This op-Ed was written by our Founder Nozizwe Madlala-Routledge
There is a fatal flaw in the proposed National Strategic Plan on Gender Based Violence and Femicide released by the government in May 2020. The flaw is the implied recommendation for the decriminalisation of “sex work”, which we prefer to call the system of prostitution as it forms part of systems of oppression, including patriarchy, classism, sexism and racism. As outlined in the statement made by UN Undersecretary and Executive Director of UN Women, Dr Phumzile Mlambo-Ngcuka, “those who buy (sexual) ‘services’ are perpetrators of violence against women, and this is who the law should hold accountable. We agree with UN Women that prostitution is one of the worst forms of men’s violence against women.
We strongly assert that to include the decriminalisation of ‘sex work’ in the call to “revisit and fast track all outstanding laws and bills that relate to GBV and Femicide” is fatally flawed for the following reasons:
- There is no law or Bill on our statutes that deals with the decriminalisation of ‘sex work’. The term ‘sex work’ was invented by the sex industry as a way to try and normalise prostitution. The use of the term is just a slight of hand to opportunistically introduce an idea that has not even been debated in the country.
- The call seems to have been made opportunistically at the end with no discussion, consultation and consensus on this issue in the process of drawing up the strategic plan.
- Referring to the prostitution system as “sex work” is opportunistic and an attempt to normalise an exploitative and coerced transaction, where the buyer is exercising power and money to gain access to another’s body for their own sexual gratification.
- Prostitution is neither sex nor work, but coerced consent and exploitation. While some may argue it is consensual, the fact is that it is coerced by the money and it is therefore not free or mutually fulfilling.
- It does not fit the ILO definition of decent work, as it is exploitative and often violent. The seller has to numb and disassociate themselves to survive the pain and repeated bodily invasion.
- Prostitution is inherently harmful. It cannot be made safe.
What to do about Prostitution
What to do about prostitution is a controversial issue, sometimes referred to as a wedge issue because it divides all parties and sectors. This explains why political parties avoid doing something about it. The lives of arguably the most marginalised members of our society, the ’sex workers’, are daily put at risk at the hands of men who abuse their power to buy their access to women’s bodies, and corrupt law enforcement officers. Fortunately this issue has come to the fore following the Presidential Summit held in November 2018 and the publication of the National Strategic Plan to End Gender Based Violence and Femicide by our government in May 2020.
While we agree that the bought, sold and exploited must be decriminalised and assisted to find alternative forms of employment, we totally disagree with the call to also decriminalise the sex exploitation industry as a whole. Those exploiting the position of vulnerability caused by factors such as poverty, childhood sexual abuse or abandonment or race and gender inequality should remain criminalised. Focusing on ending the demand and supporting exit from prostitution as part of a comprehensive strategy to abolish the oppressive system is the only effective strategy for addressing the violence inherent in the prostitution system.
Prostitution is a complex issue. While some see prostitution as a harmless transaction between consenting adults, others consider It to be inherently harmful and exploitative. Dealing with prostitution is not simply a matter of morality. It is an issue of human rights. Prostitution is one of the oldest forms of oppression, targeting the most marginalised in society.
The debate on prostitution needs to be wide-ranging and informed by considerations of what’s best for our country and in line with our constitutional and international obligations. We need to build national consensus and put aside our personal preferences on the issue, in the same way we have dealt with other controversial social issues, like the choice on termination of pregnancy or smoking in public places. We need to engage, not just those who are directly affected. We need to approach it with cool heads. We need to engage from an informed position and not simply from a knee jerk reaction to unemployment and poverty, or a laissez faire approach of commodification of everything that sells. We need to look at the socio-economic drivers of prostitution as well as the research on the harms of system of prostitution and learn from the experience of countries that have gone before us in dealing with this issue. We must relate this debate to the context of high unemployment, high levels of violence against women and girls, gender inequality and poverty. The debate must involve those with direct experience of the lived reality of the harms of the system of prostitution, whose voices have been missing in the debate so far. We have much to learn from their lived experience of the harms and trauma they have survived in the prostitution system.
