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Decriminalisation of Sex Work

Decriminalisation of Sex Work. Presenter: Keketso Maema Date: 22 October 2018. Overview. Constitutional Mandate Contextual Background Summary of CGE’s position Findings and Recommendations of specific investigation 2 Sex Workers / SAPS (WC)

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Decriminalisation of Sex Work

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  1. Decriminalisation of Sex Work Presenter: Keketso Maema Date: 22 October 2018

  2. Overview Constitutional Mandate Contextual Background Summary of CGE’s position Findings and Recommendations of specific investigation 2 Sex Workers / SAPS (WC) Investigative Hearing: National Commissioner of South African Police Services 5. Conclusion

  3. 1. Constitutional Mandate The CGE is established in terms of section 187 of the South African Constitution:- Section 187 (1) The Commission for Gender Equality must promote respect for gender equality and the protection, development and attainment of gender equality. (2) The Commission for Gender Equality has the power, power to monitor, investigate, research, educate, lobby, advise and report on issues concerning gender equality. (3) The Commission for Gender Equality has the additional powers and functions prescribed by national legislation i.e. power to subpoena, impose sanctions and has the power of search and seizure. The CGE’s enabling Act provides further content to its powers and functions.

  4. 2. Contextual Background S v Jordan 2002 (2) SACR 499 (CC) – CGE as amicus curiae . This Constitutional Court judgment focused on the constitutionality of provisions of the Sexual Offences Act 23 of 1957 (hereinafter the Sexual Offences Act) which criminalise sex work and the keeping of brothels. Ellen Jordan, a brothel owner together with two of her employees, was arrested for contravening the Sexual Offences Act. The accused argued that the relevant sections of the Sexual Offences Act were unconstitutional in an open and democratic state where citizens have rights to pursue an occupation of their own choosing. The High Court concluded that the section criminalising sex work was unconstitutional but held that the sections in relation to brothel-keeping were not. The declaration of invalidity against the sex work provision was sent to the Constitutional Court for confirmation and the accused appealed the High Court’s refusal to set aside the brothel provisions.

  5. 2. Continued .. S v Jordan 2002 (2) SACR 499 (CC). The majority judgment stated that the Sexual Offences Act pursues an important and legitimate constitutional purpose: to outlaw commercial sex. On the issue of gender discrimination argued by the CGE, the court disregarded the factual context of sex work and simplistically stated that the provisions of the Sexual Offences Act were gender-neutral. The judgment did not even venture into the disproportionate nature of the criminalisation, that of (unfairly) striking the provider of sex work and letting the procurer off.

  6. 2. Continued… In 2013, the CGE launched its official position paper calling for the decriminalisation of sex work in 2013. On the 27th of October 2017, the CGE placed formal submission before Parliament on sex work and the need for legal reform. Moreover, the CGE participated and presented at the Summit Completion of an investigation into a complaint lodged on the part of two sex workers regarding allegations of human right violations by the South Africa African Police Services (Western Cape). This further culminated in the subpoenaing of the National Commissioner of the South African Police Services on the failure and/or neglect to implement the CGE’s recommendation(s).

  7. 3. CGE’s Position 3.1 The CGE’s Position 3.1.1 The CGE position is that “adult prostitution” which we refer to as sex work” should not be treated as criminal activity. This means that no statute should make sex work and related conduct such as providing premises to allow sex workers an opportunity to conduct their work as criminal. 3.1.2 The CGE Position Paper (2013) provides a comprehensive explanation for its recommendation on decriminalisation of sex work. The position is based on a Human rights Approach which is in agreement with International Law.

  8. 3. Continued…. Human Rights Characteristics

  9. 3. Continued…. Scope of States Human Rights Obligations

  10. 3. Continued… The salient for CGE position is as follows (will be limited to avoid overlap with other presenters):- 3.1.2.1 International law and the South African Constitution provides legal basis for the decriminalisation stance. This was somewhat acknowledged by the South African Law Reform Commission in the Discussion Paper of 2009 :- “the current legal position of prostitution is in need of comprehensive review. It is clear that South Africa’s international obligations to realise various rights such as dignity, security of the person, equality and equal access to the law and access to health care, as well as to provide effective remedies for violations of rights, must inform the decisions of the legislature”.

  11. 3. Continued… Section 39 of the Constitution mandates a court, tribunal or forum when interpreting the Bill of Rights to consider international law. Amnesty International Policy on State Obligations to Respect, Protect and Fulfil the Human Rights of Sex Workers 2016calls “for the decriminalization of all aspects of adult consensual sex work” International Covenant on Civil and Political Rights (ICCPR) 1966 Article 2.3 of ICCPR provides that “every person has the right to an effective remedy for violations of rights to freedoms, notwithstanding that the violation has been committed by persons acting in an official capacity”. Article 26 of ICCPR states that “all persons have the right to equality before the law and equal protection of the law”. .

