written by Irene Whelan Vita and Savannah Estridge, Irene and Savannah are Interns at Embrace Dignity. 

In a statement released by the NGO, Sonke Gender Justice in 2016, the claim was made that the Equality Law, in other words partial criminalisation of “sex work”, will not help “sex workers” or South African society. We do not agree.

The question of the appropriate legislative approach to prostitution has been a controversial and heated topic for many years. This debate has seen members of parliament asking themselves an important question at this time in South Africa’s history: Which form of legislation will protect the rights of those individuals who sell sex and eliminate abuse and exploitation of some of the country’s most vulnerable women?

On the one side of the spectrum is full criminalisation, where the buyer, the pimp, and the seller are criminalised for engaging in prostitution related offences. The opposing view is full decriminalisation or legalisation, which has been enacted in countries such as the Netherlands, Germany, and parts of Australia. The rationale behind this policy is that prostitution is a consensual act between two people in exchange for payment, that prostitution should be a regulated market where “sex workers” have access to medical services and can report violent crimes without the fear of being incarcerated themselves. Both views are fundamentally misguided.

Full criminalisation is detrimental to the rights of prostituted women who are often coerced into prostitution and suffer violent physical and emotional abuses through the exploitation of their bodies. Full criminalisation blindly condemns all involved; those who sell and purchase sex, as well as benefitting third parties such as pimps and brothel owners. It punishes indiscriminately not only those who exploit others, but also those who are exploited. Under this legislation, prostituted persons are deterred from reporting to the police any abuse suffered at the hands of those who exploit them. This leaves them at great risk of injury and even death.

Full criminalisation fails to recognise the fact that most people who sell sex are not doing so out of their own free will, yet the law punishes them for having a lifestyle that was chosen for them by circumstances of poverty, oppression, and misogyny. It fails to acknowledge that the vast majority of prostituted persons are victims of their environment; economic and physical coercion, poverty and addiction. This induces a situation where the lack of real choice pushes them to choose between the lesser of two evils in order to survive and provide for their loved ones.

Criminalisation also prevents prostituted persons from exiting prostitution as it leaves a permanent red mark – masked as a criminal conviction – on their lives, thereby barring any prospect of them getting a different job. This fuels a negative spiral that leads to relapses and incarceration. Because this law does not provide resources to address the root causes of why women (in this case) are resorting to prostitution in the first place, nor provides prostituted women with alternative ways to support themselves or their families, they are very likely to have to continue to rely on prostitution in order to survive.

Full decriminalisation, in theory, is meant to protect those exploited through prostitution, but fails to do so. Several countries have attempted to regulate the industry to keep those prostituted safe. Unfortunately, however, this method has been unsuccessful. What happens behind closed doors is difficult to regulate and so those in prostitution continue to frequently suffer abuses and still fear reporting on such a taboo topic.

Decriminalisation, on the other hand does not address the demand for purchased sex. As a result human trafficking often skyrockets in countries that fully decriminalise prostitution. In the Netherlands, Australia and Germany, where prostitution is legalised, it is estimated that 70-80% of  women prostituted are trafficked. In theory, this legislation intends to protect the most vulnerable by giving them autonomy over their own bodies but in practice, it fails to do so.

This method attempts to minimise the abuses that those in prostitution suffer, rather than address the root causes and the power imbalance between genders in order to prevent them in the first place. It has been estimated that 85% of prostituted persons are women whereas almost 100% of buyers are men. Legalisation fails to acknowledge that the sex industry is a result of a patriarchal rape culture that has normalised the idea that some have a birth right to purchase access to a person’s body merely by virtue of the position of power that they hold.  To provide a ‘regulated’ and ‘safe’ environment is to accept values of misogyny and gender-based oppression. Legislation does not tackle the problem at the root cause, it  merely tries to cure the symptoms.

We believe that the solution in South Africa is a middle ground – partial decriminalisation (also referred to as the Equality Model Law). This method decriminalises the exploited person being prostituted and criminalises those who exploit them (buyers of sex, pimps, and brothel owners). This way, those who are forced into prostitution, for instance, through trafficking, coercion, physical abuse, financial troubles, or a lack of education will not be punished. It addresses the gender inequality that is one of the root causes of prostitution, rather than only treating the existing harms caused by the industry.

Partial decriminalisation recognises that those who sell sex are victims and that the purchasing of sex is a form of gender-based violence. Additionally, the law provides for the implementation of exit programmes to support those who want to exit prostitution and helps them reintegrate into society by providing them with legal advice, health care, financial support and career training. Unlike legalisation, when implemented correctly, the Equality Model Law succeeds in giving women power over their own bodies and the ability to protect themselves. It will therefore prevent men from exploiting those in prostitution without a major risk of punishment for their actions. Exit programmes provide those in prostitution with the resources to control their own lives, take back their dignity, and determine their own destiny.

Critics of partial decriminalisation (also referred to as the Equality Model Law) have argued that the legislative proposal would not successfully reduce prostitution but would, instead, drive the industry further  underground, expose prostituted persons to more violence, and force them to resort to sexual activities with clients that they would otherwise not consent to. However, in Sweden, where the Equality Model Law was enacted in 1999, there was no evidence found to support that claim. In fact, since 1999, Sweden has experienced a 50% decrease in the number of persons involved in street prostitution and the scale of internet prostitution has risen at a much slower rate than in neighbouring countries1. In fact, the provisions of exit programmes ensure that prostituted persons can exit prostitution and are not forced to continue providing sexual services in more dangerous and violent circumstances.

Additionally, the Equality Law has made Sweden a much less attractive destination for human trafficking and the percentage of the population that is trafficked for prostitution in Sweden is 50 times less than in Finland, where prostitution is legal2. In the Netherlands, where prostitution was legalised in 2000, the Mayor of Amsterdam stated that the new legislation had failed to prevent trafficking, that “it appeared impossible to create a safe and controllable zone for women that was not open to abuse by organised crime”3.  The same concerns have also been echoed by the National Council of Women of New Zealand, which had originally supported decriminalisation, but later expressed concern about the fact that it was “still seeing girls as young as 13 and 14 on the streets selling their bodies”4.

In Germany, over one-third of prosecutors noted that legalising prostitution “made their work in prosecuting trafficking in human beings and pimping more difficult”5. In Australia, only 10% of prostitution takes place in Australia’s legal brothels and 90% in illegal markets rife with trafficking and exploitation6. There is an evident and strong correlation between prostitution and human trafficking, yet legalisation has failed to reduce either one.

It has also been argued that the Equality Model Law would not work in South Africa because the government does not have the means to fund exit programmes. This argument is shortsighted and not supported by any evidence. In fact, a study done in France in 2015 estimated the turnover generated from prostitution at €3.2 billion (R46 billion) annually, half of which is taken abroad7. The number of prostituted persons in South Africa is four times higher than in France and the percentage of female population in prostitution is nine times greater8. So, although no exact figure can be estimated, it is clear that the prostitution industry in South Africa generates an alarmingly high turnover which hinders economic growth for the country itself and contributes to the causes of unemployment. Additionally, the study estimated the social cost of prostitution to be around €1,6 billion (R24 billion) annually9. These figures show that reducing or abolishing prostitution is economically beneficial for society and would necessarily provide the government with sufficient funds to provide exit programmes.

South Africa should enact a law that reflects the reality that victims of prostitution are not criminals. To do this, it should follow the example of the most gender-equal countries in the world and enact the Equality Model Law in order to reduce gender-based violence, human trafficking and ultimately abolish prostitution.