CityPress - - Front Page - Lakhani is an ad­vo­cacy man­ager at Sex Work­ers Ed­u­ca­tion and Ad­vo­cacy Task­force


Re­cently, the SA Law Re­form Com­mis­sion re­leased its long-awaited an­nounce­ment in favour of pros­ti­tu­tion be­ing kept a crime. It chose wisely, and in line with the ma­jor­ity of fem­i­nists’ sen­ti­ments. Its sec­ond choice is to “par­tially de­crim­i­nalise” it – that would fo­cus pros­e­cu­tion on the men who pay. This “Nordic ap­proach” has worked won­ders in many coun­tries. Its ge­nius is to ex­pose the men on the de­mand side, which dries up the num­ber of sex work­ers on the sup­ply side. In Swe­den, the num­ber of sex work­ers was re­duced by 50% in 10 years. At the cen­tre of the Aids pan­demic, here in South Africa, this has to be the para­mount is­sue. We are not a coun­try where HIV preva­lence is still low. Nor are we a “sec­u­lar” coun­try in ethos; we are gen­er­ally deeply reli­gious along with our love for con­sti­tu­tional democ­racy and hu­man rights.

The ANC Women’s League and the Com­mis­sion for Gen­der Equal­ity will be dis­ap­pointed. Be­cause they have been swept away by gen­der bias into la-la land – en­dors­ing full de­crim­i­nal­i­sa­tion. The statis­tics speak for them­selves: More women than men, by far, are seropos­i­tive; Polyandry is not un­com­mon, this is even a sub­plot in a lo­cal soapie; New vo­cab­u­lary such as “blessees” is dis­guis­ing the shift to self-pimp­ing, en­abled by tech­nol­ogy; Sex work­ers en­joy spe­cial sta­tus (that is, get­ting free home de­liv­ery of test­ing, coun­selling and treat­ment – and now Tru­vada), which gives them a false sense of be­ing “safe”;

De­fault rates of those on treat­ment are av­er­ag­ing 20%, mean­ing that there is still dan­ger out there. So, the com­mis­sion is on the right track – and in line with Health Min­is­ter Aaron Mot­soaledi’s “war on blessers”. This clever lan­guage suits the strong gen­der lobby be­cause of its male-bash­ing tone. But the truth of the mat­ter is that some women are not only in dan­ger, they are also dan­ger­ous. The best way to tackle the dan­ger of women in­fect­ing men is to ap­ply another law that the law re­form com­mis­sion an­nounced over a decade ago. Don’t charge them for pros­ti­tu­tion, but for at­tempted mur­der.

Back in the days when gov­ern­ment was en­dors­ing beet­root and gar­lic, the com­mis­sion also re­jected in­ter­na­tional best prac­tice – in­tro­duc­ing Aids-spe­cific leg­is­la­tion. It said that ex­ist­ing laws were ad­e­quate to pros­e­cute “harm­ful HIV trans­mis­sion”. Specif­i­cally, it pointed to ei­ther at­tempted mur­der, or as­sault with the in­tent to cause grievous bod­ily harm.

This ap­proach was sup­posed to con­join with other preven­tion ef­forts, to re­verse the ris­ing preva­lence rate. Then came a decade of mas­sive in­puts from Pep­far and the Global Fund – re­sources that are now dry­ing up or be­ing soaked up by the high cost of treat­ment.

The state has rarely pros­e­cuted women for harm­ful HIV trans­mis­sion. But a mea­gre case law has evolved. Some cases are cou­pled with rape. When this hap­pens, rape is given pri­or­ity and this has tended to colour the law as “men al­ways in­fect­ing women”. How­ever, if you re­ally take gen­der equal­ity se­ri­ously, then some women can in­fect men too – even in­ten­tion­ally. Their bod­ies, loaded with a lethal virus, can be­come the very weapon that will take out their vic­tim. Not on the spot, like with a gun, or within days, like poi­son. But within years – giv­ing them time to drain away his wealth be­fore he suc­cumbs.