  12. 3. Continued… Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) General recommendation 19 of CEDAW states that “prostitutes are especially vulnerable to violence because of their status, which may be unlawful, tends to marginalise them. They need the equal protection of laws against rape and other forms of violence”. The report of the United Nations High Commissioner for Human rights has made the following recommendation, “reform and monitor all laws that impede effective HIV responses, including removing punitive criminal laws used repressively against sex workers”.

  13. 3. Continued… Vienna Declaration 1993 and South African National Action Plan for the Promotion and Protection of Human Rights. Article 8 highlights the importance of working towards the elimination of violence against women in public and private life, the elimination of all forms of sexual harassment, exploitation and trafficking in women and the elimination of gender bias in the administration of justice .   The Beijing Platform for Action (BPA) The BPA requires governments, international communities and civil society, including non-governmental organisations and the private sector to take strategic action to address twelve critical areas of concern. These areas include but not limited to violence against women; the burden of poverty on women; and inequality between men and women in the sharing of power and decision making at all levels.

  14. 3. Continued… Domestic Law Section 9 of the Constitution provides that “everyone is equal before the law and has the right to equal protection and benefit of the law”. Further Section 9(3) provides that “the state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth” Section 10 of the Constitution provides that “everyone has inherent dignity and the right to have their dignity respected and protected”. Section 12 provides the right to freedom and security of the person,

  15. 3. Continued… Section 35 of the Constitution also provides protection for the rights of arrested, detained and accused persons Despite these Constitutional imperatives, sex workers are still abused and harassed by police officers because South African law criminalises sex work in that it is accepted by our law that both the sex worker and the client commit an offence, though it is trite that it is difficult to prosecute the buyers and sellers as the law contemplates. The injustices, violence and unfair discrimination faced on a daily basis can be listed as follows:-

  16. 3. Continued… Unlawful arrests of sex workers. Physical violence perpetrated on them by clients / SAPS members. Theft of their earnings and valuables by SAPS members. Stigmatisation that prevents them from seeking protection from law enforcement agencies when their rights are infringed. Trafficking of women and children. Poverty and unemployment fuels sex work. These conditions are prevalent in South Africa which creates a fertile environment for sex work. Criminalisation seeks to eliminate sex work by those opposed to it on moral, religious or sexist grounds.

  17. 4. Investigative report The Women’s Legal Centre (WLC) lodged a complaint with the Commission on behalf of the Sex Worker Education and Advocacy Taskforce (SWEAT) regarding the dire need for the decriminalisation of sex work and in turn the release of the report by the SALRC. A segment of the complaint concerned specific allegations on gross violation of human rights on the part of two sex workers against SAPS. The CGE conducted an in-depth investigation which included sourcing information from both parties to the complaint. The CGE found that that South African Police Services are utilising municipal by-laws to unlawfully arrest and detain sex workers.

  18. 4. Continued… In the current antagonist legal framework, the CGE is limited in its ambit to provide solution to the current violation of sex workers rights. Albeit, CGE recommended the following:- SAPS convene sex work sensitisation workshops with the assistance from NGO’s to train its Station Commanders on the rights of sex workers and to refrain from human rights violations. 2. The National Commissioner of SAPS to instruct all members to immediately cease in arresting or following outreach workers for carrying out their work and to cease the harassment of outreach workers. This also extends to the confiscation of condoms from sex workers.

  19. 4. Continued… The Office of the National Commissioner of the SAPS failed and/or neglected to correspond with the CGE as to the implementation of the recommendations. Accordingly, the National Commissioner was subpoenaed and appeared before the CGE on the 25th of September 2018 to account. The following was cited /agreed upon under oath:- The Standard Operating Procedure (SOP) will be finalised on the 15th of October 2018. The SOP will contain the required directive for the members to cease in confiscating condoms from Sex Workers and / or outreach officers.

  20. 4. Continued… The roll out of sensitisation workshops shall be provided to the CGE , including the training manuals. The CGE will be permitted to attend the training sessions. The statistics regarding the prosecution and conviction of Sex Workers for the last three financial years will be provided to the CGE by the 15th of October 2018. SAPS has provided the CGE the roll out plan for the sensitisation workshops which will also be attended by the CGE on a provincial level (through out the 9 provinces) The CGE has noted with concern the lack of compliance to the agreed timeframes and has placed demand on the National Commissioner to comply by close of business on the 19th of October 2018.

  21. 5. Conclusion Criminalisation of sex work is contrary to international law and unfairly infringes upon the fundamental rights enshrined in the Bill of Rights. The existing legal framework which makes all aspects of sex work unlawful contributes to the Gender Based Violence perpetrated on sex workers and the health care/social risks that they create. There is sufficient information to support the fact that sex workers face considerable violence and abuse. This is not only unlawful but also unacceptable. Therefore, the most appropriate approach would be for the decriminalisation of sex work as the country does not have the resources or the will to regulate sex work effectively.

  22. Thank You HAVE A GENDER RELATED COMPLAINT ???? REPORT IT TO 0800 007 709 TwitterHandle @CGEinfoFacebook: Gender Commission of South Africa

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