Sex work and the law: Should SA decriminalise sex work?

Sex work and the law: Should SA decriminalise sex work?

Text and images by Muluti Phiri and Erika Massoud*

Would decriminalisation of sex work in South Africa enhance human rights for sex workers? This continues to be a debate between proponents and opponents of the subject matter in South Africa. To help tackle this contentious issue a public debate was jointly hosted by the South African National AIDS Council (SANAC), and Mail & Guardian’s Bhekisisa Centre for Health Journalism and Critical Thinking Forum, in Johannesburg, on 26^th July 2017.

Much scholarly work has demonstrated that criminalisation, rather than putting an end to sex work, merely drives the trade underground, and further exacerbates stigmatisation and human rights’ abuses against sex workers. During the debate, which centred on whether the country should decriminalise sex work (from a public health perspective) stakeholders took turns arguing the issue with varying sentiments from advocates for and those against the decriminalisation of sex work.

The terminology used by each panellist to describe the issue at hand was linked to their political opinion. Whereas some preferred the term ‘sex work’ to emphasise the message that sex work is a form of work, others used ‘prostitution’, reflecting a debate centered on morality and the exploitation of women in the industry. The use of the term ‘prostitution’, however, was widely criticised by pro-decriminalisation activists who challenged the perception of sex workers as victims who need to be ‘rescued’ from the industry. Additionally, on the side of the debate supporting decriminalisation, Marlise Richter (head of Sonke Gender Justice’s policy, development and advocacy unit) and Nosipho Vidima (human rights and lobbying officer at the Sex Worker Education and Advocacy Taskforce – SWEAT) argued that decriminalisation would regulate the work of sex workers through labour and occupational safety laws. Sex workers would thus be able to denounce abuse and bring to court injustices faced at work, rather than fearing criminalisation or deportation (in the case of undocumented migrant sex workers) when approaching the police.

Spurred by a testimony from Grizelda Grootboom, who identified as a survivor, having been lured into sex work at the age of 12, the stakeholders supporting criminalisation referred to sex work as a form of slavery. Grootboom described the trauma she suffered for 26 years as a sex worker and challenged sex work advocates to stop “sugar coating” sex work with notions of women’s rights and freedom of choice. According to her, this does not address the trauma and exploitation that sex workers face on a daily basis. Her views were supported by other pro-criminalisation panellists, Madri Bruwer and Major Margaret Stafford. Particularly, the latter panellist, who is the national coordinator for The Salvation Army’s Southern Africa anti-human trafficking desk, argued that sex work was only about money. She pointed out that there were many other opportunities available for sex workers to earn a decent living rather than selling their bodies. The discussion became heated as supporters of decriminalisation felt that no one had the right to prescribe morals to sex workers on how to earn an income and emphasised sex workers’ right to choose this work as their source of income.

As was pointed out by pro-decriminalisation activists during the debate, many panellists who supported criminalisation conflated sex work with sex trafficking. Although the Deputy Minister of the Department of Justice and Constitutional Development (DoJ & CD), Hon. John Jeffery, adopted a formally neutral position, he also advanced government concerns that should sex work be decriminalised, it may increase human trafficking. He argued that at present, the police force did not have the capacity to handle challenges which may come with passing this law. However, as Richter pointed out, it is important to distinguish between sex work and trafficking, as the latter involves coercion and is for purposes of exploitation, whereas the agency of women entering the sex work industry must be recognised. Additionally, she remarked that sex work is not about selling one’s body, as those pro-criminalisation portray it as, but rather selling a service.

Despite opposing views on the issue, it was highlighted that SANAC, along with many international organisations, such as the World Health Organization (WHO), have advocated for decriminalisation through an evidence-based approach. Particularly in terms of access to health, research has found that decriminalisation has proven to significantly decrease HIV and STI infections. Contradicting this internationally supported evidence and calls from civil society groups in South Africa advocating for decriminalisation, the South African Law Reform Commission (SALRC) released a report in May this year recommending either full or partial criminalisation of sex work. However, the Deputy Minister of DoJ & CD noted that the government was not bound to accept the report’s recommendations on the issue. He also concluded the debate by stating that decriminalisation is one of many options, which can be considered by parliament, and which still needed serious deliberation from all stakeholders. This response was applauded by pro-decriminalisation attendees in the room who saw his statement as a glimmer of hope that (despite the report) the government would consider the option of decriminalising sex work.

At the same time, however, the space in which the dialogue was held was questioned by one of the attendees, who stated that if it had been held in Soweto, “the room would be on fire”. This comment spoke to the uneasiness in the room regarding the privileged space the panellists and attendees occupied; a luxurious hotel dining room in an upper-class neighbourhood. The accessibility of the event, in terms of not just the space, but also the language used (English), and its structure could also be put into question. In addition, strong sentiments were raised by Dr. Tlaleng Mofokeng (deputy chairperson of the Sexual Health & Reproductive Justice Coalition – SRJC), who argued that black sex workers were barely represented on the panel. She observed that the panel of six speakers consisted of only two black women (one for decriminalisation and one against), hence not adequately representing the voices of black sex workers. While emotions were high, from both proponents and opponents of decriminalisation, the debate yielded many suggestions on how best to approach the issue of sex work.

Overall, in our opinion, it is neither the beginning nor the end of such dialogues that can bring about important policy reforms in the country. However, future dialogues need to be accessible to and inclusive of those concerned.

*Phiri is a Masters student under the Migration and Displacement programme at the African Centre for Migration & Society (ACMS), while Massoud is currently completing a European Master in Migration and Intercultural Relations.