The real cost of criminalising sex work

In a 2017 report, the South African Law Reform Commission declared that decriminalising sex work in South Africa ‘could create an extremely dangerous cultural shift’. ‘New Frame’ looks at the cost of the status quo and asks sex workers what they want.

“Let me tell you something, as sex workers we are raped daily by clients,” said Ziyanda* who has been a sex worker in and around Johannesburg for the past 20 years. “Clients know that sex work is illegal in South Africa and they take advantage of that.”

Ziyanda said government’s failure to decriminalise sex work has led to unbearable and sometimes unimaginable consequences. Last year, she said, a client brutally assaulted her and left her collapsed on the ground before security guards assisted her. 

Speaking to New Frame on the pavement opposite Esselen Clinic in Hillbrow, Coco*, who has been a sex worker for more than 10 years, echoed Ziyanda. Esselen is the only clinic at which sex workers can access health services without being interrogated and discriminated against because of their work.

Related article:

“Clients take advantage of us. Sometimes they take you and leave you naked in the middle of nowhere. It is even worse when you are a transgendered sex worker. Not only have you been judged, discriminated against…” said Coco, breathless and emotionally strangled of words to describe the extent of the abuse and discrimination to which she is subjected as a transgendered person.

She took a deep breath and continued. “It’s like you are not a human being. We experience more challenges than an average gay person in townships.”

Ziyanda and Coco said the police target areas in which they know sex workers ply their trade. “They will come just to get money in exchange for not arresting us,” said Coco. “Police are also our clients … Sometimes they come to us and end up getting our services for free because they threaten to arrest us and say, ‘Remember, what you are doing is illegal.’”

Ziyanda agreed. “As long as they find us with condoms in the streets, the police will force us to eat them. When it pleases them [the police], they lock you up in the back of the van and beat us with a water hose through the van’s battlers [grill].”

Reform attempts

The legal system in South Africa has criminalised sex workers for more than a century, but the law only changed to criminalise the buyer in 2007. These laws are set out in the Sexual Offences Act 23 of 1957 and the Criminal Law Amendment Act of 2007.

In June 2015, the Department of Justice and Correctional Services received a report on a review of the legislative framework from the South African Law Reform Commission. It aimed to “identify alternative policy and legislative response that might regulate, prevent, deter or reduce prostitution”. 

Nearly two years later, in May 2017, the department released the long-awaited controversial report. It said that exploitation, “particularly of women in prostitution, seems inherent in prostitution and depends on the external factors of gender violence, inequality and poverty and is not caused by the legislative framework in which it finds itself”. 

The reasons underpinning the report were that sex work was “inherently exploitative” and driven by poverty, inequality and unemployment. It said further that “changing the legislative framework could create an extremely dangerous cultural shift juxtaposed against the high numbers of sexual crimes already committed against women”.

To decriminalise or not to decriminalise?

As a result, the commission recommended two possibilities: retaining criminalisation of sex work or partial decriminalisation, which means only the buyer of sex is committing a criminal act.

Lobby group Sex Workers Education and Advocacy Taskforce (Sweat) and Sisonke, an organisation of sex workers that fights for the rights of sex workers, have rejected the recommendations in the law reform commission’s report in their entirety.

Sisonke Gauteng media liaison Katlego Rasebitse said: “We push for total decriminalisation of sex work.” This is a view shared by Ziyanda and Coco. They said decriminalisation would allow them to work and give them protection.

Sex work abolitionists

Luca Stevenson, the coordinator of the International Committee on the Rights of Sex Workers in Europe, argues that support for those who oppose total decriminalisation of sex work has increased exponentially. The abolitionist groups claim that the extension of human rights to sex workers “exacerbates gender inequality and leads to trafficking”.

These abolitionists groups often support the “Swedish model”, which criminalises the clients of sex workers but not the sale of sex itself. One of these abolitionist groups is Embrace Dignity, an organisation that “protects those in prostitution and provides support for exit from prostitution”.

Former deputy minister of defence and health Nozizwe Madlala-Routledge is one of the founders of Embrace Dignity.

Madlala-Routledge told New Frame that her organisation seeks to decriminalise those selling sex and give them an opportunity to exit the industry. The buyers must be criminalised because “those are the real criminals … They are abusing the vulnerability of these women,” she said. “Men are buying domination. A lot of them have partners, some are married. They can’t ask their partners to do what they ask those ladies to do.”

Embrace Dignity is advocating for the law to “recognise prostitution as an extreme form of gender-based violence”.

The power that Madlala-Routledge’s organisation has in terms of pushing partial decriminalisation of sex work should not be disregarded. They have lobbied President Cyril Ramaphosa, urging him not to fully decriminalise sex work, and approached authoritative international bodies such as the United Nations Human Rights Council, saying sex work leads to other kinds of gender-based violence. The law reform commission’s report reflects Embrace Dignity’s position.

Koketso Moeti, activist and director of Johannesburg-based non-governmental organisation stenuously disagrees with Madlala-Routledge. “I think it is very mischievous to conflate different issues. So often sex work gets conflated with sex trafficking. Trafficking has its own clear definition, sexual misconduct or abuse have very particular meanings. And so, to conflate all of that is very, very dangerous and is quite harmful.”

Moeti added: “There is a lot of research that is available, that raises questions about partial decriminalisation that [shows] it is more harmful to those who are sex workers, because if you criminalise those who are buying, where are you supposed to get clients from?”

This is a view affirmed by Ziyanda. “We don’t want [partial decriminalisation]. How am I to do business if you criminalise the client?”

Madlala-Routledge told New Frame that “In the Constitution, there’s nowhere it says men have the right to buy human bodies. As a feminist, I would not go to protect a right that benefits men and disadvantages women.”

She added that she does not recognise the selling of sex as work. “All we are saying is that it can’t be recognised as work because it’s harmful. It causes untold trauma, we deal with this trauma every day. The women coming out of this industry, they say it traumatises them. They have to worry about their safety every day.”

‘Moral panic’

“Who determines which work one can do with their own body? It is bizarre, it speaks to moral panic. People fear the idea that, in a way, the means of production within that space is being owned by those whose bodies are the ones that are carrying out the work,” Moeti said.

“In South Africa, a lot of the conversations about sex work are moralised … The reality is that, as a country, we have an obligation to keep people safe. It doesn’t matter who you are, [whether you are] a mineworker or a sex worker, there is an obligation [to be protected by government]. You do not become less human or less deserving of protection because you are a sex worker.”

In March The Sowetan reported that Ramaphosa had told dozens of women and organisations in Oakdene, Johannesburg, where he was signing a gender-based violence declaration, that the government was looking into descriminalising sex work. “We will work with all stakeholders to develop policy around the decriminalisation of sex work,” Ramaphosa reportedly said. The president did not explain if it would be full or partial decriminalisation.

“It is completely shocking that every time, particularly when elections are approaching, decriminalisation is thrown around, and there is no sense of urgency, clear timelines for when and what and in the meantime, people are paying the price for that lack of sense of urgency. The slowness is costing lives and causing harm to real people. That should be completely frightening,” said Moeti.

The report has not yet been effected into law. New Frame sent questions to Deputy Minister of Justice John Jeffery to find out how the report is progressing in the system. He had not replied to questions emailed to him a week before publication.

*Names have been changed.

If you want to republish this article please read our guidelines.