By Jen Thorpe
LAST month in Parliament, the decriminalisation of sex work was discussed. The meeting arose around resolutions made at the 2015 Women’s Parliament that the law be reviewed after sex workers raised a number of challenges they have to deal with in the forum. The Commission for Gender Equality, the Sex Workers Education and Advocacy Taskforce (Sweat), the South African Law Reform Commission, and Parliament’s legal office made presentations on the matter.
As of 2016 all aspects of sex work are illegal in South Africa. The thing about the law is that it very rarely stops anyone from having sex.
It didn’t stop same sex couples before the law was changed (after which I believe the lawmakers assumed that married people don’t have sex and so the safest thing to do was to promote civil unions to stop all that “gay sex” that the African Christian Democratic Party keeps tweeting about), it didn’t stop interracial couples during apartheid, it didn’t stop consenting teenagers and it’s not going to stop people who want to sell sex, or those who want to pay for sex.
People often have very strong beliefs about sex work, in the same way that they have strong beliefs about the issues I’ve mentioned above. This may be because of long-standing religious or cultural opinions on the matter, or perhaps a conservative discomfort with issues of sex altogether.
Because of these very strong beliefs, it can be difficult for some to consider what it might mean to decriminalise sex work in South Africa. I have heard a lot of arguments against decriminalisation, many of which rely on a confusion of terms, or the raising of straw men or slippery slope arguments. They say if you remove all laws around sex work you’ll increase the number of sex workers, promote child and adult trafficking and promote the physical and economic exploitation of women in a dangerous environment.
But wait a minute, we already have laws to prevent those things. The law has already got it! It already says that the objectification of women is illegal in terms of the Constitution (and, as a side note, nobody seems to be as uncomfortable with the economic exploitation of male miners who choose to work in mines where the lowest paid workers do the hardest and most dangerous jobs). It already states that the trafficking of persons for any reason is illegal, so any type of situation where a person is sold against their will for sex is already illegal. It is also more likely that a sex worker would report seeing this if they didn’t feel that they might be arrested for reporting.
It also prevents child sexual exploitation (see the Children’s Act and the Sexual Offences Act). It also provides for the prevention of rape or sexual assault, so these criminal offences are already covered.
Unfortunately, so is the sale of sex, even when this is between willing and consenting adults. The fact that it is illegal hasn’t stopped people doing it, it has just made it more dangerous for sex workers to work.
It makes it more difficult for them to rent safe spaces to work from, more likely that police will arrest them and remove their condoms, more likely that the clients will want to go to a location far away from safety, more difficult for them to access sexual and reproductive health services, more likely that police might abuse and rape them, and more likely that they are murdered.
It is the duty of South African law to promote the values of the Constitution, hence moral issues with the sale of sex should be superseded by this duty.
In general, there are four models relating to sex work which are: full criminalisation (buyers, sellers, and people living off the proceeds of sex work are illegal), partial criminalisation (most often the buyer is criminalised), legalisation (regulations around sex work to allow it to occur in certain situations), and decriminalisation (the removal of all laws or regulations preventing or restricting sex work).
If you follow that link you’ll see that the full decriminalisation of sex work is what is necessary to ensure that sex workers are able to practice their work safely, are able to approach health care workers for information about their sexual and reproductive health without (or with increasingly less) stigma, are able to access and carry around condoms to protect themselves and their clients from the spread of sexually transmitted infections, can report harassment and abuse to the police, including any abuse they incur from the police.
This is no longer an argument about morals. This is an argument about rights and dignity. Sex workers – the women, men, and trans people who choose to practice this profession – have the same legal right to dignity that we all do. We should support their call to protect this.
Jen Thorpe is a feminist writer and researcher. Her latest book, The Peculiars, is published by Penguin
Confidente. Lifting the Lid. Copyright © 2015