2).