It was with great interest that we read the recent article in the mail and guardian (“Human Rights Group Rejects Sex Trade Bill,” Jan. 20, 2022, also posted online.)
Debates about sex work, or as some still call it, prostitution, are as old as humanity itself.
Liberal and radical feminists have well-documented debates about the treatment of sex workers. Debates go back and forth between normative frameworks and conceptual arguments about the right to choose and self-determination.
Many other crimes are mentioned in the same storylines, along with sex work, for example, organized crime, police corruption, child sex work, and human trafficking. These crimes have a devastating impact on society. It stands to reason that the widespread criminalization of sex work drives it underground, conceals it, and thereby creates a fertile environment for these crimes to germinate in our communities.
The Department of Justice and Constitutional Development recently released the Criminal Law Amendment (Sex Offenses and Related Matters) Bill for public comment. The bill seeks the decriminalization of sex work, as well as the expungement of criminal records for those who have been convicted of sex work in the past.
He M&G The article claims that the bill will “provide little to no relief” to sex workers. We, on the other hand, believe that it will be so.
Currently, sex work is criminalized through two statutes, namely the Sexual Offenses Act 1957 (Act No. 23 of 1957), formerly known as the Immorality Act, and the Criminal Law Amendment Act (Sexual Offenses and related matters) 32 of 2007. (Law No. 32 of 2007).
The legislative framework that currently regulates sex is also fragmented, as the Sexual Offenses Act of 1957 has already been partially repealed, with the remaining sections on sex work awaiting revision.
Decriminalization or non-criminalization has the effect of repealing all laws against sex work and removes provisions in our laws that criminalize sex work. For us, this is a necessary intervention because it will allow us to get to a point where we are able to make a distinction between voluntary sex work, where a sex worker chooses to be a sex worker, as opposed to involuntary sex work, meaning work forced sexual or sexual exploitation or trafficking.
The continued criminalization of sex work means that sex workers, of whom the vast majority are women or transgender people, are left extremely vulnerable. They face human rights violations on a daily basis.
There is no doubt that the continued criminalization of sex work leads to gender-based violence. The ANC-led government has already put a number of initiatives on the table as part of its efforts to eradicate gender-based violence. This bill is no exception.
Several regional institutions published in December last year a report entitled Equal rights, human rights: protecting the rights of sex workers: evidence on human rights violations, 2022. It clearly establishes that sex workers deserve the same protection of their rights rights before the law than society as a whole.
And yet, studies show that sex workers’ human rights are continually violated. The ongoing criminalization of sex work further contributes to gender-based violence and femicide, as it leaves sex workers unprotected by law, unable to exercise their rights as citizens, and open to abuse in general.
For this reason, the ANC, in its 54the resolutions of the national conference, stated that “calls to decriminalize sex work should be subject to high-level discussion and engagement with multiple relevant stakeholders and continue to engage society in this to determine the social norm. Sex workers must be protected.” This was repeated in the 55 of the ANCthe conference draft resolutions.
We believe that decriminalization will minimize human rights violations against sex workers, give them better access to health and reproductive health services, and will also mean compliance with labor and health and safety laws. It will make it easier for law enforcement to investigate and prevent human trafficking.
The bill does not regulate commercial sex. It follows a two-step approach, in the sense that it does not decriminalize and regulate the industry at the same time. It is only about decriminalization, with the regulation to be followed at a later stage. It is important to note that our existing laws prohibiting children from selling sex and trafficking sex are still in effect.
In response to those who say that brothels will now suddenly appear in all of its suburbs, this is not the case, as municipal bylaws would remain in force and would still establish where prostitution can and cannot take place in public spaces, for example, banning the sale of sex in certain areas.
Sex workers are people. They are entitled to the same human rights as everyone else. We must move away from a society that controls bodies and sexuality to a society that affirms human rights for all.
— This article has been edited for brevity.
Moropene Ramokgopa is the ANC’s second deputy general secretary and the national coordinator of the ANC Women’s League task force.