Embrace Dignity is fully behind this unprecedented national thrust to eliminate gender based violence and femicide, a societal problem of unimaginable proportions, and a national disaster. We would in fact wish for the President to have declared a state of disaster, considering that the rapes and killing of women in South Africa is one of the highest in the world. Catharine MacKinnon (1993, 1994, 2006) a leading legal scholar, author and campaigner for women’s rights has equated the harm of rape to torture and genocide.
The Declaration makes overarching commitments focusing on the underlying factors that contribute to gender based violence. Commitment 10 states: “A targeted, social behaviour change programme to address patriarchal values and norms and structural drivers of gender-based violence …targeted at all sectors, including individuals, families, communities, civil servants, religious and traditional leaders, the private sector, the media community and others that are strategically placed to influence attitudes, behaviours and practices, supported by an effective, resourced communication strategy” (Declaration of the Presidential Summit Against Gender-Based Violence and Femicide). The South African Law Reform Commission has produced a report of a review of the current laws on adult prostitution and has released a report with two draft bills, which must still be tabled and debated in our parliament.
The SALRC report dismissed total decriminalisation as a policy and legislative framework and said this would be disastrous for our country with our levels of violence against women, high unemployment and poverty. The decriminalisation of “sex work” would be counter-productive as it would lead to the expansion of the exploitative industry, which is already getting out of control.
Prostitution is a lucrative ‘industry’. There are huge profits made by the sex industry. A research report conducted in 2014 estimated the sex markets in the United States to be worth anywhere from $40 million to $290 million (close to R5 billion) in seven cities profiled in the government-sponsored report by the Urban Institute.” As they say, sex sells. A survey by the International Labour Organisation (ILO) indicates that sexual exploitation rakes in $99 Billion globally and accounts for 66% of the human trafficking industry, of which forced labour accounts for 28,7% and Domestic servitude, 5,3%. (Source ILO Human Trafficking Centre). The prostitution system is one of the worst forms of violence, that some women and girls face at the hands of men who buy them for sex and those who take advantage of the position of vulnerability, caused by a toxic combination of systemic oppression and patriarchy. The system of prostitution – sometimes opportunistically referred to as “sex work” – is driven by patriarchy and men’s feelings of entitlement to women’s bodies, and the system in turn perpetuates patriarchy – a vicious cycle.
A comparison of the different legal frameworks
There are three legal approaches to regulating prostitution. Prohibition, Legalisation/Decriminalisation and Abolition. These approaches are completely different and depend on national policy and the expected outcome.
Prohibition refers to the legislative framework where all aspects of the prostitution system are criminalised, including the buying and selling of sex, pimping and brothel keeping. This is the status quo in South Africa and most of the world. As we have seen in our country, prohibition has not successfully curbed prostitution. In fact all indications are that it is growing, especially under our conditions of high unemployment, poverty, patriarchy and gender based violence. Prohibition has not examined the fundamental socio-economic factors that drive prostitution. Instead, it punishes those that are already victimised by poverty, childhood abuse and homelessness, as well as unequal gender relations.
Legalisation/Decriminalisation refers to a spectrum of legal approaches including regulation. The buying and selling or sex are not a crime. Legalisation imposes certain limitations, including the requirement for registration of all those providing sexual ‘services’ and defining ‘red light zones’ – specific areas where prostitution is allowed. Decriminalisation refers to an approach where there are no laws restricting the buying and selling of sex except for regulating its activities .
Abolition recognises prostitution as a system of oppression and puts measures in place for its eradication.
Total decriminalisation has not worked in New Zealand, the only country that has adopted such a legal framework and policy. In New Zealand, brothel-keeping, living off the proceeds of someone else’s prostitution, and street solicitation are legal in New Zealand and have been since the Prostitution Reform Act (PRA) 2003 came into effect. It is important to note that the PRA was passed by 60 votes to 59 with one abstention. No other country has followed the New Zealand experiment, and as Melissa Farley has pointed out, in New Zealand decriminalisation has not stopped the violence, stigma, prejudice, and more importantly under-age prostitution has increased.
