analysis
Jayne Arnott and
Helen Alexander
On August 3 the Pretoria High Court declared section 20 (1) (a) of the Sexual Offences Act, which prohibits “unlawful carnal intercourse for reward”, unconstitutional. Although it still needs to be confirmed by the Constitutional Court, this ruling means that it will no longer be a crime to sell sex in South Africa. However, keeping a brothel, soliciting and living off the earnings of a sex worker are all still crimes.
The ruling brings into the spotlight an issue which has been debated in South Africa for a number of years: What is the best way to deal with the sex industry?
Sweat (the Sex Worker Education and Advocacy Taskforce) works directly with sex workers, promoting safer sex and human rights among sex workers. Based on its work with sex workers and the experience in other jurisdictions, Sweat believes that the only practical way of dealing with the sex industry is to decriminalise the whole industry and treat sex work as work.
Most sex workers in South Africa enter the sex industry for economic reasons. High levels of poverty and the lack of employment opportunities mean that many women in South Africa are unable to provide for their families. Some of these women turn to prostitution to earn a living.
The protections afforded to other workers (such as those extended under the Basic Conditions of Employment Act) should also be available to sex workers. These protections will shield sex workers from exploitation and from unfair and unsafe working conditions. They will ensure that exploitative brothel owners can be dealt with, without banning brothels completely.
Similarly, where there is an employer-employee relationship between a pimp and street-based sex worker, labour law will protect the sex worker from exploitation.
In their responses to last week’s judgement, many organisations said they believe that legitimising sex work will increase the spread of HIV/Aids. This is not so. In fact the opposite is true. With sex work decriminalised, it will become easier for sex workers to access health care and STD education.
Sex workers will be in a better position to refuse clients who try to insist on unprotected sex. Regulations can also be set up requiring brothel owners to have condoms freely available on their premises and to insist that all their employees practise safer sex.
Street-based sex work often creates a public nuisance for residents. Existing laws have done little to alleviate any of the problems associated with sex work. Police use up precious time and resources arresting sex workers who are often fined and released and are back on the street the next day, earning the money to pay off the fine.
Under a decriminalised system, street-based sex workers will be treated like all other informal traders. They will be permitted to trade in certain areas throughout the city but will be prohibited from trading in other areas, for example outside churches.
Sex workers will also be subject to municipal by-laws against public nuisance (for example laws against public indecency).
Decriminalising of sex work will also mean that sex workers will be better positioned to organise. Sex worker groupings will be able to
represent sex workers at community meetings and enter into agreements on behalf of other sex workers.
Sex worker organisations will also be able to develop standards for the industry. For example, all members of a sex worker group could agree to only offer safer sex.
Criminalisation of the sex industry fails to eradicate sex work and creates numerous problems for sex workers, health officials, police and communities. Practical, workable solutions need to be found to address the concerns associated with sex work, including issues around HIV and public nuisance. Decriminalisation offers a practical solution which will benefit sex workers and all the other stakeholders affected by the sex industry.
Jayne Arnot is director and Helen Alexander is legal advocacy coordinator at the Sex Worker Education and Advocacy Taskforce