Great promise in sex work decriminalisation initiative – IRR

12 December 2022 

The South African Institute of Race Relations (IRR) welcomes the proposal to decriminalise the sale and purchase of sexual services through the Criminal Law (Sexual Offences and Related Matters) Amendment Bill. If adopted, the bill would represent a significant step in favour of civil liberty.

As a general principle of public policy, peaceful individuals engaged in voluntary, consensual activities with one another must not be exposed to criminal jeopardy.

If adopted, the proposed bill will repeal section 11 of the 2007 Criminal Law (Sexual Offences and Related Matters) Amendment Act, which prohibits ‘sexual services’ for ‘financial or other reward, favour or compensation’. The bill additionally expunges the criminal record of those previously convicted under this provision.

Decriminalising an activity is not a socially costless exercise, nor is it always politically or legally easy to institutionalise after so many decades, or even centuries, of unnecessary criminalisation.

Says IRR Deputy Head of Policy Research, Martin van Staden: ‘How South African labour law would apply to sex work, for example, is a difficult question to answer. It is not a copy-paste job, which could result in absurdities. Nonetheless, such difficulties in themselves cannot justify the continued practice of sending consenting adults, who voluntarily offer and receive non-violent products and services, to prison or subjecting them to discretionary harassment by police.’

In a 2013 article for the Georgetown Journal of International Law motivating the decriminalisation of sex work in South Africa, experts from Fordham Law School point to New Zealand as the only country at the time to have fully decriminalised the profession.

It was found, among other things, that decriminalisation in New Zealand resulted in sex workers being empowered to refuse service to specific clients and refuse to perform certain practices; that working conditions improved; better access to healthcare resulted; and sex workers had better access to justice when crimes were committed against them. It was also found that decriminalisation had not led to an increase in human trafficking, youth prostitution, or increased popularity of the profession.

There nonetheless remain many considered views on the social harms of a permissive approach to sex work. Where sex work does pose harm, this is better addressed through social pressure and light-touch regulation than by criminalisation and persecution.

‘If the Criminal Law Amendment Bill is adopted, there is great promise that those involved in the provision and purchase of sexual services will have their individual freedom recognised and their civil rights upheld by no longer being persecuted by the authorities, but rather protected. With the high rates of violent crime in South Africa, this move would additionally free up police resources to deal with more harmful offences,’ says Van Staden.

Issued by Martin van Staden, Deputy Head of Policy Research, IRR, 12 December 2022