As shown in countries that have chosen the legalisation route, like Germany, The Netherlands and some states in Australia and the United States of America, one of the consequences of legalisation or total decriminalisation is the significant increase and extent of the prostitution system, as well as an increase in organised crime and human trafficking.
Germany, which passed a law legalising prostitution in 2001, has seen a massive growth in the sex industry, as documented in an article published by the Economist. In a report titled: “Prostitution in Germany: A giant Teutonic brothel: Has the liberalisation of the oldest profession gone too far?” the Economist compares Germany and Sweden’s legal approaches.
Since 2001, prostitution is legal in Germany, but different states and cities enforce different limitations on where and how it can happen. The law in Germany aimed to remove the stigma of prostitution by for example, giving those selling sex full rights to health insurance, pensions and other benefits.
According to the law Germany those selling sex are required to register with the government and undergo regular health checks. However, according to DW news, only about 33,000 of those selling sex have officially registered in Germany, out of a government estimate of 400,000. This shows that legalisation has not removed the stigma. It is not clear whether the promise of better health has materialised, especially as exemplified by the real danger of contracting the Corona virus in addition to sexually transmitted infections and physical and mental trauma related to the sex, where the levels of post and ongoing traumatic stress are recorded as very high.
Two years before Germany went the legalisation route, Sweden pioneered a different approach, known as the Swedish model, Nordic Model, Sex buyer law or Equality model. The Sex Purchase Act in 1999, was part of a basket of legislative measures for tackling gender based violence. The Equality Model is a form of partial decriminalisation that decriminalises only those selling sex (mostly women) and gives them a right to safety and bodily integrity. Simultaneously, it criminalises those buying sex (from men) and those who profit from the exploitation of the vulnerability of others. Since 1999, the Equality Law has gained traction and has been adapted and adopted by a number of countries, including Norway (2009), Iceland(2009), Canada(2014), Northern Ireland(2015), France(2016), Ireland(2017), and Israel(2018).
The Equality Law is the only clear and coherent strategy for reducing the demand for prostitution. It would be in our country’s interest to consider the Equality model adapted to our context of high levels of violence against women, high unemployment and high levels of inequality. Fortunately we are half-way there. In 2007, parliament amended the Sexual Offences Act and criminalised the buying of sex. Section 11 of the 2007 Sexual Offences Amendment Act prohibits engaging sexual services of persons 18 years or older. What we need to do now is to decriminalise the bought, sold and exploited and support them to exit, while retaining the criminalisation of all the other aspects of the prostitution system.
There are indications of growing support for the Equality Model in South Africa.
- In December 2017, the ANC adopted a resolution at its 54th Elective Conference calling for a process to determine the societal norm on this issue. Resolution 2.28 states: “The calls to decriminalise Sex work must be subjected to a high level discussion and engagement with relevant multiple stakeholders, and to continue to engage society on this to determine the societal norm. Sex workers must be protected.”
- In June 2018 the National Council of Provinces (NCOP) unanimously adopted the Embrace Dignity Petition Report and the Study Tour to Sweden Report and called on the Minister of Justice to study the reports and consider the Swedish Model for dealing with prostitution. This was in response to the Embrace Dignity petition. In 2014 Embrace Dignity petitioned parliament to set up a multiparty ad-hoc committee of both houses to investigate the harms of prostitution and legislative frameworks that would address these harms.
- The High Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change Report Recommendations calls for: “Parliament should use its powers to introduce the following legislative changes to the Criminal Law (Sexual Offences and Related Matters) Act 32 of 2007 with regard to protecting those who sell sex. The Act should be amended to decriminalise prostitution in order to remove the unintended consequences arising from the criminalisation of prostitution for those who sell sex. Other legislative provisions contained in national, provincial and municipal legislation criminalising prostitution for those who sell sex or making it an offence should also be amended.
- The South African Law Reform Commission (SALRC) Report includes partial decriminalisation (a form of the Equality Model) as one of the two legal options in their report. The SALRC completely dismissed total decriminalisation.
