In a turn-up for the books, President Cyril Ramaphosa has kept a promise – and the Department of Justice wrote an exquisitely brief Bill – to fully legalise sex work involving consenting adults.
In 2019, Ramaphosa told an audience of women’s and civil society organisations: ‘We will work with all stakeholders to develop policy around the decriminalisation of sex work.’
In 2020, the National Strategic Plan on Gender-Based Violence & Femicide was published, which had as one of its targets promulgating legislation to decriminalise sex work.
Earlier this month, the Department of Justice finally published the Criminal Law (Sexual Offences and Related Matters) Amendment Bill of 2022 (not to be confused with several identically named Acts previously passed in 2007, 2012, 2015 and 2021). It invited the public to submit comments by 31 January 2023.
This Bill proposes to repeal all legislation that criminalises any kind of sex work engaged in by consenting adults, regardless of whether they’re buying or selling.
This includes the repeal of what remains of the Sexual Offences Act (previously the Immorality Act) of 1957, which besides prostitution also once prohibited intercourse across the colour lines and described sex outside of marriage as ‘unlawful carnal intercourse’.
All the modern laws about rape and sexual assault, and particularly the omnibus Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 and its amendments – which completely overhauled the prosecution of sexual offences in South Africa – remain intact. The sole exception is Section 11 of that Act, which pertains to ‘engaging sexual services of persons 18 years or older’, and criminalises both prostitutes and their clients.
Expunged
It doesn’t replace the repealed laws with anything else. Ongoing criminal cases are to be withdrawn, and criminal records for anyone convicted under the existing laws are to be expunged.
The government has a penchant for writing very lengthy laws that seek to micro-manage every aspect of an industry and appoint commissioners and bureaucrats to lucrative regulatory sinecures, but this Bill is a model of brevity, clarity and restraint. Its text runs to just over one page. Even my summary looks rather verbose beside it.
The campaign to decriminalise sex work has deep roots, going back to the 1970s in South Africa. It took on a whole new hue around 1994, when the cause was recast in the language of human rights.
Unfortunately for sex workers, black South African society was at least as conservative and religious as white South African society had been during Apartheid, and viewed prostitution as a culprit for the spread of HIV/AIDS and numerous other ills in society.
Still, groups like Human Rights Watch, Sonke Gender Justice, and the Sex Workers Education & Advocacy Taskforce (SWEAT) continued their campaigns to decriminalise sex work.
Their arguments rested largely on utilitarian considerations, namely that decriminalising sex work would protect sex workers from exploitation, extortion, illness and violence.
Extortion
Not having to work underground in the shadows will not eliminate these problems, of course. After all, sex workers, whether male or female, are typically in desperate straits, often drug-addicted, and vulnerable to exploitation.
However, it will reduce these problems and render them more amenable to practical intervention. It will also grant sex workers legal recourse, so they don’t have to live in fear of both the criminal underworld and the government.
For example, legalising sex work will put an end to the routine extortion and rape of sex workers by police officers who demand either cash payoffs or sexual services in return for not filing criminal charges.
In an article in June last year, in which I reminded Ramaphosa of his promise two years earlier and wondered what the holdup was, I laid out all the arguments for legalising sex work, not only on utilitarian grounds, but also on the basis of basic human rights and freedoms.
I need not repeat those arguments here and, taking inspiration from the brevity of the Bill itself, will keep my vote of approval short.
Modern, liberal approach
Government and society’s moral busybodies have no business telling people with whom, or why, they may have sex, provided all parties to the agreement are consenting adults.
The prohibition of sex work was never going to supress it, and has done untold harm to sex workers, their clients, and society at large. Sex work violates the rights of exactly nobody, so there is no reason why it should be illegal.
It is long overdue that government takes a modern, liberal approach to the issues raised by sex work, and instead of persecuting sex workers and their clients, works with them to combat the crimes committed against them.
Of course, many people in society won’t like it. But then, many people in society don’t like gay people. Or cis-het white males. Or black people. Or rich people. Or women. Or religious people. Or atheists. Or capitalists. Or communists. Or drinking people. Or police officers. Or ANC NEC members. Or cyclists.
Equal rights means nothing if it doesn’t extend to everyone who does not violate the same rights of others.
[Image: SG ZA, https://commons.wikimedia.org/w/index.php?curid=85307066]
The views of the writer are not necessarily the views of the Daily Friend or the IRR
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