Moral Laws (I) : Sex Work and current status

28 November

HISTORY

In South Africa both the selling[1] and buying[2] of sex are now criminal activities. For decades, however, it was only the sale of sex by sex workers (predominantly female) that was considered a crime. The demand upon which the existence of this supply depends – in other words, the buying of sex by predominantly male clients – was not criminalised at all. At most, the faceless buyer who had ‘given in to temptation’ could be convicted as an accomplice to the sex worker’s crime, in terms of the common law.[3] 

In 2002, the Constitutional Court[4], in a minority judgement, found this to be unfair discrimination between sex workers and sex buyers. The Court found that this skewed criminalisation reinforced double standards between the sexes in their expression of sexuality and reinforced gender inequality. This position was corrected only in 2007 when the Criminal Law (Sexual Offences and Related Matters) Amendment Act[5] (“the Amendment Act”) was passed, criminalising the buying of sex as well.

However, this legislated change has done little in the way of changing society’s perception in respect of sex buyers as compared to sex workers. As a result, the application of these laws continues to be discriminatory. Section 11 of the Amendment Act is hardly ever (if at all) enforced against buyers. In contrast, South African sex workers are, it is reported, constantly subjected to arbitrary arrests, as well as abuse at the hands of the South African Police Services.[6]

THE STATUS QUO AND ITS IMPLICATIONS

Moving beyond the current status and enforcement of laws surrounding commercial sex in South Africa, we have yet to delve deeper and question why the sale and purchase of sex is criminal at all. Is it because societies consider that the intimacy of the act is defiled by putting a price on it? Is it to prevent the proliferation of crimes committed against sex workers and other illegal activities allegedly associated with the sex trade, such as human trafficking, the exploitation of children and the use of drugs? What other reasons could there be for not only refusing to recognise sex work as a lawful form of employment or a legitimate trade, but to outlaw it as a crime?[7]

The effect of the criminalisation of sex work is that sex workers, although entitled to the enjoyment of constitutional rights, become invisible to the protection of certain areas of the law. In terms of criminal law, sex workers fear reporting crimes committed against them (such as assault, rape and theft) because the police either 1) ignore the charges laid based on the victim’s status as an illegal sex worker, or 2) perpetrate the same crime complained of (or worse) against the victim sex worker. This is encouraged by the notorious belief in the ‘rape myth’ – a belief that sex workers cannot be raped.[8]

In terms of our labour law, up until the Kylie case[9] in 2010, sex workers were invisible to the protection of the right to fair labour practices. However, the Labour Appeal Court held that the constitutional right to fair labour practices included persons employed in illegal activity. In Kylie, the Labour Appeal Court held further that sex workers were protected by section 185 of the Labour Relations Act from unfair dismissal by brothel owners, as sex workers were considered employees in terms of that Act.

Sex workers, being engaged in an illegal form of employment, are however not entitled to reinstatement as a remedy.[10] In other words, sex workers are entitled to protection against unfair dismissal by employers regardless of the fact that they are employed in an illegal activity, but the usual remedies are not available to them.

When it comes to health care, there is a stigma attached to being a sex worker seeking treatment. The stigma has diminished over recent years, but sex workers still fear arrest and some form of discrimination if they expose their line of work to health care professionals.[11] This results in decreased attention to health care by sex workers, and the neglect of their health is one of the reasons for an increased spread of AIDS/HIV in the sector.

In sharp contrast to all of the above, the criminalisation of the buying of sex has no negative repercussions (other than the rare enforcement of punishment for the commission of that crime) or stigmatisation of the buyers of sex. The enjoyment of the sex buyer’s rights is not hindered in any form.

THE DEBATE

There are arguments both for the sustained criminalisation of the sex trade (with, unsurprisingly, little emphasis on the buyers of sex) and for the legalisation or decriminalisation of the trade (again with little emphasis placed on the buyers). A summary of the South African position on sex work is that the legislature views it as harmful to society. But is that true? It can be argued that sex work does not cause harm to third parties.

There are certainly risks in the sex trade which participants should consider[12], but surely the causing of any harm to oneself (as a result of engaging in the trade) cannot be considered a crime. Additionally the consequences flowing from the status quo have been exceptionally harmful to those that the law is meant to protect. Part II of this brief discusses the above debates in depth and highlights the need for inevitable reform of a system which is failing.

Lee-Anne Germanos, Legal Researcher, Helen Suzman Foundation.

Footnote:

[1] Section 20 of Sexual Offences Act no 23 of 1957.

[2] Section 11 of Criminal Law (Sexual Offences and Related Matters) Amendment Act no 32 of 2007.

[3]Jordan and Others (Sex Workers Education and Advocacy Task Force and Others as Amici Curiae) v S (CCT31/01) [2002] ZACC 22 paras 64.

[4]Supra at paras 63 to 71.

[5]No 32 of 2007.

[6] Human Rights Watch, Why Sex Work Should be Decriminalised in South Africa, August 2019 <https://www.hrw.org/sites/default/files/report_pdf/southafrica0819_web_0.pdf> accessed 1 October 2019.

[7]A crime being understood to mean an act that is almost invariably injurious to the public interest.

[8] South African Law Reform Commission Report, Project 107, Sexual Offences: Adult Prostitution, June 2015 at page 248.

[9]Kylie v Commission for Conciliation Mediation and Arbitration and Others (CA10/08) [2010] ZALAC 8.

[10]Supra at para 52 and 55.

[11]Ibid fn6 at pages 21 – 29.

[12]Caveat emptor, caveat venditor