Nawaal Deane
Whether or not prostitutes can ply their trade freely or be thrown in jail for selling sex was a debate that packed out the courtroom at the Constitutional Court this week.
The main arguments focused on the rights of sex workers to do their job against the moral consequences legalising the profession could have on South African society.
Amid the crowd who flocked to hear two days of argument were legal professionals, brothel owners, activists and the odd sex worker all listening to views presented to the judges, which challenged the constitutionality of a section of the Sexual Offences Act that says having “unlawful carnal intercourse for reward” is a crime.
The opponents were the state, a feisty brothel owner, Ellen Jordan, and a number of organisations making up amici curiae friends of the court.
The case arose from a Pretoria High Court ruling last August that the criminalisation of prostitutes was unconstitutional but brothel-keeping was not. Jordan and two of her employees, in a groundbreaking move, took the case to the court to appeal against the refusal to declare brothel-keeping constitutional. In an affidavit, she said brothels have an important role to play in the protection of sex workers and perceptions about brothels cannot be generalised.
Minister of Justice and Constitutional Development Penuell Maduna put his weight behind the Act, warning in court papers that the court should not declare the section unconstitutional. “It would lead to undesirable consequences if any provision of the Act were to be declared unconstitutional. This would create a vacuum during which there would be no regulation of sex work whatsoever.” He said if prostitution were legalised South Africa would be “the worst of all possible worlds”.
The law as it stands gives no protection to sex workers and contributes to their status as outcasts argued advocate Gilbert Marcus, SC, representing the activists who support legalisation of the industry.
The state blamed prostitutes for the spread of HIV/Aids and other sexually transmitted diseases. According to the state, legalisation would result in an increase in the trafficking of sex workers, drug abuse and child prostitution. “Prostitution contributes to the spread of these diseases [HIV/Aids and sexually transmitted diseases] once prostitutes are infected the infection is likely to spread to clients since many commercial sex acts occur in situations which are not protected by condoms,” said Andries de Vries, director of public prosecutions for the Witwatersrand local division in an affidavit.
But David Unterhalter, SC, one of the advocates representing Jordan, said that it is precisely because prostitution is criminalised that social ills are exacerbated rather than suppressed. Sex workers have no access to public health or police protection.
Marcus also slammed the state’s position, saying that sex workers are stigmatised and disempowered from seeking the law’s protection and health care. “Reporting cases of assault exposes sex workers to the risk of prosecution. Access to social support is effectively cut off,” he told the court. He said many prostitutes are exploited as a consequence of the criminalisation of the profession. “This segment of society is largely poor, and overwhelmingly women who are vulnerable to various forms of exploitation most prostitutes operate in unsafe, unfair and poor working conditions.”
Judges questioned whether the legalisation in other democracies led to an increase in social ills. The state cited Australia and Thailand as two countries that passed legislation legalising prostitution and then saw an accompanying rise in related social problems.
Ensuring prostitutes have regular HIV tests would be time-consuming and ensuring they are using condoms would be intrusive, argued De Vries. Legislation would send the message that prostitution is an acceptable way to earn money, and could lead to an influx of women into the industry.
But Jordan said in her affidavit that the Act is archaic and has its origins in a statutory and historical context that is not compatible with the present constitutional dispensation. The sex worker’s rights to dignity, freedom to control her own body, privacy, equality and to engage in economic activity are violated by sections of the Act.
Supporting these rights, Shanee Stein, advocate for the Commission for Gender Equality, raised the issue of equality between the client and the prostitute. She said there is “unfair discrimination” in the Act because the prostitute is labelled a criminal and her client receives a lesser punishment, if any.
In response, state counsel, Wim Trengove, SC, said the law punishes the seller, not the buyer, as in the case of drug dealers. He points out that the “law allows a prostitute to do what she wants with her body the only option taken away is that she is not allowed to charge for it”.
The state also submitted the recommendation that the Constitutional Court should withhold a ruling until Parliament drafted appropriate legislation to regulate prostitution and brothel-keeping.
Judgement was reserved.