Whether the law can legitimately regulate morality is an issue which is often debated. Almost all of South Africa’s criminal laws have some foundation in morality and the question of how stringently the state may regulate morality is increasingly being challenged. Recent deliberations around issues such as the termination of pregnancy, sodomy and drug use have all included elements of this debate. The Constitutional Court recently heard another case along these lines, this time concerning the criminalisation of sex work. Although the judgement has not yet been handed down, the case is of great interest to human rights activists and the public at large.

At issue in the case was whether sections 2,3 and 20(1)(aA) of the Sexual Offences Act, which prohibit brothel keeping and the exchange of sex for reward, should be struck down, or whether there are legitimate social reasons for retaining these provisions.

The Sexual Offences Act is a piece of legislation with a long and dubious history. Originally called the Immorality Act, this legislation prohibited inter alia inter-racial relationships and homosexual relationships. It is clearly a statute which primarily aims to impose a particular sexual morality on South African society.

Part of this morality includes regarding extra-marital sex as “unlawful carnal intercourse” and prohibiting sex for reward. Much of the Act has been repealed or altered over the years and the remaining provisions relate primarily to sex work and sexual offences against minors.

In so far as it relates to protecting children, there is broad recognition that the existing Sexual Offences Act is insufficient and ineffective. There is also increasing recognition that the manner in which the Act deals with sex work needs to be reconsidered. Various NGO’s and even sectors of government have recognised this. For example, the Gauteng Department of Safety and Security set up a task team to investigate this issue in 1996. The task team’s final report recommends that sex work be decriminalised. In 1999, Government published its first report on terms of the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW). The report states “Some Constitutional rights may be violated by current laws on prostitution”.

The argument that laws prohibiting sex work violate sex workers’ rights is a complex one as there is no particular right which is obviously violated. However, if one examines the prohibition and its effects more closely, it becomes clear that there are a number of rights which are infringed. These include the right to freedom and security of the person, the right to dignity, the right to privacy, the right to equality and the right to freedom of trade, occupation and profession.

Any debate around possible reform of laws relating to the sex industry, whether through the Constitutional Court or the Legislature, needs to take into account the socio-economic context in which sex work takes place in South Africa. This requires decision-makers to consider the diversity of the sex industry, the fact that most sex workers are women and the fact that many sex workers become involved in the industry as a result of poverty and unemployment.

Decision makers also need to consider the practicability of laws controlling the sex industry and the impact of these laws, both on sex workers and other stakeholders. Of great relevance is the fact that the prohibition on sex work victimises a group of people who are already vulnerable and marginalised and often do not have a voice to speak out about their experiences. The evidence in the Jordan case shows clearly that sex workers are vulnerable to violence and stigmatisation and that this is exacerbated by the fact that sex workers are labelled as criminals.

Criminalisation increases sex workers’ vulnerability to violence because sex workers are regarded as less worthy than other people. Also sex workers do not have access to police protection and often work in dangerous places to avoid police detection.

Criminalisation prevents sex workers from demanding fair and safe working conditions as the labour legislation does not apply to the sex industry. This means that if brothel owners are so inclined, they can exploit their employees without worrying about any repercussions. 

Sex workers have limited access to health and welfare services because they are afraid that if they seek these services and disclose their occupation they will be arrested or discriminated against. Forcing the industry underground also makes it very difficult for health service providers to access sex workers. This has important implications in the light of HIV/Aids. This is why organisations such as RHRU (Reproductive Health Research Unit) support the decriminalisation of sex work.

In the Jordan case, the State attempted to justify the violation of sex workers’ rights by calling on a variety of social ills which it claimed the laws against sex work help to prevent. This claim is not based in fact and disregards the total inability of the criminal prohibition on sex work to eradicate or even limit sex work.

The state argued in that laws against sex work and brothel keeping protect against:

• child prostitution
• trafficking in women and children
• public nuisance
• public health
• other associated crimes

Child prostitution:       

The Child Care Act criminalises involvement in child prostitution. There is no need for all sex work to be criminalised to achieve this aim. In fact, allowing the sex industry to exist above ground will make it easier to identify and target child prostitution syndicates. It will also be easier for adult sex workers to co-operate with police to get child prostitutes off the streets. 

Trafficking in women and children

As with child prostitution, there is no evidence that laws against sex work are effective in combating trafficking in women and children. It is important to note that people are trafficked into a variety of industries, including sex work, domestic work and farm work. South Africa needs to develop specific anti-trafficking legislation to combat this phenomenon.

Public nuisance

There are a myriad of laws against public nuisance, including laws against noise, littering, loitering and indecent exposure. These laws (usually municipal by-laws) can be used to reduce the public nuisance manifestations of sex work. However, it is important to realise that not all sex workers cause a public nuisance and that there are often circumstances which aggravate the situation, for example the fact that most public bathrooms are not open at night.

Public Health

There is a concern that decriminalisation of the sex industry will increase the levels of HIV in South Africa. This is not true. This statement is based on an assumption that that legalisation or decriminalisation of the sex industry would result in a “boom” in the industry. There is no evidence of such a boom in countries which have changed their laws around the sex industry. Furthermore, while the industry is underground, health service providers struggle to access sex workers and vice versa. Also sex workers are disempowered and are less able to insist on condom use with clients.

Associated crimes

There are clearly links between sex work and other crimes under the current system. However, SWEAT argues that these links exist not because of the nature of sex work but because of the fact that it is criminalised and forced underground. Decriminalising the industry will help break the links between sex work and criminal activities such as gangsterism and drugs.

It is also interesting to note that when developing strategies to combat the various social ills discussed above, the government has not included the suppression or eradication of sex work. For example, the suppression of prostitution is not identified in the National Crime Prevention Strategy (1996) as a priority for the prevention of other crimes, nor is it identified in the National Drug Master Plan (1998) or in the HIV/AIDS/STD Strategic Plan for South Africa (2000).

The only basis for maintaining a prohibition on sex work is a moral one. In the context of a heterogenous society which promotes religious tolerance this is not in itself an acceptable reason for criminalising sex work. This is particularly so if one considers the adverse impacts which criminalisation has on sex workers, most of whom are women and many of whom enter the sex industry because of poverty and unemployment. South Africa has undertaken to protect the fundamental human rights of its citizens.  This protection cannot be denied simply because the people in question do not adhere to the predominant societal morality.

Helen Alexander
Legal Advocacy Co-ordinator
SWEAT