As it stands sex work is illegal in South Africa and, quite frankly, it is a violation of human rights.

Despite dominant moralistic ‘values’ that seem to influence legislation, South Africa has made progress in terms of access to safe abortions (although, there is room of improvement), recognising the rights of LGBTIAQ+ people and abolishing capital punishment, but the fight for the decriminalising of sex work continues.

It seems evident that the illegal status of sex work is not only dangerous and shortsighted, but it also opens the door to discrimination and stigmatisation. These are hard-fought values, enshrined in our Constitution. Ultimately it perpetuates societal exclusion and gender violence.

Why the criminalisation of sex work in unconstitutional:

  • Making a legitimate form of labour illegal goes against sex workers’ right to free choice of work. This directly limits economic activity as envisaged in section 22 of the Constitution.
  • It doesn’t allow sex workers to form unions and, therefore, fight unfair working conditions and discrimination.
  • Criminalisation violates sex workers’ right to healthcare, makes health services inaccessible and doesn’t allow for participation in health policy regulations.
  • Criminalisation violates sex workers’ rights to be free from violence and to bodily and psychological integrity because police physically and sexually abuse sex workers, and sex workers are unable to access justice when they are the victims of violent crime, and thus;
  • It perpetuates gender violence in South Africa, a country already plagued by this epidemic.

Of course, as the Sex Worker Education and Advocacy Taskforce (SWEAT) points out: “Law reform for sex work has been in process for over a decade now. Many politicians say they can’t support decriminalisation of sex work because you — the public — don’t support change. This means that as many as 182,000 women and men who make a living selling sexual services in South Africa remain vulnerable to abuse and have no recourse if they experience violence.”

So it is clear to see the relationship between stigmatisation and violence.

SWEAT, The Commission for Gender Equality, Amnesty International and many others have actively fought for the rights of sex workers in South Africa and have highlighted the fact that the legalisation of sex work can actually help reduce the rate of HIV infection in the country.

In 2016, Deputy President Cyril Ramaphosa launched a three-year campaign called South African National Sex Worker HIV Plan that was largely inspired by research conducted by the University of California and the Centre for Disease Control, which found that there is an almost 60% HIV infection rate amongst women sex workers in South Africa.

To reduce the rate of transmission, the plan’s objectives include:

  • Encouraging the use of condoms, and reducing risky behaviour by creating a safe environment for sex workers and their clients; and
  • Providing services through peer-led programmes to make condoms and sex education resources readily available, to encourage responsible sexual behaviour, and to provide places or “drop-in centres” throughout the country where they can meet.

But, as journalist and activist Relebohile Motana points out: “If the government wants sex workers to receive the services suggested by the sex worker HIV plan, it will have to legalise sex work. South Africa will fail to reduce HIV transmission rates if sex work is regarded as being immoral and is stigmatised.”

“The South African National Sex Worker HIV Plan is like trying to put a plaster on a gushing wound. We need to get real about this issue and look at alternative options like the Nordic approach where the buying of sex is illegal, and not the selling of sex. After incorporating this change, prostitution was reduced by 50%. An approach like this, aided with Ramaphosa’s campaign could start seeing some change.” says Adv Jackie Nagtegaal

“We still have to talk about the transmission of HIV, and the criminal accountability of a sex worker who transmits HIV knowingly,” she adds.

In essence, there needs to be a shift.  A shift in the general conservative views of people to consider sex workers as citizens with the same rights as them, and there needs to be a long-term commitment from the Government to help remove the stigma from sex workers in South Africa so that more protection, education and accountability can be ensured.

The 2018 Sex Work Summit

On March 5, Parliament’s women’s caucus, which is made up of member from various parties, plan to facilitate a summit on sex work, after the ANC decreed that it plans to decriminalise the practice.

The summit will see stakeholders present their views and opinions on the South African Law Reform Commission’s (SALRC) Sexual Offences: Adult Prostitution report, which was released in May 2017.

The report puts forth two scenarios of how the government should approach sex work in South Africa.

  1. The government must maintain a fully criminalised legal framework.
  2. The government must enforce partial criminalisation, which will see all parties, except the person providing the sexual service, being criminalised.However, as caucus chairperson Masefele Morutoa points out, the writers of the report are seemingly unaware of the fact that legalising sex work would allow sex workers to access the criminal justice system. “This has been pivotal to the calls made by many sex workers calling for full decriminalisation,” she asserted.

Morutoa also mentioned that there has been massive interest from the public who want to have a say on the topic.

Stakeholders have until February 26 to make written submissions.

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