The case for decriminalization of sex work in South Africa.

Author:Mgbako, Chi Adanna
  1. SEX WORK AND LEGAL REFORM A. Criminalization of Sex Work in South Africa: A Failed Experiment 1. Ineffective and Costly 2. Stigma 3. Police Abuse 4. Lack of Access to Justice 5. Lack of Access to Health Services 6. Abuse From Clients and Others with Whom Sex Workers Transact 7. Lack of Labor Rights B. Partial Criminalization Results in Continued Harm to Sex Workers C. Legalization and Regulation: Underground Markets and Continued Harm II. DECRIMINALIZATION AND ITS POSITIVE IMPACT: NEW ZEALAND CASE STUDY A. Decriminalization and Violence Against Sex Workers B. Decriminalization, Trafficking and Youth in the Sex Trade C. Decriminalization and Demand for Sex Work III. SOUTH AFRICA SHOULD DECRIMINALIZE SEX WORK IN ORDER TO PROTECT SEX WORKERS' RIGHTS IV. DECRIMINALIZATION OF SEX WORK FULFILLS SOUTH AFRICA'S CONSTITUTIONAL AND HUMAN RIGHTS COMMITMENTS A. Free Choice of Work B. Freedom of Association C. Right to the Highest Attainable Standard of Health D. Right to Freedom and Security of the Person E. Right to Dignity V. CONCLUSION I. SEX WORK AND LEGAL REFORM

    1. Criminalization of Sex Work in South Africa: A Failed Experiment

      The 1957 Sexual Offences Act and subsequent amendments created the current legal regime of total criminalization of sex work in South Africa. (2) It is illegal to do sex work or be associated with sex work, and therefore sex workers, clients, brothel keepers, and others are subject to arrest and prosecution. The Sexual Offenses Act grew out of the apartheid-era Immorality Act, which banned sex between races. (3) Thus, the modern law that criminalizes sex work in South Africa is rooted in apartheid-era laws' failed attempt to control consensual adult sexual behavior. This sub-section explores how criminalization of sex work in South Africa is ineffective, wastes government money and, most importantly, leads to human rights abuses against sex workers, including stigma, police abuse, lack of access to justice, barriers to health services, abuse from clients and other individuals with whom sex workers transact, and lack of labor rights.

      1. Ineffective and Costly

        The ultimate goal of South Africa's criminalization of sex work is the eradication of sex work. In this regard, criminalization has failed. Sex work is a reality in South Africa, and throughout the world, and criminalization has reduced neither the supply nor the demand for sex work. (4) Criminalization has only wasted government money and fuelled human rights abuses against sex workers. States waste money on police enforcement and court costs associated with the criminalization of sex work. (5) The South African government spends at least 14 million rand ($1,620,206 USD) a year to police and prosecute sex work. (6) Convictions resulting from the prosecution of prostitution cases are much higher than convictions for serious crimes. For instance in 2000, cases

        involving prosecutions for prostitution resulted in convictions in 33% of cases, while convictions for carjacking stood at 2.3%, aggravated robbery at 2.3% and rape at 7.56%. (7) The ongoing crime problems in South Africa may no longer be about lack of resources, but about the inefficient use of government resources--the government wastes money by policing sex work instead of directing resources to serious and genuine crimes involving victims.

      2. Stigma

        Law plays an important role in influencing societal attitudes. Criminalization stigmatizes sex workers as criminals, which negatively affects the way society views them. (8) Because sex workers are criminalized, communities often believe abuses against sex workers are justified. As a result, sex workers suffer stigma, discrimination, and abuse from many facets of society including police, health workers, schools, banks, and other service providers. (9) Criminalization also has an effect on family life. Despite being breadwinners for their families, stigma causes many sex workers to feel shame and to try and hide their profession. Sex workers also report that their children face stigma. (10) As one sex worker argued, "Sex work is our job--we work to put food on the table for our children and people are judging us. The government has to do something about people judging us." (11)

      3. Police Abuse

        Criminalization creates an enormous power imbalance between sex workers and police. This results in police abuse against sex workers in the form of improper arrests and detention, as well as economic, sexual, and physical abuse. (12)


