How sex work is regulated strongly influences how safe workers’ jobs are. In South Africa, where laws make it illegal to buy or sell sex. (Delwyn Verasamy/M&G)
It was with much interest that we read the recent article in the Mail & Guardian (“Human rights group rejects the sex trade bill”, 20 January 2022, also published online.)
Debates on sex work — or as some still call it, prostitution — are as old as humanity itself.
Liberal and radical feminists have well-documented debates about the treatment of sex workers. The debates ebb and flow between regulatory frameworks and conceptual arguments on the right to choice and self-determination.
Many other crimes are mentioned in the same arguments, along with sex work, for example organised crime, police corruption, child sex work and human trafficking. These crimes have a devastating impact on society. It stands to reason that the blanket criminalisation of sex work drives sex work underground, makes it hidden and thus creates a fertile environment for these crimes to germinate in our communities.
The Department of Justice and Constitutional Development recently published the Criminal Law (Sexual Offences and Related Matters) Amendment Bill for public comment. The bill seeks the decriminalisation of sex work as well as expunging the criminal records of those who have been convicted of sex work in the past.
The M&G article claims that the bill will “give little to no relief” to sex workers. We, on the other hand, believe that it will.
Currently, sex work is criminalised by way of two statutes, namely the Sexual Offences Act, 1957 (Act No. 23 of 1957), previously called the Immorality Act, and the Criminal Law (Sexual Offenses and Related Matters) Amendment Act 32, 2007 (Act No. 32 of 2007).
The legislative framework that currently regulates sex is also fragmented, as the Sexual Offenses Act, 1957, has already been partially repealed, with the remaining sections on sex work awaiting review.
Decriminalisation or non-criminalisation has the effect of repealing all the laws against sex work and it removes the provisions in our laws that criminalise sex work. For us, this is a necessary intervention because it will enable us to reach a point where we are able to make a distinction between voluntary sex work, where a sex worker chooses to be a sex worker, as opposed to involuntary sex work, that is forced sex work or sexual exploitation or trafficking.
The continued criminalisation of sex work means that sex workers — of whom the overwhelming majority are women or transgender persons — are left extremely vulnerable. They face human rights violations on a daily basis.
There is no doubt whatsoever that the continued criminalisation of sex work leads to gender-based violence. The ANC-led government has already put a number of initiatives on the table as part of its efforts to eradicate gender-based violence. This bill is no exception.
A report titled Equal Rights, Human Rights — Protecting the rights of sex workers: Evidence on human rights violations, 2022 was released in December last year by a number of regional institutions. It states clearly that sex workers deserve equal protection of their human rights under the law as society as a whole.
And yet, studies show that sex workers continually have their human rights violated. The ongoing criminalisation of sex work further contributes to gender-based violence and femicide as it leaves sex workers unprotected by the law, unable to exercise their rights as citizens and open to abuse generally.
For this reason, the ANC, in its 54th national conference resolutions, stated that “the calls to decriminalise sex work must be subjected to a high-level discussion and engagement with relevant multiple stakeholders and to continue to engage society on this to determine the societal norm. Sex workers must be protected.” This was echoed in the ANC’s 55th draft conference resolutions.
We believe that decriminalisation will minimise human rights violations against sex workers, give them better access to healthcare and reproductive health services and will also mean compliance with health and safety and labour legislation. It will make it easier for law enforcement to investigate and prevent human trafficking.
The bill does not regulate the sex trade. It follows a two-step approach, in that it does not decriminalise and regulate the industry all at once. It deals with decriminalisation only, with regulation to follow at a later stage. It is important to take into consideration that our existing laws prohibiting children from selling sex and trafficking for sexual purposes remain in force.
In response to those saying that brothels will now suddenly pop up all over their suburbs, this is not the case as municipal bylaws would remain in place and would still provide where solicitation in public spaces may or may not take place, for example, prohibiting the selling of sex in certain areas.
Sex workers are people. They are entitled to the very same human rights as everyone else. We must move away from a society that polices bodies and sexuality to a society which asserts human rights for all.
— This article has been edited for brevity.
Moropene Ramokgopa is the second deputy secretary general of the ANC and national coordinator of the ANC Women’s League task team.