Sex work in South Africa – An argument for decriminalisation

Published: 11 March, 2009
charlotte sutherland

As the 2010 FIFA World Cup approaches and anticipation increases across the globe, a variety of issues and challenges related to the event have emerged which demand the attention of decision-makers. One such issue is that of sex workers and their rights during the World Cup.

The increase in tourism that the World Cup will bring to South Africa inevitably implies a correlated increased interest in the sex industry. Sex workers across the country have rallied for their work to be decriminalised for a long time; while activists have demanded the protection of sex workers’ rights. Decision-makers have been at a loss about how to handle the sex industry in South Africa and neighbouring countries during and after the World Cup. The rift between the human rights paradigm, the South African Constitution, and Bill of Rights on the one hand, and the conservative religious community’s stance against sex work on the other, is growing. The complexities surrounding this will be compounded as thousands of World Cup supporters plan to descend on South Africa next year.

This month’s newsletter provides a brief overview of the problems associated with the sex trade, and argues that conservative stances toward sex work, as well as the Government’s reluctance to protect the rights of sex workers as citizens of the country, are hindering the development of solutions to the dilemma of women’s rights, poverty and HIV and AIDS.

The sex worker as a vulnerable citizen

Sex workers from 10 African countries met in Hillbrow, Johannesburg, South Africa, early in February to discuss their needs and experiences at the first ever Africa-led sex worker conference . A woman from Uganda commented during the conference that sex workers are “treated like dogs”. Most of the participants were able to relate to her story. They cited experiences of being exploited by police officers, stigmatised and humiliated by the health workers and abused by clients. Despite these common experiences, the fact that their trade is illegal means that they have no access to legal protection against the human rights abuses they endure.

The Sex Worker Education and Advocacy Taskforce (SWEAT) is a non-profit organisation that has been working since 1994 to understand the dynamics of the sex work industry and to advocate for the decriminalisation of sex work, based on concrete research results. SWEAT found that the stigmatisation of sex workers is a significant barrier to their seeking support, and that it in fact facilitates exploitation of sex workers. Due to the fact that the sex trade is not regulated and monitored, sex workers are exploited by both their clients and their employers. Clients often insist on unprotected sex and subject the sex workers to violence, while employers unashamedly take large cuts of the women’s earnings. The fact that many sex workers keep their jobs secret in an effort to avoid stigmatisation means that they are vulnerable to blackmail and other forms of exploitation by the parties they deal with. Sadly, the police force is often one of these parties.

SWEAT recommends that the sex trade be decriminalised as this would enable sex workers to be more open about their work and to seek help and support when needed. It would also be easier to deal with exploitation and violence against sex workers if they enjoy the same protection as other vulnerable workers. It is unfair to subject sex workers to such ghastly working conditions on the grounds that their work is immoral and sinful. The demand for sex work will always exist, and those forced to resort to sex work are punished in the worst way – by having their vulnerability exposed and exploited in ways that other citizens are protected against.

Decriminalisation and legalisation of sex work

Jackie Selebi, the suspended South African National Police Commissioner, suggested recently that sex work and public drinking be legalised for the duration of the FIFA World Cup in the country. Henry Trotter, author of Sugargirls and Seamen, and expert on the sex trade, argues that Selebi and his supporters’ proposal to legalise sex work is not based on the desire to protect sex workers, but to provide legal pleasure to “foreign sex-buying men” – a rationale that “reinforces their subordination to male desire”. Trotter further points out that the proposal neglects to clarify what the impact of such legalisation would be on the sex workers themselves. Legalising sex work for a limited period furthermore is a clear indicator that the interests and protection of sex workers themselves is very low on the government’s priority list, unlike the interests and pleasure of foreigners, who presumably will be allowed to do as they like with these vulnerable women.

