Thuli Nhlapo The South African Law Commission confirmed it is conducting research on the subject of commercial sex work within the ambit of reviewing current sexual offences legislation – but said the process was still at a “sensitive stage”. The discussion paper on the matter, according to the commission, might be available by the end of next month. The commercial sex industry – still criminalised according to the Sexual Offences Act, though few have been prosecuted – is in a state of limbo. This leaves many sex workers vulnerable to, among other things, exploitation, risk of contracting HIV/Aids and physical abuse.
“There is a double standard on the part of government. It is a crime to make money out of sex, but not to buy sex,” says Natasha Distiller of the Sex Workers Education and Advocacy Task Force (Sweat). Distiller argues that decriminalising commercial sex work could be the first step in addressing the problems faced by adult commercial sex workers. Helene Combrick of the University of the Western Cape’s Community Law Centre gender unit refers to decriminalisation as the removal of laws that criminalise commercial sex work. However, current criminal sanctions are frequently not enforced, either through police not making arrests or the prosecuting authority not instituting criminal proceedings against those who are arrested.
The removal of general criminal sanctions against commercial sex work coupled with measures aimed at state regulation by means of either legislation or internal industry legislation will legalise commercial sex work. According to Combrick legalisation represents a compromise that reflects the state attitude which accepts that commercial sex work will never be eradicated but assumes it is in the best interest of the state authorities to implement ways of controlling and containing the industry. It is only through legalising commercial sex work that the state can share in the industry’s profit. Earlier this year at the Adult Commercial Sex Workers Conference in Cape Town Lebo Malepe of the Tswaranang Legal Advocacy Centre presented the Canadian perspective – a country where sex work is not prohibited.
Malepe said that decriminalising commercial sex work was not necessarily “an end in itself” but should rather be viewed as a better short-term solution. She said that positive measures with a direct bearing on the conditions of sex workers, together with those that will provide options for women who want to continue working in the profession, will follow decriminalisation. According to Palesa Makhetha, a representative of the National Network on Violence against Women, legalising commercial sex work is the way to go, especially in addressing the issue of minors involved in sex work. Makhetha added that women who were mistreated by their clients would then enjoy the protection of the justice system, with labour and health issues also taken into consideration.
Although Makhetha said that commercial sex workers should benefit from free access to health facilities, she pointed out that the very benefit could be a disadvantage when clients refuse to take necessary precautions like wearing a condom, simply because they believe that women were having regular medical check-ups and are therefore “safe”. She added that her organisation was not “condoning” sex work, but merely wanted to ensure that women’s rights were protected. While the commission is researching options for the commercial sex industry, Combrink warned against creating a two-tier industry with both legal and illegal sectors.
An illustration of this is in the state of Nevada in the United States, where so-called indoor sex work is legalised, provided it is limited to state-run brothels. In Victoria, Australia, street sex remains illegal. Combrink said both France and New South Wales in Australia have undergone the process of decriminalising outdoor sex work, but municipal “nuisance laws” were used to such an extent to arrest sex workers that it equalled those made when street solicitation was illegal.