Since the birth of South Africa’s democracy, there has been a movement advocating for the decriminalisation or legalisation of sex work. Liberal principles of individual rights, as well as utilitarian considerations, support this idea.
South Africa’s policy towards sex work is a hangover from the Apartheid era, when religious morality was legislated for and the term ‘human rights’ was code for pinko-liberal sedition. The Sexual Offences Act which prohibits it dates back to the Immorality Act of 1957, which ironically imposed highly immoral restrictions on sexual relationships.
This is the act that to this day defines ‘unlawful carnal intercourse’ as ‘carnal intercourse otherwise than between husband and wife’, and to this day outlaws prostitution only for ‘female’ persons.
In the early days of democracy, the ANC chose not to press ahead with decriminalising sex work. In doing so, it sacrificed its human rights credentials on the altar of political expediency.
Legalising prostitution was even more unpopular among its own constituency than it had been with the Christian Afrikaner Nationalist regime that preceded it, because of moral and religious objections, and the belief that it contributed to the spread of HIV/AIDS.
Human rights bodies, gender activists, and sex worker groups never relented on their demands that sex work be decriminalised, however.
In a partial gesture aimed at correcting the perceived unequal treatment of sex workers, the government also criminalised procuring sex in 2007. Ever since, both sex workers and their clients are deemed to be criminals.
Decriminalisation
Lately, the lobbying for legal sex work appeared to be making some impact, with president Cyril Ramaphosa saying: ‘We will work with all stakeholders to develop policy around the decriminalisation of sex work.’
That was more than two years ago, however. There is still no sign of draft legislation to turn this intention into reality.
In May, some 200 sex workers took to the streets of Johannesburg to demand that their voices be heard, and that their vocation should be treated like any other work, instead of being considered a crime.
At a seminar in early June hosted by the Kwazulu-Natal Legislature, a representative of the South African Human Rights Commission, Musa Mgenge, reportedly said that the Law Reform Commission had been reviewing legislation on sex work, which is in conflict with the Constitution, for several years now. He said it is under pressure to make recommendations for changes to the law.
An aside is necessary on terminology. Legalisation and decriminalisation are not the same thing. Legalisation means sex work will no longer be deemed an offence. Decriminalisation, however, means only that criminal sanctions will not be levied. Sex work may still attract fines or require explicit licences.
I advocate full legalisation, not decriminalisation. I fail to see why government would need to licence sex workers. What are they going to do, check that they’re sufficiently competent to deliver an adequate service?
However, because many papers refer to decriminalisation rather than legalisation, I’ll use the two terms rather interchangeably in this column.
Underground
Many of the arguments around the legalisation of sex work focus on utilitarian aspects. If sex workers (not all of whom are straight women) are being victimised, exploited, or abused by either their employers (often called ‘pimps’), or their clients, then legalising sex work would make it possible for them to seek protection from the police or seek redress in the courts, as ordinary citizens can do.
If sex work is not underground, then sex workers could more easily access healthcare, and public health interventions aimed at combating HIV or other sexually transmitted diseases would be more effective.
This is all true, and it gets worse. Sex workers are subject to routine rights violations, violence, rape, discrimination, harassment, and exploitation by the police themselves.
‘The police have made sex workers their ATMs,’ deputy minister of social development, Hendrietta Bogopane-Zulu told the Sunday Times last year.
‘Whenever they feel broke they go arrest sex workers and make them pay the guilty fine, but also when their wives don’t give them sex they just go and want to get sex for free. This can’t continue … we want to trade freely as entrepreneurs,’ Bogopane-Zulu told the paper, describing herself as ‘a chief sex worker’.
The state is also exceptionally hypocritical by criminalising sex work on one hand, while cashing in on value-added tax for online sex work via platforms such as OnlyFans. According to the report, the non-profit organisation Sonke Gender Justice has said that sex workers are ready to pay tax on their income in return for safer working conditions and less gender-based violence.
There’s a pragmatic argument to be made along the same lines as arguments against all prohibitions: they don’t work. Sex work will happen regardless of its legal status. By pushing it underground, it becomes vulnerable to being exploited by criminal gangs.
Human rights
There is a much deeper human rights argument to be made, however.
In a free society, individuals ought to have autonomy over their body. Even when this right is abused and has negative consequences on society (such as refusing vaccines on spurious grounds), the right stands.
If a person has the right to engage in consensual sexual intercourse (which applies to anyone over the age of 16), there ought not be a limit on the terms on which they exercise that right. Whether or not they do so without deriving material benefit, or whether they do seek rewards in return, is no business of the state.
Although the act by its definition of ‘unlawful carnal intercourse’ protects heterosexual marital sex, it arguably condemns relationships in which a woman receives gifts or lodging in exchange for engaging in a sexual relationship. That is, ordinary co-habiting relationships could be interpreted as criminal prostitution. It could even cover one-night stands in which a person buys dinner and drinks for another in return for sexual relations later.
Whether a woman, or indeed a person of any gender, expects reward in return for sexual favours should be entirely irrelevant, if said sexual favours are otherwise legal. There’s nothing immoral about paying for anything, and sex work is not qualitatively different from other personal services like massages or pedicures.
It is also arguable that the prohibition on sex work violates a range of clauses of the Bill of Rights. First, it abridges the right of every person to choose their trade, occupation, or profession freely. It also violates the right to freedom of association, and the freedom to form unions. Because criminalisation stigmatises sex work, it violates the right to have access to health care services, including reproductive health care.
