The announcement on Friday by the minister of justice & constitutional development, Ronald Lamola, that the government will expedite legislative amendments to decriminalise sex work in South Africa should be welcome news to all who are animated by the urgent need to address the growing crisis of gender-based violence in our country.
It is common knowledge that the criminalisation of sex work in South Africa since the 1950s has done nothing to stop men and women from engaging in the purchase and sale of sexual services. Instead, criminalisation has driven the industry underground, where sex workers — particularly women, sexual minorities and other marginalised groups — have been subjected to horrific violence.
Criminalisation has meant that sex workers who are raped and brutalised are reluctant to report their perpetrators to the authorities for fear of prosecution. It has also meant that they lack access to public health facilities that could help stop the spread of sexually transmitted infections (STIs) and assist them with family planning.
The status quo is unsustainable, and the department of justice’s tabling of the Criminal Law (Sexual Offences and Related Matters) Amendment Bill of 2022, which will decriminalise sex work, should be heartily welcomed.
As the debate on the legal status of sex work has raged on, mischievous opponents have attempted to conflate the purchase and sale of sexual services between consenting adults with the trafficking and exploitation of sex workers, forced sex work and the rape and sexual assault of minors — all of which are crimes, and will remain so. The regularising of consensual adult sex work will open space, time and resources for criminal justice institutions to isolate and prosecute human trafficking, sexual violence and crimes against children, while ensuring that adult sex workers are able to access the rights enshrined in the constitution.
The criminalisation of sex work has also not led to the prosecution of clients, who are predominantly men. Instead it is sex workers themselves, predominantly women, who are routinely harassed
Around the world, sex work is criminalised in more than 60 countries, yet this has not stopped the industry from thriving. In Gambia — a country of fewer than 2.5-million people — there are estimated to be 3,100 sex workers despite a harsh government crackdown. In Angola, the number of sex workers is estimated to be 33,000; in Cameroon, 110,000; in South Africa there are an estimated 167,000 — despite sex work being prohibited in all of these countries.
The criminalisation of sex work has also not led to the prosecution of clients, who are predominantly men. Instead it is sex workers themselves, predominantly women, who are routinely harassed by some police officials, health practitioners and members of the public. The harassment and stigmatisation that sex workers have to endure often perpetuates or exacerbates other harmful behaviours, such as substance abuse, while isolating and ostracising them from the care they urgently need.
Studies have found that police officers harass sex workers for such “offences” as carrying too many condoms — which help slow the spread of HIV-Aids and avoid unwanted pregnancies. This forces women in particular to engage in risky sexual practices to avoid harassment.
In Senegal, the only African country to have legalised sex work — with the requirement that sex workers be over the age of 21 and have monthly examinations — providing sex workers with free access to condoms has made a positive difference in the battle against HIV-Aids and STIs. Only 7% of sex workers in Senegal are HIV-positive compared to an average of 37% across the African continent.
Legalising sex work will not result in a sudden rise in the solicitation of sex in public spaces. Instead, the proposed legal framework will empower municipal authorities to draft bylaws dictating where sex work can take place to ensure that it is not e close to sensitive spaces such as schools. Despite the pearl-clutching that this legislative amendment will like to draw from conservative quarters, minors will not suddenly be exposed to explicit materials and sexual activities. Instead, decriminalisation will protect minors from such exposure as the industry will, for the first time, be regulated.
Decriminalisation will also contribute to economic growth.
A 2022 report by the multinational professional services network KPMG and the University of Johannesburg calculated the cost of gender-based violence and femicide in South Africa in 2019 at R36bn. The figure included the cost of medical assistance for victims of gender-based violence, as well as human capital loss and judicial costs associated with prosecuting cases of violence against women and marginalised groups.
It is well known that limiting disease among the public reduces state spending on health care. While decriminalising sex work will contribute to reducing the spread of HIV-Aids and other STIs, regulating the industry also means it can be taxed for the first time.
One of the reasons that expediting the decriminalisation of sex work is a pillar of the government’s national strategic plan on gender-based violence is that illegal sex work enables men to get away with harassing women and other marginalised groups. Decriminalising sex work is a necessary first step towards restoring dignity to these workers and creating a more caring society.
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