Sex work: What are our options?
In 1999, the South African Law Reform Commission began evaluating possible alternatives to the country’s criminalisation of the voluntary sale and purchase of sex, including decriminalisation. The commission finally released its report in May, recommending the continued criminalisation of sex work coupled with diversion programmes, or projects that help people leave sex work if they chose. The commission favoured partial criminalisation as its second choice.
“So rather than sex workers getting criminal records, the report recommends that they be put on diversion programmes and trained to look at alternative skills to hopefully encourage them not to be involved in sex work,” Deputy Minister of Justice and Constitutional Development John Jefferies told Bhekisisa in July 2016 ahead of the report’s release.
He indicated then that activists were unlikely to celebrate what would eventually become the recommendations released earlier this year. Speaking at the time, Sex Workers Education & Advocacy Taskforce (Sweat) advocacy manager Ishtar Lakhani said the decision to back the continued criminalisation of sex work threatened some of the world’s most progressive efforts at HIV prefound vention taking root in South Africa.
“It’s astounding that the law commission can recommend this. There are a number of human rights organisations, networks and even the South African National Aids Council that have made the case for decriminalisation based on evidence that it is the best method to decrease HIV infections,” Lakhani argued.
Confused? We explain how the world legislates sex work and the options that SA could consider:
Full criminalisation
Examples: South Africa, The United States
Both the buyers and sellers of sex could face criminal prosecution. In South Africa, sex work is criminalised by some Acts as well as local by-laws.
Partial criminalisation
Example: Sweden
Only the buyers of sex are criminalised.
Decriminalisation
Example: New Zealand
Neither buyers or sellers of sex face censure under the law. Under this model, workers can legally work as contractors or employees and employers would have to comply with employment and occupational health and safety legislation. Workers would also be able to unionise.
Legalisation
Examples: Mali, Senegal, the Netherlands
The buying and selling of sex are legal in certain areas and subject to regulation. Legalisation is not the same thing as decriminalisation, argues Sweat. It points out that under the legalisation model, the state becomes the main regulator of the sex work industry and it – not the workers – decides the conditions under which sex work takes place. In countries where sex work is legalised but not decriminalised, some types of consensual sexual activity – such as that that occurs outside of demarcated areas – between adult sex workers and clients could still be illegal. – Laura López González