It is time to de-stereo­type this law and to recog­nise the re­cip­ro­cal dan­ger. Par­tial de­crim­i­nal­i­sa­tion can cre­ate the con­di­tions to pros­e­cute the men who pay. Pros­e­cute them. Shame them. Fine them. Im­prison them. This will scare men away from the sex trade.

Syn­er­gis­ing these two ap­proaches is the best way to re­verse the ris­ing preva­lence of HIV. The com­mis­sion got it right on both counts. But it is now up to law en­force­ment to ef­fect a “pin­cer ac­tion”. Like scis­sors, these two blades can cut through the huge threat to South Africa’s pub­lic health.

For trans­ac­tional sex, pros­e­cute the men who pay. For sex work­ers, among whom HIV preva­lence av­er­ages 60%, ask them to prove that they dis­closed their sta­tus to part­ners prior to hav­ing sex. If not, here is what the case law says (in re­sponse to an ap­peal by the de­fen­dant, who had lost his case and was al­ready in prison):

“[16] In our view, the only as­pect of the ap­pel­lant’s per­sonal cir­cum­stances de­serv­ing of con­sid­er­a­tion, is his HIV-pos­i­tive sta­tus … In the present case, the trial court found that the cir­cum­stances of the case ren­dered cus­to­dial sen­tence the only op­tion. I find no fault with that find­ing.” If there was nondis­clo­sure fol­lowed by reck­less be­hav­iour, then book her for at­tempted mur­der. Only this dou­ble whammy will cre­ate the ad­e­quate de­ter­rent that South Africa has been miss­ing.

Stephens is ex­ec­u­tive di­rec­tor of the Des­mond Tutu Cen­tre for Lead­er­ship


As hu­man rights ac­tivists liv­ing in post-apartheid South Africa, we are all too fa­mil­iar with the bleak state of af­fairs we find our­selves in. Where fake news trumps facts (pun in­tended), where ev­i­dence is over­looked, and where our hard­fought-for Con­sti­tu­tion is be­ing bat­tered ev­ery day. It is in this con­text that the SA Law Re­form Com­mis­sion re­leased their de­cid­edly dusty re­port on “Adult Pros­ti­tu­tion”. Sadly, what shines through in this re­port (that took 20 years to write and pub­lish) is the com­mis­sion’s dis­or­gan­i­sa­tion and com­pletely hap­haz­ard ap­proach to law re­form. The ref­er­enc­ing alone could not stand the scru­tiny of a first-year law es­say. Any­one could take a red pen to this re­port with ease, but what I want fo­cus on is its fi­nal rec­om­men­da­tion. Af­ter 20 years, the best rec­om­men­da­tion com­mis­sion could of­fer was that things should stay the same and that sex work should re­main crim­i­nalised. The law that crim­i­nalises sex work is based on a 1957 apartheid-era law, the same one that crim­i­nalised sex across the “colour bar” and the same one that crim­i­nalised same-sex re­la­tion­ships. I am quite cer­tain that we have evolved from this, or maybe we haven’t, if we are to be­lieve the com­mis­sion’s re­port.

