By Ntokozo Yingwana, SWEAT Advocacy Officer
Under the Sexual Offences Act of 1957, amended in 2007 sex work is fully criminalised in South Africa. This means that the sex worker, their client, and anyone who lives off the earnings of a sex worker are considered criminals.
Criminalisation is extremely difficult to enforce (with only 11 clients having been prosecuted for engaging the services of a sex worker since 2007). It has created a harmful environment in which police can and do abuse and harass sex workers with impunity, health care providers stigmatise and discriminate against sex workers, and a range of human rights abuses against sex workers by the general public are legitimised.
Human rights abuses of sex workers in South Africa are alarming and demand immediate attention. Most sex workers are women, and these abuses are crimes of violence against women. The incidence of physical violence, including rape, is higher among sex workers than among the general population.
It is with this disturbing backdrop that SWEAT, the Cape Town-based Sex Workers’ Education and Advocacy Taskforce, welcomes debate on the law regarding sex work in South Africa. Some organisations are proposing Sweden’s partial-criminalisation/partial-decriminalisation as the answer. It may sound fair – criminalising the clients and others, but not criminalising sex workers – however, the evidence shows what logic tells us – that it really is lose-lose law.
The director of the Program on Human Trafficking and Forced Labor at the American University in Washington, Anne Jordan offers a compelling argument against the Swedish model. In an article, The Swedish Law to Criminalize Clients: A failed experiment in social engineering (Issue Paper 4, April 2012), Jordan states that, “[t]he reports produced by the Swedish government and other researchers reveal that the government’s claims of success are not supported by facts. There is no evidence that fewer men are purchasing sex, that fewer women are selling sex or that fewer people are being trafficked or forced into prostitution.”
Jordan goes on to recommend that, “[g]overnments that are proposing to adopt a law like Sweden’s should consider whether they, too, wish to waste scarce resources and political capital on a law that is unsuccessful and also certain to produce harm.”
Since its inception in Sweden in 1999, partial-criminalisation has forced sex workers to move their trade into much more hidden and potentially dangerous locations, and into accepting risky clients who may turn out to be violent, reports Jordan. Rather, she argues, “they should develop real solutions based on evidence and rights instead of ideology and emotions”.
Partial-criminalisation of sex work is based on the discredited belief that by creating laws that criminalise the buyer of sex, there will be a decrease in the market-demand for sex work, which will ultimately result in a decrease (or total eradication) of sex workers. This is a social engineering exercise that echoes the Immorality Act of the apartheid government, which sought to police the private engagements of consenting adults.
SWEAT encourages our government to engage with the evidence, instead of succumbing to discourse, which undermines our hard-fought Constitution. Our government would do well to note that just last month the Canadian Ontario Court of Appeal ruled that partial-criminalisation laws were indeed responsible for the increase in violence against sex workers in their country, and have subsequently called for the reform of these laws.
Laws that criminalise sex work, in whole or part, remove the sex worker’s own agency. Instead they aim to disempower sex workers, and prevent them from exercising their labour and human rights. The mistake made by those advocating for partial-criminalisation is to assume they know what is best for sex workers, even before bothering to consult with them. They refuse to believe that anyone would voluntarily sell sex to make a living, even when the reality we live in points to just that.
Sisonke - the national sex worker movement- has repeatedly called for the full decriminalisation of sex work. “As sex workers we support decriminalisation as the best and only legal option for South Africa because it will recognise our rights to work, it will enable safer working conditions for us and will greatly reduce the police violence,” says Kholi Buthelezi, the National Sisonke Coordinator.
Partial-criminalisation has been incorrectly touted as the solution to human trafficking by some groups, however, since sex workers will still be treated as criminals, even under partial-criminalisation, they will still be unlikely to assist the police in dealing with crime.
By contrast, decriminalisation will bring in stronger laws to protect individuals against coerced sex work, human trafficking and sexual exploitation of minors. The key benefit of decriminalisation is a vast improvement in the relationship between police and sex workers, to the point that sex workers become key information sources in attempts to uncover human trafficking. Currently, sex workers are afraid to do so, because they risk arrest. According to Buthelezi, “People tend to forget that sex workers are also community members and many of us are concerned with crime. If sex work is decriminalised, we would be in a better position to assist the police to combat crime”.
South Africa has many important issues to address. Many require additional police resources. To waste taxpayers money compelling the police to enforce an unjust and unworkable law against sex work is plain outlandish. And to promote a discredited model of law reform is misguided. There is a win-win solution, decriminalisation.
[An edited version of this article appeared on the Cape Times, on Thursday 12 April 2012, under the title: 'Decriminalisation of sex work is only way to ensure win-win outcome'.]