- Minister Masutha said: “Looking at it of course from a South African perspective, looking at where we have high rates of poverty and looking at all these factors and what would be best suited to South Africa and they are essentially finding that decriminalisation is not suited or the best ideal for South Africa.”
Minister Masutha called for a national dialogue on this complex issue. The lack of clarity on national policy on prostitution has resulted in confusion within the criminal justice system. The release of the South African Law Reform Commission (SALRC) Report released in May 2017 by the Minister of Justice and Correctional Services, Adv Michael Masutha, and the Deputy Minister of Justice and Constitutional Development, Mr John Jeffery gives us an opportunity to debate policy on adult prostitution from an informed understanding of all the issues involved. Often people pronounce on this issue from gut feeling or other reasons, without the relevant information and research, which we now have at our disposal.
The aim of the investigation by the SALRC was to “review the fragmented legislative framework of all statutory and common law sexual offences.” The statutory provisions under review are contained in the Sexual Offences Act 23 of 1958 (The Sexual Offences Act). The secondary aim was “to consider the need for law reform in relation to adult prostitution and to identify alternative policy and legislative responses that might regulate, prevent, deter or reduce prostitution.”
The SALRC indicated that “as there are a range of legal responses to prostitution in open and democratic societies, it is essentially a matter of policy to decide which legislative model accords with governments‘ goals and strategies.
After considerable consultation and research, the SALRC presented its report to the government in 2015. The South African Law Reform Commission’s (SALRC) report on adult prostitution was released during a press briefing held in Pretoria on 26 May 2020. The report carries two legislative recommendations. The first option which is the Commission’s preferred option is to retain a totally criminalised legal framework. This option is coupled with an opportunity for people in prostitution to divert out of the criminal justice system so that they can access supportive resources and systems in order to exit prostitution if they should choose to do so.
The second option favours the partial criminalisation of adult prostitution. This option criminalises all role-players engaged in prostitution with the exception of the person providing the sexual service.
The first option is also known as prohibition. This is the present law in South Africa. As we all know, prohibition has not worked, even with diversion. Its main flaw is that it does not address the underlying socio-economic drivers of prostitution. Instead, it punishes the victims while those exploiting them are left off the hook.
Reflecting on the drivers of prostitution Masutha said: “The report also notes that the prevalence of prostitution in our society and the inherent exploitation associated with it are primarily social phenomena, which reflect deep-seated economic and sexual inequalities. This situation is perpetuated by the limitations in the laws that are supposed to deal with these social issues. For this reason, the report contains both legislative and non-legislative recommendations” (Masutha, 2017: Media briefing on Adult Prostitution Report).
Also known as partial decriminalisation, the second option is preferable, as it shifts the burden of criminality and stigma from those selling sex out of desperation and it gives them an opportunity to leave the exploitative prostitution system. It targets on eliminating the demand by criminalising the purchase of sex and the profiteering by third parties such as pimps and brothel keepers. Embrace Dignity has modified the bill along the lines of the Equality Model, suitable for South African conditions, which we have shared with the government, and we are ready to make submissions when the government tables the bill in parliament.
The Equality Model is the only coherent strategy for addressing prostitution and its harms. As stated by Phumzile Mlambo-Ngcuka, United Nations Under-Secretary-General and Executive Director of UN Women, the law should target those buying sex or profiting from the exploitation of women. As she puts it, they are the perpetrators of violence against women. In relation to commitment 17, we are most concerned that the broad brush approach of decriminalising the whole ‘sex work’ industry, is counterproductive and will perpetuate patriarchy, and increase violence and the objectification of women. By passing a law that targets the demand, Sweden has shown us that it is possible to change public opinion and behaviour. They have twenty years of experience to prove it. Having passed the Sex Purchase Act in 1999, Sweden has seen a reduction in both street prostitution and human trafficking. The law has shifted the stigma and accountability from the bought, exploited and sold, to the exploiters and perpetrators. It is no longer cool to buy sex in Sweden. We urge our government to adopt the Equality Model as part of effectively dealing with gender based violence a fatal blow.