One evening after work I passed two sex workers who had clocked on and were looking for potential clients. A taxi approached them and the male occupants nearly fell out the vehicle in their crude efforts to solicit the women. These men, exercising what is now commonly referred to as ‘toxic masculinity’, were evidently of the opinion that those who engage in sex work deserve – and ask for – degradation. One of the sex workers grew visibly agitated and walked off without bothering to respond to the blatant harassment, while the other remained where she stood, visibly anxious, but unwilling to move. It was a short encounter, and the taxi drove off a minute later. I, ashamedly, confess that I did not do anything except stand close to the immovable sex worker and throw my death stare. I was afraid. If I, as a privileged person with agency and feminist ideals, felt fearful when it was not my life (or dignity) at risk, how much more visceral and severe the fear of those who are economically marginalised and socially ostracised? Sex workers are threatened with sexual assault, harassment, and a myriad of other brutalities on a daily basis. So, why are we not protecting them?
Currently, the buying and selling of sexual services is criminalised under South African law. On 26 May 2017, the South African Law Reform Commission (SALRC) released its Report on Sexual Offences: Adult Prostitution, and recommended that adult prostitution continue to be criminalised. A second choice called for the partial criminalisation of the trade, which meant that all those engaged in prostitution would run afoul of the law, with the exclusion of the actual sex worker. The criminalisation of the buyer, for example, does not follow logic since it will only serve to further drive the industry underground, and as consequence, further endanger the life of the sex worker.
If partial criminalisation is enacted, once a sex worker is caught engaging in sexual activity, (s) he will be given the choice to apply for rehabilitation, which will include intensive therapy to aid in the search for new employment opportunities. In a country where unemployment levels stand at 6.2 million, and poverty levels of 55.5%, it is almost absurd that government would imagine that there are a plethora of employment opportunities that exist, and that are waiting to be unlocked by the economically disenfranchised. Furthermore, the report fails to mention how the rehabilitation programme will affect the lives and sustenance of relatives who depend on the income of the sex worker. While recognising that some actively choose to enter the sex industry, in whatever form, many others are coerced into selling sex because they are economically excluded or trafficked (the latter often as a result of monetary circumstances), and are tasked with providing for others.
Sex work remains a heavily stigmatised industry that forces sex workers to conduct their business in seedy alleyways away from the public eye. Because the sale of sex is criminalised, society tends to ostracise sex workers from their communities. It is imperative to understand that legal systems shape public perception. While any element of an industry is criminalised, stigma is fuelled. The criminalisation of the sex industry contributes to the notion that sex workers are free to be abused and deserve scorn since they engage in an unlawful activity. In fact, criminal law is sometimes used to threaten a range of marginalised groups: transgender people, homosexuals, young people, and sex workers. Inadvertently, by forcing sex workers to operate in secluded conditions, government further endangers their lives, since malicious activity, such as trafficking or sexual assault, go undetected and unreported. Sex workers receive little to no protection from clients who may attempt to harm or exploit them, and are discouraged from reporting their abuse to the relevant authorities; sexual brutality by police officers against sex workers is a well-documented atrocity. Police officials (as well as clients) are aware that sex work is illegal, and that once caught a sex worker will face a hefty fine (which they may be unable to pay) or jail time. Violent individuals are cognisant of the sex worker’s vulnerable predicament and are quick to exploit this.
It is imperative to note that there is a wide call for the decriminalisation of sex work, rather than the legalisation thereof. In legalese, decriminalisation is the removal of criminal sanctions for sex work as is demonstrated in New Zealand. Decriminalisation prohibits the state and law-enforcement officials from intervening in any sex-work related activities or transactions, unless other state laws apply. The current criminalisation of sex work hampers a sex worker’s rights to health, non-discrimination, equality, and security, however, it is of great importance that the exploitative nature of the industry is given due consideration.
Radical feminists argue that sex work is rooted in patriarchy, and as such, is inherently violent and anti-gender equality. Former United Nations (UN) special rapporteur on trafficking, Sigma Huda, said that the path to prostitution frequently involves an abuse of power and/or an abuse of vulnerability. In a time where the figures on modern-day slavery surpasses that of the Atlantic slave trade, it is tempting to buy into the argument that sex work, specifically, is inherently exploitative (as if all other jobs under a capitalist system is not), and that to save the vulnerable, we must criminalise them. Society ignores the agency and empowerment sex workers can and do get from their profession; society treats the consent of voluntary sex workers as less valid than that of other sex workers who may have been coerced.
Legalisation is stringent regulation through, for example, municipal and health acts with criminalisation for non-compliance, as is demonstrated by the Nordic countries, such as the Netherlands. Under a legalised system, sex work may only be legal in specified zones or brothels. Although the legalised model appears more tolerant and pragmatic in terms of combatting gender-based violence, the legalised model criminalises those sex workers who cannot fulfil the various bureaucratic obligations, and as such, retains some of the worst harms of criminalisation. If sex workers do not comply with what are often nebulous bureaucratic responsibilities, the law will turn them into criminals. A legalised model runs the risk of further excluding and endangering the already marginalised sex workers. Those sex workers who are undocumented, in particular, will be in a precarious position in terms of accessing and abiding by the law. For them, a legalised model will only reinforce the power of unscrupulous managers.
South Africa’s past and present differs significantly from western countries, insofar as gender equality is more of reality there than here. A decriminalisation model in South Africa may have the opposite effect of what is seen in New Zealand, but the criminalisation of sex work here has not abolished sex work, or made it safer for sex workers to access health and justice. South Africa’s rate of gender-based violence is one of the highest in the world and the ostracism and exclusion of sex workers voices and concerns does not aid in the eradication of the violence; it perpetuates it. Decriminalisation may, at the least, allow for greater access to the inalienable rights to health, justice, dignity and equality. Whether or not society can agree on the morality of sex work, everyone should have and be able to access their human rights. SA