The case for decriminalising sex work

Decriminalising sex work has been a debate since shortly after apartheid. A new Human Rights Watch report mentions the 2009 SA Law Reform Commission discussion paper on “adult prostitution”. The 70-page report, ‘Why Sex Work Should be Decriminalised in South Africa’, released on 7 August 2019, factors in the link between the criminalisation of sex work and poverty, lack of access to proper healthcare services and violence against sex workers by clients, police and others who take advantage of their vulnerability. 

The report is based on research conducted between May and June 2018, with 46 sex workers from Gauteng, Western Cape and Limpopo interviewed. The report focused on cisgender females as, according to a 2013 study by the Sex Worker Education and Advocacy Taskforce (SWEAT), 90% of sex workers are female. 

“Given that sex workers in South Africa are overwhelmingly female, and also given our research team’s focus on women’s rights and violence against women, we were specifically interested in the experiences of this subsection of the sex worker population,” HRW stated in the report.

The research concluded that sex workers in South Africa are mostly “poor, black and female” and sell sex to support their families. The fact that sex work is criminalised in South Africa makes this work difficult and dangerous.

The South African Police Services (SAPS) play a leading role in the difficulties sex workers experience. Participants in the report call SAPS “frustrating, useless and frightening”, as most of them had been arrested and detained by police more than once. 

“Sex workers in South Africa face arrest, detention, harassment, and abuse from police, which also deters them from reporting rape or violent attacks against them,” said Liesl Gerntholtz, acting deputy executive director for the programme at HRW. 

Loitering, public drunkenness, and public urination are the offences that SAPS uses to detain sex workers. If a sex worker is found with condoms in his/her possession, SAPS uses this to arrest and detain the sex worker.  

The women in the report have accused SAPS of humiliating and harassing them while they were detained. 

“Police officers took photographs of her breasts, she guessed, to shore up indecency charges. Sex workers have been made to feel embarrassment together with confusion and anger at the arbitrariness of arrests,” the HRW report reads. 

Part of HRW’s recommendation to SAPS is that they ensure sex workers can access medication, especially those who are HIV positive, as HRW found some detained sex workers were denied their ARVs and pre-exposure prophylaxis (PREP), causing them to get sick. 

To be released from detention, payment is often demanded from the sex worker.

“They took me to their captain so he could decide if I was dressed well or [if] I should go to the cells. He told me to pay R50 and then go home,” a sex worker said in the report. 

HRW states that they sent a formal letter to SAPS requesting information on arrest numbers and standard operating procedures but received no reply. 

National police spokesperson Brigadier Vishnu Naidoo told Daily Maverick that this “alleged behaviour” by police will not be tolerated as the police code of conduct states that members of SAPS “uphold and protect the fundamental rights of every person”. 

“We would like to encourage any person, including the so-called sex workers suffering abuse at the hands of the police to report to one or more of the oversight bodies of the South African Police Service, including the Independent Police Investigative Directorate, should their complaints to higher ranks of the police appear to fall on deaf ears,” Naidoo told Daily Maverick. 

Sex work was criminalised by the Sexual Offences Act of 1957 (the Sexual Offences Act). In 2007, the Sexual Offences Amendment Act was passed which criminalised buying sex. The amendment also criminalised all those “involved in the prostitution of children (persons below the age of 18)”.

HRW is appealing to the Department of Justice and Correctional Services to change the law in the current act and decriminalise sex work. 

Nosipho Vidima, human rights officer at SWEAT, said the justice department needs to act now and decriminalise sex work:

“The South African government has missed opportunities in the past to change the law.”

The following recommendations have been made to the justice department:

• Undertake an extensive consultation period with sex workers across South Africa to hear their grievances and needs with respect to legislation related to sex work in the country.

• Introduce a new law to Parliament that removes criminal and administrative sanctions against consensual adult sex work and related offences, such as solicitation, and current prohibited practices such as “living off the earnings” of prostitution or brothel-keeping.

• Recommend municipal governments reform or repeal overly broad by-laws prohibiting vague offences such as loitering and being a “public nuisance” so they can no longer be used to target vulnerable groups, including sex workers.

The Department of Justice has stated that it can only comment on the report on Monday 11 August.

Most of the sex workers in the study have stated that the best way of moving forward is to decriminalise sex work as other alternative employment opportunities are scarce. Vidima agrees, saying this could ensure that sex workers are no longer exploited by the police or anyone else.

“South African sex workers deserve to live in dignity and provide for their families without fear and shame. Decriminalising sex work is a clear way forward.” DM