Aside from the economic benefits, urgent decriminalisation is needed to ensure constitutional rights of the country’s estimated 153 000 sex workers. (John McCann/M&G)
There are growing calls by civil society organisations, activists and sex workers for President Cyril Ramaphosa to take urgent steps to mandate the department of justice and constitutional development to fast-track the sex work law reform process and decriminalise sex work.
This is in order to address the evident exclusion of sex workers in accessing labour rights, being protected against violations and being discriminated against based on their profession. Although decriminalisation is the immediate priority, there is a long-term call for the department and the South African parliament to legalise licensed, regulated, and taxed safe sex work for consenting adults in private or in a local brothel setting.
Sex work in South Africa is criminalised in section 20(1)(aA) of the Sexual Offences Act, 1957, which states that any person who has unlawful carnal intercourse or commits an act of indecency with any other person for reward, is guilty of an offence.
The criminalisation may also be found in municipal by-laws that include provisions that prohibit sex work. Other aspects of sex work are also prohibited such as running or owning a brothel, living off the earnings of “prostitution” and enticing a person into “prostitution”.
On May 2017, the South African Law Reform Commission (SALRC) launched the Report on Sexual Offences: Adult prostitution. In this report, the commission views sex work as violence against womxn, and perpetuates the understanding that sex workers are victimised because of their employment, and not because of the context in which their work occurs.
It fails to meaningfully address violence against sex workers and to recognise the evidence-based research that demonstrates the benefits of the decriminalisation of sex work on sex workers health, well-being and human rights. The report recommends sex workers be rehabilitated through diversion programmes that provide intensive therapy and vocational training.
There are strong reasons why sex work must be decriminalised in South Africa. Below are 10 reasons among many others why decriminalisation is not only important but a matter of urgency.
The concept of sex work is evolving, especially in light of technology and sexual liberation. Sex work now extends to activities such as webcam pornographic modelling, phone sex operators, erotic massage services, sexual surrogacy, escort services or sugar baby/blessee relationships. In terms of technology, there is an increase in subscription services for adult content such as OnlyFans in which social media creators offer selfies, tips, information, tutorials, as well as sex work and get paid for their content.
The evolution of sex work challenges the so-called “legal convictions of the community” and the “decency” of the work because it is no longer just about intercourse and there is an increase in people participating by “choice”.
The laws and subsequent marginalisation of sex workers makes them more vulnerable to assault by the police, clients, third parties and brothel owners. Sex workers are often targeted by the police and are more vulnerable to violence because they have to work in dangerous and isolated locations to evade attention.
Criminalisation makes sex work less safe. It undermines sex workers’ access to justice for crimes committed against them and exposes them to unchecked abuse and exploitation. There is fear, emotional pain and frustration that South African sex workers experience.
The department of health’s National Strategic Plan on HIV for Sex Workers is grounded in respecting the human rights of sex workers and non-discrimination in accessing health services. Criminalisation hinders sex workers’ efforts to access health care, including HIV prevention, treatment, care and support.
In the case of Jordan v The State 2002 (6) SA 642 (CC), a brothel owner, a brothel employee and a prostitute were convicted for contravening the Sexual Offences Act and appealed the decision on the basis that the relevant provisions of the Sexual Offences Act were unconstitutional. The case involved an amicus curiae, or friend of the court, who filed affidavits from sex workers to support their submissions. It was clear from these affidavits that although most of them were motivated by the money to be made, they were at peace with the work they do.
This shows that there is a difference between voluntary and coerced sex work and the former is the one we need to regulate. Therefore, those who engage in sex work voluntarily should be awarded the freedom to practice their trade, occupation and profession freely.
The criminalisation of sex work has not deterred people from selling sex to make a living – the industry is in fact growing. According to the South African National Aids Council, there are an estimated 153 000 sex workers in South Africa. The South African government may greatly benefit from regulating this industry and taxing its operation. It is easier to police a legal trade than an illegal one. Developing administrative law will see sex workers through business and health regulations, fiscal rules and local policies.
Most sex workers in South Africa are black, female, and sell sex primarily in order to support their dependents. Economically, black females are at the bottom of the food chain in our economy due to several systematic exclusions. In not regulating and decriminalising this industry, the government is denying black females’ economic empowerment and financial security. The government itself has failed to adequately provide financial security for a lot of these womxn. We are still yet to see the effectiveness of the recommended diversion programmes and it is uncertain if there has ever been a budget allocated to them.
There is an unemployment and economic crisis in South Africa. We need to expand into untapped markets and industries. Sex work industries make a lot of money and it has been estimated that it is a billion dollar/euro industry. The market is domestic and international in nature and has the potential to improve job creation in South Africa, especially in light of the various activities that an individual can decide to offer their services in.
Although not binding and still controversial, the World Charter for Prostitutes’ Rights calls for the decriminalisation of all aspects of adult sex work resulting from individual decisions (voluntary) because freedom of choice of individuals is important. Sex work is a legitimate activity, which must be recognised and regulated, in order to protect the rights of sex workers and to prevent abuse.
The charter also states that sex workers should be guaranteed all human rights and civil liberties including the freedom of speech, travel, immigration, work, marriage and motherhood, as well as the right to unemployment insurance, health insurance and housing. Countries such as the Netherlands, Mexico, Germany and Colombia are regulating the industries well.
Criminalisation gives effect to a lack of essential human rights protection entrenched in South Africa’s Constitution. These rights include the rights to human dignity, bodily and psychological integrity, access to health, the right to be free from all forms of violence and not to be punished in a cruel, inhuman or degrading way, the right to privacy, the right to freedom of expression, rights regarding an arrest not being effected, equality rights in terms of the amount of discrimination they face, et cetera.
These are too many essential rights to limit and not take into consideration when speaking on criminalisation. It equally indirectly contributes to gender inequality because this industry mainly includes womxn, so we are denying many vulnerable and marginalised womxn of their constitutional rights all in the name of legal convictions of the community.
The application of labour laws is important for sex workers as will help in ensuring workplace health and safety, access to the Unempoloyment Insurance Fund, regulating employment relations between brothel owners and sex workers as well as legal support to seek redressal in cases of injury or exploitation. Without these protections sex workers are limited in their ability to enforce contracts, claim welfare, obtain credit or make civil claims in family and property matters in courts.
There is overwhelming evidence that shows the ongoing harm caused by criminalisation but also evidence to show the benefits of decriminalising sex work. The department and parliament need to see the decriminalisation as an opportunity to protect essential human rights, grow the economy through job creation and decrease black market abuse and trafficking of people who are forced and have not consented.
Sex work is evolving and technology is making it easier to participate. The sooner we accept that “sex work is work”, the better.
Karabo Mokgonyana is an award-winning legal and development practitioner and programme director for the Sesi Fellowship and Skill Hub, a womxn- and youth-led organisation that provides young womxn with mentorship and skills development.
The views expressed are those of the author and do not necessarily reflect the official policy or position of the Mail & Guardian.