In Discussion With Parliament About The Equality Law

Laws Governing Prostitution Come Under Discussion

“South Africa is ‘a source, transit, and destination country for men, women, and children subjected to both forced labour and sex trafficking’, with South Africans constituting the largest number of victims within the country.”

This sobering fact along with many other issues relating to prostitution in South Africa, such as organised crime, drug trafficking, sex tourism and commercial sexual exploitation, came under scrutiny at a dialogue forum with legislators from the South African parliament from 23 – 25 February. The dialogue forum, which was hosted by Embrace Dignity and Equality Now, was held to broaden the legislators understanding of issues surrounding prostitution and how to effectively use the law to end it. Equality Now is an international organisation that advocates for the human rights of women and girls around the world.

The legislators, along with parliamentary researchers and staff, experts and survivors, met at the Ocean Breeze Hotel in Strand, Cape Town to dissect the current and possible future laws on prostitution in South Africa, in particular what is referred to as the Equality Model Law (or Nordic Model Law), and its implications for women and girls.

Through the forum, Embrace Dignity and Equality Now increased awareness among the legislators on the role of the law in protecting the rights of women and girls caught up in prostitution, and the complex legal, social, human rights and gender equality issues raised by the harms of and oppression caused by prostitution.

“This dialogue forum allowed an open sharing of key trends, issues and factors relating to prostitution in South Africa and its underlying causes, including issues of what drives the demand and how to prevent entry and support exit from prostitution. It also explored the international, regional and national legal frameworks; identified ongoing law reform initiatives and discussed legislative options regarding prostitution in South Africa. At the same time, it provided an opportunity for legislators to discuss effective strategies and programmes for combating prostitution using the law,” said Ms Nozizwe Madlala-Routledge, Executive Director of Embrace Dignity.

“Looking at examples from around the world, such as Germany, the Netherlands and New Zealand, which either legalised or decriminalised prostitution, it is clear that legalisation has not achieved its intended purpose – that is to remove the harms of prostitution. On the other hand, the example of the Sex Purchase Law, also known as the Nordic Model Law, passed by Sweden in 1999 is being copied by a growing number of countries, including Norway, Iceland, Canada, France and Northern Ireland and the Republic of Ireland, and is being considered by Wales and England. Our aim is to increase the understanding by legislators of effective options on how to deal with sex trafficking and prostitution at a legislative and policy level,” said Ms Tsitsi Matekaire, Programme Manager: Sex Trafficking at Equality Now.

Added Madlala-Routledge: “The Equality Model Law that Embrace Dignity is advocating for criminalises the purchaser of sex and decriminalises the seller but at the same time recognises and is a response to the South African context of poverty, unemployment, poor education, violence against women and a high drop-out rate amongst learners. This law will also compel government to provide access to services, job skills and funded programmes that will increase the options of prostituted people and allow them to enter the job market or create their own livelihoods.”

Participants at the forum included the Chairperson of the Multiparty Parliamentary Women’s Caucus, the Honourable Masefele Story Morutoa; the Acting Chairperson of the National Council of Provinces’ (NCOP) Petitions Committee, Honourable Moses Mhlanga;  the Whip of the Women’s Committee, Ms Phumzile Bhengu; the Deputy Head of Mission of the Swedish Embassy in Pretoria, Ms Karin Hernmarck-Ahliny; the Principal State Law Adviser of the South African Law Reform Commission (SALRC), Advocate Dellene Clarke; a Programme Specialist from UN Women, Ms Ayanda Mvimbi; and Dr Lesley Ann Forster, Director of Masimanyane Women’s Support Centre based in the Eastern Cape, as well as survivors who have a personal knowledge of the harms of prostitution and are advocating for its abolition.

At present, prostitution and sex trafficking in South Africa are governed by three laws – the Sexual Offences Act of 1957, the Criminal Law (Sexual Offences and Related Matters) Amendment Act of 2007, and the Prevention and Combating of Trafficking in Persons Act (PACOTIP).

“The fact that adult prostitution is regulated under three different pieces of legislation complicates law enforcement and results in harm and injustice for prostituted people. The survivors at the meeting expressed very forcefully that this injustice must end and that they should not be criminalised for their own oppression. The delay in issuing the South African Law Reform Commission’s recommendations on Adult Prostitution is harming women and is a clear indication of a lack of political will to address patriarchy, gender-based violence and the vulnerability of marginalised people in our country. If this injustice was happening to any other sector of our society, a state of emergency would have already been declared,” said Madlala-Routledge.

“While PACOTIP already allows us to not only criminalise all forms of sex trafficking, but also places the obligation on government to drive programmes to prevent and combat trafficking, provide better reporting on trafficking statistics and guidelines on victim assistance measures, victims that are prostituted are still criminalised through the current laws of South Africa, making it even harder for them to leave prostitution and re-enter the job market in future.”

Discussions around how to legislate Adult Prostitution in South Africa has been an ongoing one.

In May 2009, a discussion paper on Sexual Offences: Adult Prostitution was published, with the SALRC calling on the public and other stakeholders for comment. Eight workshops were held in urban and rural areas as well as meetings with adult prostituted persons. The aim of these interactions along with the more than 2 600 submissions received from legal experts, NGOs, prostituted persons, brothel owners, health care officials, religious leaders and the general public, was to assist the SALRC to determine the “appropriate legal solution”. Four possible solutions – non-criminalisation of prostitution; regulation of prostitution, partial criminalisation (buyers are prosecuted but not sellers), and total criminalisation of both the buyer and seller – were identified in the discussion paper after which a Report was submitted to the Minister of Justice and Constitutional Development with recommendations to proceed.

“During the dialogue with legislators we also called on the government to immediately release the final report of the South African Law Reform Commission and in the interim to declare a moratorium on the criminalisation of prostituted people and provide access to services and support to exit prostitution,” said Madlala-Routledge.

Photo: The Chairperson of the Multiparty Parliamentary Women’s Caucus, the Honourable Masefele Story Morutoa (left), and the Executive Director of Embrace Dignity, Ms Nozizwe Madlala-Routledge, shares a light moment in between the forum discussions. (Nico Kinnear)

Background To The Equality Law Model

Discussions around how to legislate Adult Prostitution in South Africa has been an ongoing one which started in 1998 with the South African Law Reform Commission’s (SALRC) expansion of an issue paper (a short essay on a specific topic) on Sexual Offences By and Against Children to include “all sexual crimes by and against adults”. This paper led to a review of “all common law and statutory sexual offence crimes” and an investigation, which was further expanded by the then Deputy Minister of Justice and the Justice Parliamentary Portfolio Committee. Named the SALRC Project 107: Sexual Offences and with a sub-project focused on Adult Prostitution, the SALRC decided to divide its investigation into “four separate  offence papers”, “dealing with the substantive law, the procedural law (both to the exclusion of adult prostitution), adult prostitution and pornography”.  This process would take the form of an issue paper followed by a discussion paper which would culminate in a report and, where necessary draft legislation.

Between 1999 and 2001, discussion papers on the Substantive Law (rules that determine the rights and obligations of individuals and collective bodies) and the Procedural Law (practices and procedures that courts and lawyers for example must follow to properly try a case) was published, with the latter culminating in a Report. By 2004, a bill was tabled and the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 known as the Sexual Offences Amendment Act was passed.