Recently the public health community welcomed the news that sex workers are to be provided with a tablet a day to help prevent HIV – called PrEP (pre-exposure prophylaxis).As sex workers and their clients are one of the populations most at risk from HIV this is a huge step forward in halting the spread of the epidemic.
It has also brought sex workers into public view, and undoubtedly triggered a few debates about the law regarding sex work. You may have heard calls for ‘legalisation’ of ‘prostitution’, or arguments against it. But what does this mean? We thought it would be helpful to shed some light on a very misunderstood and heavily censored industry.
Get your terms right
Many people talk about ‘prostitutes’ and ‘prostitution’. These terms are imbued with negative connotations and suggestions of shame and immorality. The correct terms are ‘sex worker’ and ‘sex work’. These are non-judgmental and acknowledge that sex work is work – for some a chosen career, for others a job right now. Sex workers have families to support like anyone else doing a job. Sex work is consensual and not forced. It is not the same as trafficking, though the two are often confused in the media, and it does not involve children.
The United Nations Programme on HIV/AIDS (UNAIDS) defines sex workers as:
“Female, male and transgender adults aged over 18 years who sell consensual sexual services in return for cash or payment in kind, and who may sell sex formally or informally, regularly or occasionally.”
Those who advocate for the legalisation of sex work in South Africa are really calling for ‘decriminalisation’. ‘Legalisation’ is a different process resulting in different outcomes. We’ll come on to that later.
What is the current situation?
At present, sex work is completely illegal in South Africa, on the basis of the Sexual Offences Act (No. 23 of 1957) and the Criminal Law (Sexual Offences and related matters) Amendment Act (No. 32 of 2007). There are also provincial municipal by-laws which contain provisions prohibiting sex work such as ‘importuning any person for the purpose of prostitution’ and ‘soliciting’. It is very difficult to catch a sex worker in the act of transacting sex-for-money, except by entrapment, itself illegal, so police use these by-laws to arrest sex workers for ‘loitering’ and other minor offences.
Yet, there are between 130 000 and 180 000 sex workers in South Africa, 90% female and 10% male or transgender, according to the South African National AIDS Council (2013:) Estimating the Size of the Sex Worker Population in South Africa. That’s a lot of people breaking the law on a daily basis, all in the interests of putting bread on the table. Can you imagine any other job, involving consenting adults doing no harm to anyone else, being treated as a criminal offence? And one which alienates all those workers from access to health services, justice and basic human rights? In our view, that’s the crime!
Decriminalisation vs Legalisation
To the lay person, these words mean the same thing. In law, however, they have very different meanings. There are in fact four legal frameworks into which sex work can and does fit in different countries. Here we explain them and their consequences:
- Full criminalisation
The status quo in South Africa. All aspects of sex work are treated as criminal offences. Sex workers often suffer violence, from both clients and police officers, and have little recourse to justice. They are often reluctant to access health services for fear of discrimination and judgmental treatment. This leads to poor public health outcomes, particularly concerning in a country like SA with high levels of HIV.
All laws criminalising sex work, including outdated by-laws, are removed. Sex work is subject to employment and tax legislation like any other occupation. New Zealand did this in 2003. Sex workers do not suffer stigma and discrimination and public health outcomes are vastly improved.
- Partial criminalisation
Some aspects of sex work are illegal but not others, for example, buying sex is an offence but selling it is not. Sweden follows this model. Many people misguidedly think this solution favours women, but in fact it pushes sex work further underground as male clients fear arrest, and pushes sex workers further out of reach of services such as health care.
Sex work is legal within certain areas and subject to certain conditions. This is the case in Mali, Senegal and the Netherlands and gives rise to ‘red light districts’. There will always be men who wish to avoid these areas and therefore women who operate outside of them and thus illegally. Sex work is still a stigmatised occupation.
We favour decriminalisation because it offers the most rights-based, dignified solution. Sex work is work. And there is evidence to show that public health outcomes, including HIV infection rates, improve dramatically when sex workers are freely able to access health care. In addition to the issues raised above, with legalisation the state is the main regulator of the industry and determines the conditions under which sex work can take place. With decriminalisation, sex workers have the right to decide how they want to work, just like the rest of us.
For more information on how you can add your voice to the decriminalisation lobby, contact the Sex Workers Education and Advocacy Trust (SWEAT) at www.sweat.org.za
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The information on this website is provided to assist the reader with a general understanding of the law. While we believe the information to be factually accurate, and have taken care in our preparation of these pages, these articles cannot and do not take individual circumstances into account and are not a substitute for personal legal advice. If you have a legal matter that concerns you, please consult a qualified attorney. Simon Dippenaar & Associates takes no responsibility for any action you may take as a result of reading the information contained herein (or the consequences thereof), in the absence of professional legal advice.