A distinction needs to be drawn between ‘decriminalisation’ and ‘legalisation’ of sex work. According to Trotter, legalisation implies government control and regulation, while decriminalisation of sex work implies that sex workers can work without legal interruption. Selebi’s concern is to save police the effort and time of having to arrest masses of sex-buying foreigners, but Shanaaz Parker, researcher on organised crime at the South African Institute for Security Studies (ISS), warned in 2008 that legalisation of sex work (even if only for the World Cup’s duration) will necessarily have to be regulated by police if a dramatic increase in human trafficking is to be avoided. She noted that human trafficking has increased in Germany and the Netherlands after sex work was legalised there. Parker emphasised that new legislation will have to be drawn up very strategically to distinguish the sex trade from human trafficking if sex work is going to be decriminalised or legalised. Sex work can thus not be decriminalised without the constant involvement and protection of police.

From a conservative perspective, most of the religious community in South Africa and elsewhere have managed to sustain the well-known discourse which posits sex work as morally wrong and therefore not to be considered for decriminalisation or legalisation. It seems those who commit such ‘morally wrong’ acts as sex work forfeit the rights guaranteed by the South African Constitution.

South African gender expert Lisa Vetten, currently at the Tshwaranang Legal Advocacy Centre in Johannesburg, recently told IRIN News that “Religious conservatism is a fabulous uniter in South Africa, so you get a broad section of society opposed to decriminalising prostitution on moralistic and feminist grounds. Prostitution is seen as morally wrong and exploitative of the girls involved, who are poor, get paid badly for what they do, and have often been sexually exploited at a young age. It is also predominately black girls who are involved, so to decriminalise it is seen by some as a way to exploit racially.”

Ironically, ‘decriminalisation’ from this conservative viewpoint is believed to imply increased exploitation of girls, when in fact it should imply more protection of their rights as children, women and human beings. This will only be the case, however, if the government is willing to provide its proposed legalisation of the sex trade with the necessary police involvement and law enforcement -something that will both require and enforce a sharp decrease in the stigmatisation of sex workers.

What can be done?

SWEAT argues that criminalising the client, in addition to the criminalised status of the sex worker, is not the solution. In fact, the organisation provides several examples of the ways in which criminalisation of the client will actually worsen the sex worker’s already dire situation. In short, criminalising the client moves sex work to more dangerous geographical areas and reduces the sex worker’s ability to choose between ‘good’ and ‘abusive’ clients, due to the fact that the ‘good guys’ will be scared off by legislation, while the malicious and abusive ones remain as the sex worker’s client base.

Non-governmental organisations (NGOs) have more difficulty reaching sex workers in dangerous areas, which means the sex worker will be deprived of the general assistance that NGOs provide to them. Criminalisation of the client will also increase the trafficking of women as sex slaves because they will be cut off from interaction with society. Trafficked women will almost only see those who obtain their ‘services’ (read: slavery) illegally – people who are least likely to report the fate of trafficked women1.

SWEAT believes that sex work needs to be decriminalised. “You cannot criminalise poverty, and the research carried out in Cape Town shows that most women and men get involved in the sex industry because they can earn between two and four times more money from selling sex than they can from other employment”, Vivienne Lalu, senior researcher at SWEAT, told IRIN News.

“If you want to stop prostitution, you have to deal with issues such as gender equity, appropriate exit programmes, moral stigma and the like, rather than driving it underground through ineffective laws”, she commented. “Instead of acting as a deterrent to involvement in prostitution, criminalising the act has led to high levels of exploitation and abuse of sex workers by police and those who run the brothels they work in”, she said.

In conclusion, the rights and lives of sex workers need to be considered by decision-makers not as manifestations of immorality and carriers of disease, but as equally important and valuable as the rights and lives of other citizens. The broad structural causes of the large number of women in the sex trade, namely poverty and unemployment, need to be seriously addressed by Governments across the globe. The fact that governments are allowing these citizen’s lives to be filled with exploitation and abuse is simply outrageous.

Charlotte Sutherland is the Research Manager: Gender Issues in Africa, at Consultancy Africa Intelligence. The March edition of the Gender Issues in Africa Newsletter is republished here with permission from Consultancy Africa Intelligence (CAI), a South African-based research and strategy firm with a focus on social, health, political, and economic happenings in Africa. For more information see http://www.consultancyafrica.com or http://www.ngopulse.org/press-release/consultancy-africa-intelligence. Alternatively, visit http://www.consultancyafrica.com/promo2 to take advantage of CAI’s free, no obligation, three-month trial to the company’s Standard Report Series.

Link to original at SA NGO Pulse

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