It is with great interest that we read the new article Mail & Guardians (“Human rights group rejects sex-trafficking bill”, January 20, 2022, also published online.)
The debate about sex work – or as some still call it, prostitution – is as old as humanity.
Liberal and radical feminists have a well-documented debate about the treatment of sex workers. The debate ebbs and flows between regulatory frameworks and conceptual arguments about the right to choose and self-determine.
Many other crimes are mentioned in the same argument, along with sex work, for example organized crime, police corruption, child sex work and human trafficking. These crimes have a devastating effect on society. It stands to reason that the blanket criminalization of this type of work drives this type of work underground, hiding it and thus creating a fertile environment for this crime to germinate in our society.
The Department of Justice and Constitutional Development recently published the Criminal Law Amendment (Sexual Offenses and Related Matters) Bill for public comment. The bill seeks to decriminalize sex work as well as erase the criminal records of people who have been convicted of sex work in the past.
At M&G The article claims that the bill will “give little to no relief” for this type of worker. We, on the other hand, believe that it will.
Currently, sex work is criminalized by two laws, the Sexual Offenses Act, 1957 (Act No. 23 of 1957), formerly known as the Immorality Act, and the Criminal (Sexual Offenses and Related Matters) Act. Amendment of Law 32, 2007. (Law No. 32 of 2007).
The current legislative framework governing sex is also divided, as the Sexual Offenses Act, 1957, has been partially repealed, with the remaining section on sex work awaiting review.
Decriminalization or non-criminalization has the effect of repealing all laws against sex work and removing provisions in our laws that criminalize sex work. For us, this is a necessary intervention because it will allow us to reach a point where we can distinguish between voluntary sex work, where sex workers choose to be sex workers, rather than involuntary sex work, which is forced sex work or sexual exploitation or trafficking.
The ongoing criminalization of sex work means that sex workers – the vast majority of whom are women or transgender people – are extremely vulnerable. They face human rights violations on a daily basis.
There is no doubt that the ongoing criminalization of sex work has fueled gender-based violence. The ANC-led government has put several initiatives on the table as part of efforts to eradicate gender-based violence. This bill is no exception.
A report entitled Equal Rights, Human Rights — Protecting the rights of sex workers: Evidence on human rights violations, 2022 was released in December last year by several regional institutions. It clearly states that sex workers deserve the same protection of human rights under the law as society as a whole.
However, studies have shown that sex workers are constantly subjected to human rights violations. The continued criminalization of sex work leads to gender-based violence and femicide because it leaves sex workers unprotected by the law, unable to exercise their rights as citizens and open to abuse in general.
For this reason, the ANC, at 54Th the resolution of the national conference, stating that “the call to decriminalize sex work must be subject to high-level discussions and engagement with various relevant stakeholders and continue to involve the community in this to determine community norms. Sex workers must be protected. This was announced in 55 ANCTh draft conference resolution.
We believe that decriminalization will reduce human rights violations against sex workers, provide better access to health and reproductive health services and also mean compliance with health and safety and labor regulations. It will make it easier for law enforcement to investigate and prevent human trafficking.
The bill does not regulate sex trafficking. It follows a two-step approach, which does not decriminalize and regulate the industry together. It is only about decriminalization, with regulation to follow at a later stage. It is important to note that existing laws prohibiting the sale and trafficking of children for sexual purposes remain in force.
In response to those who say that brothels will now suddenly appear in all suburbs, this is not the case because the municipal regulations will remain in place and will still make requests in public places or impossible, for example, prohibiting the sale of sex in specific area.
Sex workers are people. They have the same human rights as everyone else. We must move from a society that preserves the body and sexuality to a society that affirms human rights for all.
— This article has been edited for brevity.
Moropene Ramokgopa is the second deputy secretary general of the ANC and the national coordinator of the ANC Women’s League task team.