High time to decriminalise sex work

Amnesty’s Questions and Answers explanation for why sex work should be decriminalised is well argued and easy to understand. If you oppose sex work, especially because you are concerned about human rights and the “exploitative” nature of the sex industry, please read it.

We wish to add a few points to Amnesty’s arguments to make it clear why sex work should be decriminalised in South Africa.

All aspects of sex work are currently a crime in South Africa. Sex work, or the stigmatising term “prostitution”, refers to consensual sex between people older than 18. It is not human trafficking or child prostitution. The laws that make sex work illegal are a hangover of old apartheid laws such as the Immorality Act that made sex between races and same-sex relationships a crime. In South Africa, as far as same-sex and interracial relationships are concerned, we have been clear that the state has no business interfering with adults who make private choices about consensual sex. Yet, strangely, this is not applied when it comes to sex work.

The intention of lawmakers in making sex work a crime is to make sex work disappear. Yet, nowhere in the world has the criminal law been able to suppress people from buying or selling sex. All the criminal law does is make sex work more dangerous for sex workers, their clients and for society.

Criminalisation leads to human rights abuses

Research also shows that where sex work is a crime, it creates a context where unprotected sex is much more likely to happen and sex workers are more vulnerable to violence, rape and abuse. The criminal law gives police a lot of power over sex workers, and some police officers exploit sex workers by demanding bribes, harassing them and even assaulting or raping them. Instead of being protected by laws that criminalise sex work, many vulnerable female, male, and transgender sex workers are victimised by it. They are left unprotected against abuse of their most basic human rights.

We are not naive. We realise that even when sex work is decriminalised, sex workers will continue to face abuse from prejudiced police officers and others. But at least where sex work is no longer a crime, sex workers have more legal and social protection – the same as any other worker. It would be an important start, enabling sex workers to organise themselves to take effective legal action against state employees and clients who trample on their rights, and to tackle the stigma around sex work. This is the case in New Zealand, where sex work was decriminalised in 2003.

Criminalisation is bad for public health

Decriminalising sex work in South Africa would also be a vital public health intervention. Organisations providing direct health care services to sex workers have lodged complaints about police harassing and threatening outreach services. In some cases, police officers use the presence of condoms on a person as “evidence” that the person is a sex worker and sometimes arrest the person or confiscate the condoms. This contradicts public health policy and the efforts of the Department of Health to promote safe sex practices.

If sex work was decriminalised, sex workers would be able to enforce their contracts with their clients – just like anyone else who renders a service. It would help sex workers to negotiate safer sex with their clients and to refuse clients who do not want to use condoms. In fact, research in the Lancet suggests that decriminalising sex work would prevent a third to half of HIV infections among female sex workers.

The Constitution

Most South Africans say they are religious. Many Christians, Muslims, Jews and Hindus oppose decriminalisation for religious or moral reasons. But South Africa is governed by a Constitution which takes into account its plurality of beliefs. Our laws are not decided on the basis of religious beliefs. Many Christians believe that atheism or other religious beliefs are a form of sin, but very few would support the outlawing of other religions or atheism. Likewise, if you are a person of faith, you could support decriminalisation, because criminalisation causes harm. In supporting decriminalisation, you are not saying you agree with sex work, but that you recognise that the criminal law is making a vulnerable group of people more vulnerable.

Feminist objections

Why is sex work singled out for criminalisation? Some people argue that sex work is automatically exploitative and “violence against women”, or that we should prevent people doing sex work as it is “undignified” or hurting their bodies. Or that female sex workers are playing into stereotypes of being “sex objects” for men.

Many sex workers disagree and say they choose to do sex work (sometimes when there are limited choices available) and that they get power from sex work. There are many jobs in South Africa that we consider dangerous or play into unhelpful gender stereotypes of what men or women should be. Playing rugby, being a boxing champion, working in a gold mine or being a domestic worker are examples. Yet, we do not make these jobs crimes. Rather, we pass occupational health and safety laws, good labour laws and allow people to unionise to protect themselves. Sexual moralism should not be public policy.

By supporting decriminalisation, we are not blind to the hardships and frequent exploitation faced by people in the sex industry. We understand that some – albeit not all – people who do sex work have made a choice to do sex work often when there are not many other opportunities available. In criminalising sex work, we make their lives harder and more dangerous and often close the door to both legal and health services. We constrain their choices further. Instead of protecting a particularly marginalised group in South Africa, criminalisation make lives much harder and subjects sex workers to greater exploitation and indignities. We should recognise that everyone has human rights and are worthy of being protected. We should stand with Amnesty International and call for the decriminalisation of sex work.

Marlise Richter works at Sonke Gender Justice and Ruvimbo Tenga is a member of Sisonke Sex Worker Movement, part of the Asijiki Coalition for the Decriminalisation of Sex Work that will be launched on 27 August. The opinions expressed in this article are solely those of the authors. No inference should be made on whether these reflect the editorial position of GroundUp.