SEX SELLS OR SEX CELLS?
LINDIWE SISULU NTOMBIZODWA MAKHOBA SELLO HATANG
IT’S A CRIME
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):
“ 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
NO, IT’S NOT
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.”
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