        Police improperly arrest and detain sex workers. Police often improperly use municipal by-laws, including those concerning loitering and nuisance, to harass and arrest sex workers, (13) and force them to pay arbitrary fines even when they have not contravened these by-laws. (14) Sex workers have also reported that police arrest them for being "known sex workers," even when they are engaged in activities unrelated to sex work. (15) In addition, police often place arrested sex workers in dirty cells and may rob them of their possessions while they are jailed. (16) Sex workers have also faced brutal treatment while in detention. In one incident, Cape Town police kicked a sex worker while she was in custody with such force that they damaged her internal organs, nearly killing her. (17) Police will often hide or remove their name badges when dealing with sex workers, making it nearly impossible for harassed sex workers to report these types of police abuses. (18) Many sex workers get trapped in this cycle of arbitrary arrests and detention that only serves to further entrench sex workers' vulnerability. For instance, sex workers with outstanding fines for prostitution, and arrest warrants for not paying these fines, are prevented from seeking employment because of the threat of being found and arrested. (19)

        Police also economically abuse sex workers. Police officers often fine sex workers and keep the money for themselves or demand bribes in exchange for not arresting a sex worker. (20) For some sex workers, the cost of a police bribe to evade arrest can equal an entire night's worth of work. (21) In other instances, police have exhibited shameless levels of exploitation: in one reported example, a police officer in Cape Town demanded a sex worker give him money in lieu of arrest; when the sex worker told him she possessed only a meager 10 rand ($1.16 USD), he even demanded that small sum as a bribe. (22) Whilst the government condemns people who make a living through sex work, its own officials and agents are economically benefiting off sex workers' earnings. This form of hypocrisy is also reflected in the fact that police confiscate condoms from sex workers to use as evidence of prostitution. (23) As the government tries to fulfill competing goals--distributing condoms while simultaneously arresting sex workers for possessing them--it wastes resources and confuses messages.

        Police physically and sexually abuse sex workers. Sex workers report that police demand sexual favors in exchange for release from jail or to avoid arrest; they physically assault and rape sex workers; they encourage or condone prisoner sexual abuse of transgender female sex workers assigned to male prison cells; and they transport and abandon sex workers in dangerous and remote locations. (24) Sex workers also report incidents when police have shot them with rubber bullets, pepper sprayed their genitals, (25) thrown them into police vans, (26) and sprayed them with tear gas. (27)

      4. Lack of Access to Justice

        Police often impede sex workers' access to justice when they are the victims of violent crimes. Because of the continual police harassment they face, sex workers are reluctant to report cases of rape committed against them for fear of additional ill treatment. (28) Even when sex workers do report rape, physical assaults, robbery, or other crimes committed against them, the police do not take them seriously. As one sex worker noted, "If we go to the police to report abuse, we're made fun of, we're told 'you deserve it.' They chase you away." (99) Police may even harass sex workers who do report abuse, especially when the perpetrator is a police officer. One sex worker brought a case against a police officer who had physically abused her, only to have the officer arrest her weekly in retaliation. (30)

        Due to criminalization, prosecutors also rarely take complaints of abuse from sex workers seriously. Sex workers are often afraid to report crimes against them out of fear that they themselves will be prosecuted for breaking anti-prostitution laws. (31) One transgender sex worker reported her sexual assault to a prosecutor, only to have the prosecutor suggest she downgrade the rape charge to robbery. When she refused, the prosecutor told her that he would have her arrested for prostitution if she did not stop bothering him. (32)

      5. Lack of Access to Health Services

        Criminalization impedes successful HIV public health intervention practices. (33) Sex workers, their clients, and family members make up 19.8% of new HIV infections in South Africa. (34) Sex workers face an increased risk of HIV and STI infections because criminalization fuels stigma against sex workers in health services and fosters police abuse of sex workers. It also dissuades sex worker involvement in the development of health policy decisions that affect them.

        Criminalization stigmatizes sex workers as criminals, which negatively affects how health workers view them. This leads to discrimination in health care settings that obstructs sex workers' access to services and information. As one sex worker noted, "It's not easy for sex workers to go to health clinics because of the way we're treated. It's hard for us to even tell health staff we're sex workers because of the way they react. We have to lie about ourselves and our stories just to be treated better." (35) Health professionals' often negative and disapproving attitudes...

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