If sex work continues to be criminalised, sex workers will continue to be forced to work in unsafe, abusive and dangerous conditions. Photo: David Harrison
The recent decision by the cabinet to approve the publication of the Criminal Law (Sexual Offences and Related Matters) Amendment Bill, 2022, which proposes to fully decriminalise prostitution and prostitution-related activities in South Africa, is deserving of greater scrutiny.
At the moment, South African law fully criminalises prostitution and prostitution-related activities. This position was interrogated and debated for several years. To arrive at an evidence-backed position, the South African Law Reform Commission (SALRC) published its extensive and authoritative Report on Adult Prostitution in May 2017.
The report recognised that prostitution is exploitation and not work, and recommended that prostitution remain fully criminalised or, alternatively, be partially decriminalised (meaning, only the acts of the prostituted persons are decriminalised).
Despite the reality that prostitution is a gross violation of human dignity and inherently exploitative — blatantly disregarding the SALRC report — the department of justice and constitutional development re-opened the South African prostitution law reform debate on 8 February this year. This renewed interest in full decriminalisation was a mistake. Fully decriminalising an inherently harmful and exploitative system should not be an option.
The SALRC report found that the research proves that prostitution in South Africa is exploitative: most women and girls who enter the system of prostitution are essentially coerced by their dire socioeconomic circumstances, which include poverty, lack of education and inequality. In most cases, they are not exercising a free — or real — choice but adopting a desperate survival strategy.
Many — if not most — persons in prostitution are marginalised and rendered vulnerable by “severely limiting socio-economic circumstances … and … social inequality”. Many women are forced by family members or circumstances to work as prostitutes. Having entered the system, they are further exploited.
Prostitution is characterised by high levels of gender-based violence and inequality. This together with poverty creates a system where women are treated as merchandise. Fully decriminalising prostitution will only increase — and give an implicit nod of approval — to the exploitation of the marginalised and vulnerable.
As one survivor of prostitution remarked, prostitution is based on a system of violence against women and the exploitation inherent in it precludes prostitution from ever realistically being categorised as “work”.
From a human rights perspective, the constitutional court’s observations in S v Jordan 2002 (6) SA 642 are insightful: the human dignity of persons in prostitution is not infringed by laws that criminalise prostitution, but rather by the very nature of prostitution itself. There is only one solution to exploitation through prostitution: abolishing the system, eradicating demand, and supporting the vulnerable and marginalised victims.
The harmful impact of prostitution does not stop at the individual, but spills over into communities and detrimentally affects families and businesses. This is because prostitution is closely associated with other crimes and often takes place where urban decay — caused by poverty, inequality and unemployment — has set in, only exacerbating the existing lack of social cohesion and environmental neglect.
The SALRC contends it would be naïve to presume that fully decriminalising prostitution could separate prostitution and its surrounding crimes, and research evidence agrees. In countries where prostitution has been legalised, such as Australia and the Netherlands, the violence and criminal activity associated with prostitution continue unabated.
The SALRC also interviewed prostituted women extensively in the course of its work. It found the extent of the physical and psychological harm experienced by prostituted persons to be nothing less than horrific. One of the largest international studies done on prostitution found that 63% of women in prostitution were raped, 71% were physically assaulted, and 68% met the criteria for post-traumatic stress disorder.
Research shows that full decriminalisation does not remove the abuse and exploitation inherent in prostitution, but on the contrary, it continues to exist and even increases. Most violence against prostituted persons is inflicted by buyers.
One survivor left the system of prostitution after she was almost killed by a buyer. Another survivor remarked that “sex buyers are violent and they kill us without any mercy, it’s like we are not human”.
According to the SALRC report, buyer violence includes being beaten, raped, robbed, abandoned in isolated places, left naked and thrown or forced to jump from moving vehicles (further exposing women to being robbed and raped by passing men). The reality is that when entering a car, a prostituted person does not know whether she will come back alive — many women in prostitution have been brutally murdered.
The mere fact that money — or any other form of compensation — is exchanged for sexual services does not change the reality of the bodily and psychological violations experienced by prostituted persons. These traumatic violations cannot be regulated away by a system of legalised prostitution but will continue to exist while the law turns a blind eye.
When prostitution — or any aspect of the sexual exploitation industry — is legalised, it normalises buying sexual services which encourages men who would otherwise have been deterred for fear of criminal sanction, to buy sex. Fully decriminalising prostitution only benefits those who gain from the sexual exploitation of others: sex buyers, pimps, brothel owners and sex traffickers.
Prostitution does not exist in isolation. The decriminalisation of prostitution increases the market for commercial sex. Prostitution is connected to and overlaps with the system of sex trafficking much more when compared to countries where prostitution remained illegal.
Fully decriminalising prostitution also risks increasing rates of child prostitution. It creates a façade of legitimacy, which hides ongoing sexual exploitation from law enforcement oversight coupled with even less accountability for perpetrators.
Not all men engage in prostitution, in fact, most don’t. This means men are not instinctively driven to buy sexual services. Neither are men who do so inevitably compelled to — as this would (erroneously) imply some men are so impulsive they are unable to exercise rational decisions and self-control.
On the contrary, research evidence shows that proactive and effective law enforcement against buyers reduces the demand for prostitution. Educating sex buyers about prostitution has also been shown to reduce demand.
The only way to truly help people in prostitution is by providing them with viable opportunities to exit the system of prostitution — or better still, prevent them from needing to turn to prostitution in the first place. Education and training, coupled with job opportunities, give vulnerable and marginalised people access to better options than submitting to prostitution to survive.
People trapped in prostitution face a reality characterised by horrific abuse and exploitation that cannot be legislated away.
“As a poor black woman who was once trapped in prostitution, stripped of my human dignity, labelled and humiliated by our society, I plead with our government to restore our womanhood and not become a vehicle for promoting sexual exploitation, patriarchy, gender-based violence and gender inequality towards vulnerable women by decriminalising the system of prostitution and recognising it as work,” said Hildah Nompy Tlou, a survivor of prostitution.
The heinous human rights violations and inherent harms of the exploitative system of prostitution require an urgent and just response from the government and civil society: stop the demand for sexual services by keeping sex buying fully criminalised and effectively prosecute offenders; abolish the system of prostitution by keeping the activities of pimps, brothels and others who profit or benefit from the prostitution of others fully criminalised and proactively prosecute offenders; and help the vulnerable and marginalised to exit prostitution or never submit to it at all.
The only way to stop the sexual abuse and exploitation of the system of prostitution system is to ensure sex buying, pimping and brothel-keeping remain criminalised — and help those trapped in prostitution to exit the system.
Fully decriminalising prostitution is simply not an option in a caring society based on human dignity, equality and freedom. All people have the right to be protected from sexual abuse and exploitation. All people should be able to enjoy real choices about how to make a living — and none should be forced into prostitution to survive.
The views expressed are those of the author and do not necessarily reflect the official policy or position of the Mail & Guardian.