The Commission for Gender Equality (CGE) together with COSATU convened a consultative dialogue on sex work legislative reform. The CGE and COSATU are mindful of the current legislative reform process being driven by the South African Law Reform Commission (SALRC), and sought to engage with stakeholders in the sector to inform the development of their institution’s own policy responses to sex work.
Accordingly, representatives from a range of institutions researching and championing the rights of sex workers and addressing violations of their human rights, such as Sex Worker Education and Advocacy Task Force (SWEAT), and representatives from Sisonke Sex Worker Movement itself, were invited to advise the CGE and COSATU on their responses to proposed legislative reform and arguments in favour of full decriminalization of sex work.
Participants noted firstly with concern the delays in the finalizing of sex work legislative reform, which has been before the SALRC since the release of its issue paper in this regard in 2002, and discussion paper in 2009. The SALRC is in the process of finalizing its report for consideration by the Commission, and thereafter for submission to the Minister of Justice and Constitutional Development for his consideration. Participants expressed concern at the fact that the SALRC is in fact still waiting on the Presidency to appoint new Commissioners to its structure, and therefore is unable to set any timeframes for the above process.
The CGE and COSATU were advised in no uncertain terms that the current regime, namely the full criminalization of sex work, namely criminalizing the buying and selling of sex-work, and all related activities, such as pimping and the running of brothels, has failed society in general, and sex workers in particular. The criminalization of sex work is difficult to implement and enforce, and has not resulted in the reduction of the levels of sex work, or violence against sex workers.
Speakers noted that in contrast, the criminalization of sex work harms sex workers and denies them access to the rights contained in our Constitution. Sex workers are subjected to numerous human rights violations, predominantly harassment and abuse at the hands of police officers, and are not able to access and exercise legal or labour rights, or social protections. As a result, sex workers employed by brothels are subject to numerous unfair and discriminatory practices and abuse, ranging from fining, bonding and coercion, and are denied access to legal remedies to challenge these, or to mobilizing and the forming of unions to support this process.
Participants called for the full decriminalization of sex work, stating that this is the only appropriate legislative response that is based on the human rights of sex workers, and will permit adult sex workers to engage consensually with their adult clients, without fear of police violence. By removing state control and policing of the sex work industry, this then shifts the police’s role to that of preventing harm to sex workers, and investigating and taking action against criminal instances of trafficking, coercion and child sexual abuse, which are fundamentally distinct from sex work. They stated clearly that sex workers are not victims needing rescue, but survivors calling for recognition and protection of their rights.
Persuasive research was presented on the model adopted by New Zealand, the first country to adopt the decriminalization of sex work, with supporting legislation in place to protect the human and labour rights of sex workers. New Zealand put in place a five year review mechanism to assess the impact of this legislation, and findings indicate clearly that decriminalization has not resulted in an increase in sex work, but rather that the attainment of the rights of sex workers has improved, and awareness on occupational and health rights increased.
Dialogue participants called upon the CGE and COSATU to call for the repeal of criminal law prohibiting adult consensual sex, and the promulgation of legislation to promote the rights of sex workers, and support the mobilizing and organizing of sex workers to champion their rights. The CGE in particular was requested to make use of its statutory powers to investigate systematic police violence against sex workers, and the use of state resources to harass and abuse sex workers.
COSATU noted that its National Gender Conference concluded on 29 March 2012 called for the full decriminalization of sex work. Gender structures within COSATU are now campaigning with affiliates and provincial structures to support the policy proposal in this regard to be tabled at COSATU’s 2012 Congress. The CGE confirmed that it would be finalizing its formal position on the decriminalization of sex work, drawing on the inputs from the roundtable and responding to the experience and human rights of sex workers, whereafter it would be engaging with relevant stakeholders to take this forward.
The CGE also noted that it would immediately develop legal opinion on existing legislative provisions in our criminal law in relation to sex work that appear to be in conflict with the Constitution, to take these up with the State. The CGE invited SWEAT to immediately and formally lodge a complaint in relation to police abuse of sex workers, for CGE investigation and action.
[This press release from the Commission for Gender Equality, on the 4th of April 2012. The original title read: 'Consultative dialogue on sex work']