The Constitution also guarantees the right to freedom and security of the person. This right is violated by criminalising sex work, because doing so results in well-documented physical and sexual abuse of sex workers, including by police themselves. Sex workers also have inherent dignity and the right to have their dignity respected and protected. This dignity is violated by criminalisation of their work, because it subjects them to discrimination, abuse and stigma.
Involuntary servitude
It is sometimes argued that sex work often involves abduction, sex slavery, debt slavery, and other forms of involuntary servitude. This is true, but it is not a justification for criminalising sex work in general.
That would be like criminalising sex in the hope of preventing rape. First, the law would be much too broad, criminalising entirely legitimate activity, and second, the law would not achieve its objective. After all, human trafficking and involuntary servitude is rife even under the present prohibition of sex work.
Debt slavery, for example, by which a woman is forced to prostitute herself to repay a trafficker for transporting her from one country to another, can be specifically regulated to be consistent with the Constitutional provision that no one may be subjected to slavery, servitude, or forced labour.
The solution is to act against specific abuses, without outlawing sex work altogether. If sex workers do not need to fear their own arrest, or abuse by the police, they are far more likely to be able to bring charges and seek protection from those who commit wrongs against them.
Some would argue that sex work is inherently immoral, and it is therefore right and proper that it be outlawed. This is a slippery slope to establishing religious law, however. The question is, by whose moral standards is it illegal, and why should those morals take precedence over the morals of anyone else?
Some people see sex as something ordained by God for the purpose of procreation. Some see sex as something deep and meaningful that should be entered into only in committed romantic relationships. Some see sex as casual fun that involves no deeper emotional meaning. If all those things are legal, and they are, then sex work should be legal too.
If you legislate on particular moral grounds that are not universally shared, you’ll soon have laws prohibiting dancing on Sundays again. Sex work involving consenting adults does not violate the rights of anyone, which means there is no compelling reason to outlaw it.
Some argue that nobody should have to perform sexual favours just to earn money. This is mere moralistic idealism, however. People do many jobs that they otherwise wouldn’t do, just to earn money. In a country with extremely high unemployment, it is cruel to prohibit people from caring for themselves and their families by performing sex work.
Going after the ‘johns’
There is a movement, called the ‘Nordic Model’ that seeks to decriminalise sex work, but prosecute clients of sex workers, instead. It has been implemented in several countries and territories worldwide.
This model is supported by some feminist and anti-prostitution groups, but opposed by Amnesty International, UNAIDS, the World Health Organisation, the American Civil Liberties Union, Human Rights Watch, and most sex worker rights groups.
It stands to reason that if selling sexual services is not criminal, then it cannot be wrong to buy such services. In fact, prosecuting ‘johns’ harms sex workers by denying them income opportunities. It weeds out law-abiding citizens from the client pool, which makes it more likely that sex workers end up with violent and abusive clients with no respect for the law.
‘It already happened,’ one Parisian sex worker told OpenDemocracy. ‘I now do for 20 what I would not have even considered doing for 40 just a year ago. I get on [sic] cars I would not have gotten into. There are no clients. So you have to get what you can.’
‘The threat of criminalisation… has already scared away some of my clients: the most respectful ones,’ said another.
Since ‘pimps’ are also prosecuted under Nordic Model laws, it exposes sex workers to the risk of homelessness. Even romantic partners of sex workers can be caught up in the net for being ‘clients’.
Some countries that implemented the Nordic Model in the hope that it would decrease the risk of human trafficking, such as Ireland and Iceland, instead found that the risk was increased.
The Global Network of Sex Work Projects has compiled a comprehensive report challenging the Nordic Model.
New Zealand
In 2003, New Zealand became the first country to fully decriminalise sex work. Chi Adanna Mgbako cites this as a case study in her 2013 paper, The Case for Decriminalisation of Sex Work in South Africa.
The entire paper is worth reading for a far more comprehensive treatment of the subject than I can do here. On New Zealand’s experience, it quotes that country’s Prostitution Law Review Committee, which concluded that decriminalisation ‘had a marked effect in safeguarding the right of sex workers to refuse particular clients and practices, chiefly by empowering sex workers through removing the illegality of their work.’
The paper continues: ‘Studies conducted in New Zealand after decriminalisation concluded that sex workers have better working conditions, receive improved access to health services, take precautions to stop the spread of STIs, and enjoy better relations with police, increased access to justice when they are victims of crime, and increased confidence and well-being. Additionally, there was no evidence that decriminalisation led to an increase in trafficking into prostitution, youth in the sex trade, or the number of sex workers.’
Legalise it
Human Rights Watch compiled a long and detailed paper advocating for the decriminalisation of sex work in South Africa. It is well worth reading. Sonke Gender Justice also has good resources available here, and the Sex Workers Education & Advocacy Task Force, which advocates for sex worker rights, also offers a good deal of support for these most put-upon of people.
It is time for South Africa to look beyond its out-dated moralistic hang-ups about sex at what really matters: sex workers themselves. The law ought to allow everyone to enjoy equal rights under the Constitution, and that includes the right to freely engage in sex work, should someone so choose.
Legalising sex work will make sex workers and their clients safer, will provide income opportunities for the poor and marginalised in society, and will permit the police to spend their time and resources on prosecuting crimes that actually violate people’s rights, instead of shaking down vulnerable people for sex and money.
The views of the writer are not necessarily the views of the Daily Friend or the IRR
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