Sex work: where criminal law has no place

Sex Worker Advocacy Taskforce (SWEAT) and the Sisonke National Sex Worker’s Movement have welcomed Cabinet’s approved of a draft statute to abolish criminal penalties for sex work. Archive photo: Ashraf Hendricks

On 30 November 2022, Cabinet at last approved a draft statute to abolish criminal penalties for sex work (Criminal Law (Sexual Offences and Related Matters) Amendment Bill). The Bill scraps the crime of buying and selling adult sexual services. It opens a path to victory for activists who over long years campaigned for it.

The Bill aims to spear two history-encrusted laws: the Sexual Offences Act 1957 (apartheid’s fearsome “Immorality Act”), and section 11 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act of 2007. Both target adults, mostly vulnerable women, who make a living by selling sex.

Having secured Cabinet endorsement, the Bill is now up for public comment. The moralist lobby have seized the chance to push back hard. They want the law to continue punishing women and others who engage in sex for reward.

Yet Parliament should adopt the Bill – and as soon as possible. Penalties on adult sex work are a horrible hangover from a harsher, more ignorant, less public-health-conscious era. They have no place in a healthy democracy. As with ancient crimes targeting queer people like myself, and the appalling apartheid penalties for sex between black and white, these laws are harmful, degrading and unjust. We should consign them to the dustbin without more ado.

All the Bill does is to abolish crimes of sex work. Rightly, government foresees further legislation to regulate sex work: where and how and under what conditions sexual services may be offered for sale – just as we regulate other commercial interchanges.

Sex workers and human rights advocates have fervently welcomed the Bill. The Sex Worker Advocacy Taskforce (SWEAT) and the Sisonke National Sex Worker’s Movement have long urged decriminalisation. They argue, convincingly, that making sex work a crime exposes (mainly) women to blackmail, police malpractice and client abuse. Decriminalisation enables sex workers to seek and assert the law’s protection.

Some however claim that ending the crime of sex work licenses exploitation and will lead to increased sex trafficking. Many propose instead the “Nordic model”. This decriminalises sex work for those providing it – but targets clients who use it. In other words, buying sex remains a crime, though the seller is only indirectly targeted; the main target is the “john”, who pays.

We are right to be concerned for the safety and dignity of sex workers. Many are impoverished women or queer people, often more vulnerable because of race or cross-border status. Their work is often difficult and sometimes dangerous.

Those who say “scrap the crime” are not blind to this. On the contrary: it is precisely these vulnerabilities that impel them to advocate decriminalisation. It is because many who sell sexual services as a livelihood strategy are marginalised or stigmatised or poor that dumping the weight of the criminal law on top of their other burdens is so cruel.

Sex workers themselves overwhelmingly plead for scrapping these laws. They have firsthand knowledge of the grief and perils of their daily tasks. Proponents of decriminalisation point out that, throughout history, criminal laws have never stopped sex work. It has thrived in every legal system. Criminalisation is a merely “symbolic” abolition – an ineffectual legal measure that nevertheless cruelly marginalises sex workers.

As SWEAT simply states, “criminalisation kills”. When sex work is illegal, sex workers are condemned to unsafe, unregulated working conditions, with no practical legal protections as workers, and little access to health care or other support.

In interviews with sex workers across South Africa, Human Rights Watch found they report being vulnerable because criminalisation forced them to work in or go to dark or dangerous spots “and because criminals, including sadists, thieves, and rapists, pretending to be clients, knew they had bad relations with the police”. Sex workers described being laughed at by police when they tried to report rapes, “or being told that as sex workers, they could not be raped.”

Some never bother reporting rape or abuse, because, with criminal threats looming, relationships with police feature arbitrary arrests, lack of due process, abusive practices and – all too often – the threat of rape, assault or bribery by the police. Almost three-quarters of the 46 sex workers Human Rights Watch interviewed for its study had been arrested multiple times, some as often as two or three times per month.

In Revolting Prostitutes, sex workers Juno Mac and Molly Smith show convincingly how the Nordic model harms sex workers. Criminalising buyers of sexual services leads clients to seek more secrecy. This increases risk, as sex workers remain prey to surveillance, harassment and “humiliating” criminal law processes to convict “johns”.

These findings confirm years of research findings in South Africa and the continent.

The savvy Minister for Justice and Correctional Services, Ronald Lamola, echoed these insights. He explained how the Bill (in which his Deputy, John Jeffery, had a significant hand) embodies our country’s National Strategic Plan on Gender-Based Violence and Femicide.

The reason is simple, but ghastly – “criminalisation of sex work contributes” to gender-based violence and femicide. This is because “it leaves sex workers unprotected by the law, unable to exercise their rights as citizens and open to abuse generally, not least when they approach state facilities for assistance.”

Government reckons – and sex workers agree – that the Bill will reduce stigma, discrimination and violence against sex workers; help them access health care, including reproductive health services; and bring sex workers closer to health, safety and labour laws. The evidence supports these hopes.

New Zealand decriminalised sex work in 2003. Two decades later, the sex industry has not grown. Nor has it become “a global destination country for sex trafficking”, as scaremongers opposing our Bill prophesy here. No. The number of sex workers in New Zealand has remained steady – while sex workers there report improved living and working conditions. Sex workers found that police attitudes improved and that it was easier to refuse clients. Almost all considered that they now had increased employment, legal, health and safety protections.

These considerations are powerful. But the base argument is the same as with queer people and cross-racial sex: a decent society has no right to tell consenting adults in private, under criminal threat, what they should do with their bodies.

The “Nordic model”, claiming concern for sex workers, springs from the same impulse as all other criminal laws on sex work – moral condemnation. The law rightly disapproves harmful conduct. But it has no place in the private relations of consenting adults. This debate is about safety – but, more than that, it is also about dignity and autonomy.

Sex workers’ demands are clear: decriminalise, now. Once we get the criminal law out of the way, we can begin to offer comprehensive, accessible support services, while respecting the full humanity of sex workers. They have agency – and are capable of making their own decisions on how to feed their children, house their parents and pay for studies.

The sooner we rid our statute book of the degrading attempts to impose moral views on sex workers, the better we can address the real ills of our society: poverty, inequality, corruption, gangsterism and the grim power of criminal syndicates in government. We have much to do. This Bill will give us more power to do it.

Judge Edwin Cameron is the Inspecting Judge of Correctional Services. Views expressed are not necessarily GroundUp’s.

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