Criminalising sex work wholly unconstitutional
Law must be made to be consistent from a human rights perspective
EVERY year on March 21, Human Rights Day, which is both a celebration of the rights of all citizens and a solemn remembrance of the suffering and sacrifice necessary to secure them, is marked. These hard-fought rights are enshrined in the Bill of Rights which is the cornerstone of our democracy. Unfortunately, many South Africans have to witness on a regular basis how their rights are being violated. One such group is sex workers.
There are between 130 000 and 180 000 sex workers in South Africa of whom 90% are female and 10% male or transgender. All aspects of sex work are illegal in our country.
The basis for the criminalisation of sex work has been seen as a social ill that needs to be eradicated. But despite prosecution and penalties, sex work continues. Criminalising sex work has proved ineffective, maintaining high levels of violence, exploitation and abuse, and leads to the spread of illness.
Research shows that the HIV/Aids prevalence among female sex workers who work along the N3 highway with long distance truck drivers is as high as 88.4%, and among female sex workers in Cape Town, Durban and Joburg between 40-70%. Just over a third of HIV/Aids infections among female sex workers and their clients could be averted by decriminalisation within a decade.
An outdated criminal legal framework regarding sex work like ours in South Africa, drives sex workers underground and away from services, increases stigma, discrimination and social exclusion, creates obstacles to accessing health and social programmes, and reduces sex workers’ power, rendering them vulnerable to human rights violence and corruption.
Decriminalising sex work is the caring and responsible choice because it reflects respect for human rights and personal dignity.
Adults enter into sex work as their main livelihood or temporarily for survival or short-term revenue. It reduces police abuse and violence.
Where sex work is criminalised, police wield power over sex workers in the form of threats of arrest and public humiliation. Many police officers believe the myth that it is “impossible” for sex workers to be raped, or believe that sex workers “deserve” to be abused. The police therefore seldom want to open a case, even if a sex worker lays a complaint about harassment or abuse.
Furthermore, arresting sex workers wastes valuable police resources. Decriminalising sex work also increases sex workers’ access to justice and promotes safe working conditions. We’ve heard of instances where some police officers force sex workers into sex or paying bribes.
To avoid the police, sex workers may work in out-of-the-way places where they are easily targeted. This also makes it easy for clients to use the threat of force to demand sex without a condom, increasing HIV/Aids risk.
In addition, decriminalisation increases access to health and social services, challenges, among others, stigma and discrimination, state control over bodies and sexuality, the consequences of having a criminal record, and also facilitates effective responses to trafficking.
Where sex work is recognised as ‘work’, workers enjoy the full protection of labour and occupational health laws, have access to the necessary police services, could visit clinics without fear of harassment and could work in any location.
In 2003, New Zealand became the first country in the world to decriminalise sex work. In a review five years after the implementation of the new legislation, sex workers reported that their working conditions and well-being had improved, they felt safer, and they were more likely to report abuse to the police.
Furthermore, researchers found that sex workers were generally practising safer sex, there was no increase in the number of sex workers in the industry, and many of the social evils predicted by some who opposed decriminalisation have not occurred.
It is important to remember that sex work is not the same as human trafficking or child prostitution. Human trafficking relates to the movement of people, under coercion or false pretences, for the purposes of exploitation. Sex work is about the choice to sell sexual services. It is a job or livelihood strategy.
The current legal system criminalising sex work in its entirety is impractical and ineffective.
The law needs to be reformed to make it consistent with the constitutional obligations from a human rights perspective.
After all, we have an inclusive and progressive constitution.
Although the stigmatisation of sex workers won’t change overnight, changing the law would be a huge symbolic act of inclusion and the recognition of the rights of sex workers who are among the most oppressed, exploited and marginalised people in our society. And this will also make South Africa the first African country to decriminalise sex work.
THE LAW NEEDS TO BE REFORMED TO MAKE IT CONSISTENT WITH THE CONSTITUTIONAL OBLIGATIONS FROM A HUMAN RIGHTS POINT