How South Africa Could Become the First African Country to Decriminalize Sex Work

This article was originally published by The Conversation.

South Africa may become the first African country to decriminalize sex work. If it does, it will be one of a handful of countries that have fully decriminalized sex work (including New Zealand and New South Wales in Australia), and the first African country to do so. Currently only Senegal makes some provision for legal sex work and subjects it to regulation.

The issue of decriminalization has become hotly contested, with lobby groups on all sides pressing government for action. While moral conservatives call for the status quo to remain, others describe "prostitution" as non-consensual and advocate for partial decriminalization and exit strategies for women. Lined up against them are calls for full decriminalization based on respect for sex worker rights and public health grounds. The balance at present seems to be weighted towards decriminalization, but major differences remain that reflect wider debates within the global feminist movement on sex work and decriminalization.

Under South Africa's successive colonial and apartheid regimes, sex work was largely tolerated. It was regulated only for its "public nuisance" aspects. Stricter legal controls were enacted for purposes of public health (fear of contagion) or to impose racial boundaries on sex and sexuality.

It is little surprise to learn that Apartheid's Sexual Offences Act of 1957 (the successor to the infamous Immorality Act) not only prohibited sex between all races, but also all aspects of sex work and the creation and management of brothels.

On democracy in 1994, sex work was completely criminalized, with some uncertainty about the status of the client. This was clarified in 2007 when clients were explicitly criminalized by an amendment to the Sexual Offences Act. Many find it troubling that in a democracy committed to gender equality and women's rights, sex workers remain criminalized and generally unable to exercise their constitutional rights.

Legal reviews

Twenty years ago the future seemed different. In the wake of the Fourth World Conference on Women in Beijing in 1994, South Africa's Department of Justice agreed to review sexual offences laws. This was with a view to decriminalizing sex work so as to address the vulnerability and rights violations experienced by sex workers. This was referred to the South African Law Reform Commission, where it was overtaken by other projects addressing sexual violence.

The commission concluded its investigation with the submission of a report to the Department of Justice in 2014. This report has not yet been made public. There is, however, some speculation that the commission's depiction of "prostitution" in its annual report suggests a view of sex work that supports some form of criminalization.

The department's implicit acceptance in the mid-1990s that the criminalization of sex work violates women's rights has been taken up by gender rights and sex worker organisations who have consistently argued for legal reform. At the heart of this argument is the idea that women choose to engage in the work of sex work to make a living. The criminalization of this work renders them vulnerable to exploitation and abuse, and to HIV infection. It also denies them access to much-needed services.

Sex work without interference

Decriminalization would help reduce these multiple rights violations. It would enhance the ability of sex workers to work without interference. It will make it easier for them to seek services and redress. This view is advocated by organizations such as the Sex Workers Education and Advocacy Taskforce and Sonke Gender Justice, as well as the Commission for Gender Equality. Even the African National Congress Women's League has nailed its colours to this mast.

Opposing these views are radical feminist claims that "prostitution" is never a choice, but rather an instance of exploitation of women. Women's lack of agency in engaging in sex work should be recognized. Proponents of this view argue that women should be assisted to exit sex work.

This has resulted in the so-called Swedish model, which seeks to eliminate demand for sex work by criminalizing clients, but not sex workers. Prominent among South African advocates of this position is the lobby group, Embrace Dignity.

Call on parliament to act

Recent events have generated new possibilities of law reform on this contested issue. With no movement on the Law Reform Commission Report, Embrace Dignity turned to parliament to present a petition to its select committee on petitions. At a meeting on March 2, Embrace Dignity called for an "end [to] all forms of oppression against women, prostitutes and sex-trafficking". It asked that a multi-party committee examine the legal options for sex work, with the explicit purpose of eliminating "the oppression of prostitution", addressing demand and implementing exit programmes.

This call was partly supported by the Commission for Gender Equality, which agreed with an investigation into forced prostitution and sex trafficking, but argued that the Law Reform Commission has already explored the legal options for sex work and called for its report to be released publicly.

In contrast to Embrace Dignity, the Commission for Gender Equality explicitly calls for the decriminalization of adult sex work as "the only viable option to promote and protect the human rights of sex workers."

Human rights for all

At about the same time as these opposing views on law reform squared up in South Africa's parliament, further support for decriminalization emerged with the release of another long-awaited document, the National Sex Worker Sector Plan of the South African National AIDS Council.

The plan was introduced by Deputy President Cyril Ramophosa in March, with a clear statement of the humanity and inalienable rights of people who engage in sex work.

Citing research that found "HIV prevalence rates three to four times higher among female sex workers than in women in the general population of their age group," he pledged an end to discrimination and violence against sex workers. He called for "sound policies and…progressive laws that promote the human rights of all." The plan itself identifies the negative effects of criminalization and places law reform squarely on the political agenda.

If history is to be our guide, then public health arguments are powerful motivators for reform. Many hope that the combination of public health and human rights in Ramaphosa's address will underpin progressive law reform in this area to accelerate the decriminalization of sex work.

Cathi Albertyn is Professor of Law at the University of Witwatersrand, Johannesburg, South Africa.