Sex work and the law in South Africa – hit and miss?

1. Sex work and the law in South Africa – hit and miss? Liesl Gerntholtz Director – Tshwaranang Legal Advocacy Centre

2. Current legal position • Sex work is a statutory offence. • The Sexual Offences Act 23 of 1957 criminalises sex work in terms of section 20(1)(aA) – it states that any person who has unlawful carnal intercourse or commits an act of indecency with any other person for reward, is guilty of an offence. • Range of other laws and by-laws that also impact on sex work.

3. Efforts to decriminalise sex work 1 • 1994 – advent of democracy brought with it a recognition of the need to review the legal approach to sex work / prostitution (debate about terminology – O’Regan J in Jordan judgment declines to choose); • 1994 – SWEAT was formed in Cape Town; DECPRO also formed, but later fell away; • 1995 – the Department of Health requested CALS to investigate options to regulate sex work – produced a draft bill that decriminalised sex work; • 1996 – Gauteng Cabinet Committee on Safety and Security and Quality of Life mandated the Gauteng Ministry of Safety and Security to draft a policy on the regulation of sex work – recommended decriminalisation and document distributed for comment – promising initiative.

4. Efforts to decriminalise sex work 2 • The Committee established a Task Team and in 1997, TT’s final report recommended decriminalisation; • 1997 – support for this position from the ANC during its national conference (resolution taken to remove all legislation that crminalises commercial sex work) and another province, Western Cape; • 1997 – first SA country report to CEDAW, government admitted that current legislation on prostitution may be unconstitutional;

5. Efforts to decriminalise sex work 3 • In 1997, the South African Law Commission began an investigation into sexual offences against children – this investigation inevitably led to a consideration of broader issues relating to sexual offences and the Minister of Justice instructed the Commission to expand the investigation to include sexual crimes against adults; • The SALC decided to produce four discussion papers – the first dealt with substantive law relating to sexual offences against adults and children; the second dealt with process and procedure, the third concentrated on adult prostitution and the final one on pornography. This discussion paper was released for public comment in 2002 • 1998 – Commission on Gender Equality produced a position paper recommending decriminalisation and proposed a process of legal reform.

6. Efforts to decriminalise sex work 4 • 2000 – conference on sex work in Cape Town – consensus that decriminalisation was the best option; • 2001 - second national conference – focused predominantly on health issues, especially HIV and AIDS, but also recommended decriminalisation.

7. Jordan v The State • Judgment handed down by the Constitutional Court – October 2002; • Case related to an incident that occurred in 1996; • High Court found that section 20(1)(aA) was unconstitutional and case was referred to CC for confirmation – based on the equality clause (the section only penalises the sex worker). • Also involved a consideration of the provisions of the Sexual Offences Act that deal with keeping of a brothel – High Court found these did not violate the Constitution.

8. Jordan v The State • Several amicii briefs – CALS, SWEAT, Reproductive Health Research Unit – examined the human rights and health implications of criminalisation. • CALS – unfair discrimination on the basis of sex and gender – disproportionate impact of the legislation on women – became the central issue during argument.

9. Jordan v The State • Majority decision – Ngcobo J supported by 5 other judges, including then JP; • Judgment short to the point of saying almost nothing! • Court found that the section did not discriminate as it applied to both male and female prostitutes – “section is gender-neutral”; • Agreed that the section did “make a distinction” between the sex worker and client, but since the purpose of the legislation was to “outlaw commercial sex”, and the sex worker was more likely to be a “repeat offender”, this was a constitutionally permissible distinction.

10. Jordan v The State • Comments that raised many concerns: • “.. by engaging in commercial sex work, prostitutes knowingly accept the risk of lowering their standing in the eyes of the community, thus undermining their status and becoming vulnerable” • Found that sex workers have a choice and may therefore choose not to engage in sex work.

11. Jordan v The State • Minority judgment by O’Regan and Sach, supported by3 others – more thoughtful: • Found that the section did discriminate against women – sex workers are overwhelmingly female and clients male – indirect discrimination; • Legislation the focuses primarily on the sex worker – directly reinforces a pattern of sexual stereotyping that conflicts with equality; • Also found that the section violated the right to privacy.

12. Why to from here? • Advocacy and lobbying after Jordan stagnated with exception of a few key organizations; • 2006 – SALRC paper on trafficking – equates sex work with trafficking; • 2006 – amendments to the Sexual Offences Act – leaves the provisions on sex work intact.