In South Africa, the criminalization of sex work has become a hotly debated topic. The country’s laws are among the strictest in Africa: As it currently stands, all aspects of prostitution are criminalized. However, many activists and health workers have been arguing that sex workers would be safer and healthier if they were able to work legally.
Advocates also argue that decriminalization would help the government achieve its five-year plan to provide better HIV prevention and care to sex workers.
The SALRC review, which was initiated back in 2002, had been viewed by many as a first step toward decriminalization. However, the contents of the report – which was finalized in 2015, but only released this year – came as a shock.
It recommends that consensual adult sex work continue to be fully criminalized or, as a second choice, that partial criminalization be introduced. Partial criminalization, also known as the “Nordic model,” would mean that clients could still face arrest and prosecution, but not sex workers.
The report, which contains draft amendment bills for total or partial criminalization, has been presented to the minister of justice and correctional services for consideration.
The commission explained that they are “of the view that exploitation, particularly of women in prostitution, seems inherent in prostitution and depends on the external factors of gender violence, inequality and poverty and is not caused by the legislative framework in which it finds itself.”
They concluded: “Changing the legislative framework could create an extremely dangerous cultural shift juxtaposed against the high numbers of sexual crimes already committed against women,” and that “women would be considered even more expendable than at present.”
However, many activists and health workers disagree with these findings.
Lucy O’Connell, a sexual and reproductive health nurse with Medecins Sans Frontieres (MSF) in southern Africa who has recently argued in favor of decriminalization, expressed her disappointment. She pointed out it came “after 20 years of dialogue between multiple stakeholders, yet the outcome is that almost nothing should change in terms of the legal status of sex workers.”
“Instead of reflecting a concern for life and equity above all else, the SALRC recommendations – which have a strongly moralistic flavor – will further entrench the stigma around sex work, and imperil the health of sex workers and their clients by preventing many from seeking care and protection,” she said.
O’Connell added that the recommendations will adversely affect the government’s 2017-22 National Strategic Plan (NSP) for HIV, TB and STIs, which aims to provide the country’s sex workers with improved HIV prevention and care.
“The commission has ignored the medical reality. Research published in the Lancet shows that decriminalizing sex work could prevent between 33 and 46 percent of infections in the next decade,” O’Connell said.
Marion Stevens, the coordinator for the Women in Sexual and Reproductive Rights and Health organization and a research associate for the Gender Institute at University of Cape Town, also criticized the report.
“The process was compromised, as the content is not evidence-informed nor informed by organized sex workers in South Africa,” she said. “The commission clearly lacks capacity, having taken so long to produce a very poor report that has been rejected by a range of stakeholders – including parliamentary groups, NGOs, trade unions, political groupings and sex workers.”
The Sex Worker Education and Advocacy Taskforce (SWEAT), a sex worker advocacy group that has been lobbying for decriminalization, also condemned the report.
“The report has outdated submissions and research as it has taken more than 10 years for SALRC to release the recommendations,” said Nosipho Vidima, SWEAT’s human rights officer.
She added that when the members of the SALRC initiated the review, SWEAT had hoped that the process would result in the introduction of “legislation that was human rights-based and adhered to the rights of the constitution.”
“However, this has not been the case with the released suggestions,” said Vidima. “The recommendations refuse the access to basic rights, like the freedom of choice of trade,” she continued.
Vidima further questioned the motives behind the release of the recommendations, suggesting that it may be a public relations stunt in response to the growing calls for action in the face of reports of increased intimate femicide – the killing of women by intimate partners.
“Our Department of Justice seems to have tried to hide their failure of protecting women […] by releasing a report that was not thoroughly worked on – they somehow did not see that they are adding fuel to the fire with these recommendations,” she said.