Our po­si­tion as hu­man rights ac­tivists is that sex work should be fully de­crim­i­nalised. Our op­po­nents would have you be­lieve that this po­si­tion stems from a hea­then­ish de­sire to cor­rupt, ex­ploit and ex­tort. Sadly, it isn’t nor has it ever been this dra­matic. Our po­si­tion is in­formed by decades of re­search, ev­i­dence and facts. Bor­ing, I know. For ex­am­ple, let’s talk about pub­lic health, as we are cur­rently fac­ing an HIV epi­demic. Our op­po­nents say that the con­tin­ued crim­i­nal­i­sa­tion of sex work will re­duce HIV in­fec­tion in South Africa. When we ask for ev­i­dence … awk­ward si­lence. How­ever, if we look at sup­port for de­crim­i­nal­i­sa­tion from health­care pro­fes­sions, HIV ac­tivists, pub­lic health aca­demics (ba­si­cally, peo­ple who work di­rectly in health­care day in and day out), there is an abun­dance. These are a few or­gan­i­sa­tions that sup­port the full de­crim­i­nal­i­sa­tion of sex work to re­duce HIV trans­mis­sion: the World Health Or­gan­i­sa­tion; SA HIV Clin­i­cians So­ci­ety, UNAids, the Treat­ment Ac­tion Cam­paign, the Net­work­ing HIV/Aids Com­mu­nity of SA, the SA Na­tional Aids Coun­cil (yes, the one chaired by our deputy pres­i­dent)…

There are those that hail the “Swedish Model” – this is a model that crim­i­nalises the buy­ing of sex (by clients and third par­ties), but not sell­ing sex (by sex work­ers) – as the mir­a­cle to end the sex in­dus­try. When asked to pro­vide ev­i­dence of this in the form of ac­tual rig­or­ous, quan­ti­ta­tive and qual­i­ta­tive re­search (rather than the ever pop­u­lar statis­tics pulled from the sky) … awk­ward si­lence again. The Swedish Na­tional Board of Health and Wel­fare is hon­est in its as­sess­ment in that it can’t ac­tu­ally tell whether over­all lev­els of sex work have changed since the in­tro­duc­tion of the law in 1999. In fact, re­search in the Jour­nal of Law and So­ci­ety shows that the Swedish Model has re­sulted in height­ened stigma and in­creased vul­ner­a­bil­ity to vi­o­lence for sex work­ers.

We, like most peo­ple who are fond of hu­man rights, like facts, not fic­tion. Speak­ing of rights, Hu­man Rights Watch, Amnesty In­ter­na­tional and the Com­mis­sion for Gen­der Equal­ity, to name a few, all sup­port de­crim­i­nal­i­sa­tion. Since de­crim­i­nal­i­sa­tion leads to an in­creased ac­cess to rights such as health, jus­tice, equal­ity, and safety, the list of sup­port­ers is mer­ci­fully a long and il­lus­tri­ous one. Is de­crim­i­nal­i­sa­tion go­ing to be our sal­va­tion from our cur­rent state of end­less vi­o­lence? No, but it will move us for­ward to­wards liv­ing in a world free from vi­o­lence and cru­elty.

We must re­mem­ber that this is not the first time demo­cratic South Africa has had to strug­gle in the face of dan­ger­ous moral­is­tic con­jec­ture. South Africa has suc­ceeded in pro­vid­ing ac­cess to safe abor­tions, we have abol­ished cap­i­tal pun­ish­ment and we have recog­nised rights for peo­ple who are les­bian, gay, bi­sex­ual, trans and/or in­ter­sex. And we will con­tinue to be guided by our de­sire to live free from dis­crim­i­na­tion, prej­u­dice and vi­o­lence rather than fall prey to un­sub­stan­ti­ated opin­ions. In our call for the full de­crim­i­nal­i­sa­tion of sex work, we will re­main stead­fast in the facts. We be­lieve that the South African pub­lic, as well as pol­icy mak­ers, will hear past the noisy as­sump­tions of the so-called “moral” for that deaf­en­ing awk­ward si­lence.

In the words of the deeply re­spected leader Arch­bishop Emer­i­tus Des­mond Tutu: “I am deeply, deeply distressed that in the face of the most hor­ren­dous prob­lems – we’ve got poverty, we’ve got con­flict and war, we’ve got HIV/Aids – what do we con­cen­trate on? We con­cen­trate on what you are do­ing in bed.”

TALK TO US Do you think pros­ti­tu­tion should be de­crim­i­nalised? SMS us on 35697 us­ing the key­word SEX and tell us what you think. Please in­clude your name and prov­ince. SMSes cost R1.50

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