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Jillian Gardner
Presently a range of both national and local laws criminalises sex work 1 and
related activities such as brothel-keeping in South Africa. The primary piece of
legislation criminalising sex work is the Sexual Offences Act (No. 23 of 1957).
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Despite the industry’s criminal status, sex work has proliferated in South Africa
over the last decade. Street-based sex workers are visible on major roads of every
South African city, mainstream magazines feature articles on the sex industry, and
newspapers generate income through advertising the services of sex workers.2
Sex work raises complex moral and social questions – is it a form of slavery, a
product of male domination over women or a valid aspect of human sexuality? This
chapter does not seek to answer those questions. Instead it considers the attitudes
and responses towards sex work in South Africa. While it is acknowledged that
issues of child abuse are worthy of extensive consideration, this chapter focuses
on adults involved in the sex work industry. Men, women and transgender persons
are involved in the industry and in most instances the provider is a woman and the
buyer a man.3 Although much of what is discussed here is also relevant to male sex
workers, the main focus is on females.
Historically, legal measures against sex work were as a result of public health
considerations. The South African Constitution contains a Bill of Rights which
guarantees all citizens fundamental human rights. Over the years, sex work has
been subject to much debate and dominant attitudes and responses have arguably
been discriminatory. The South African Law Commission (salc)4 is currently
investigating the question of law reform in South Africa. In 2002, they released
an issue paper on adult sex work. No recommendations for legislative change were
made in the document and in the interim period the constitutional validity of the
criminalisation of sex work was challenged in the Constitutional Court.
329
Main debates around sex work
The reasons generally advanced for criminalising sex work include the following:
(i) because it is immoral; (ii) to prevent crime; (iii) to prevent public nuisances;
(iv) to prevent sexually transmitted infections (stis); and (v) because it is conducive
to violent abuse of sex workers. The main debates on the subject relate to the
definition and nature of sex work as well as the reasons for doing sex work.
A typical argument against legal recognition of sex work is that it weakens
the moral fabric of society and threatens the foundation of society – the family unit.
The argument that sex work is immoral is linked to the early Christian Church
view that sex should take place only within the ambit of a lawful marriage, and
then only for purposes of procreation. It is also based on the belief that it is wrong
to engage one’s body purely for commercial purposes by providing another with
sexual gratification. It has also been argued that sex work should be abolished
on the grounds that it contributes to the spread of stis, fosters crime and leads to
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neighbourhood decay. Public nuisance resulting from sex work is also often cited as
a reason for the criminalisation of sex work and police often cite complaints from
residents as the main motivating factor for arresting street-based sex workers. Sex
work is also seen as undesirable because of its association with organised crime
and drug trafficking. Linked to the debate on how sex work should be defined is the
question of whether sex work is a form of work or exploitation.
Proponents of the ‘sex work as work’ perspective typically argue that sex
workers should have the same rights as other (legal) workers, even if the choice to
do sex work may be one exercised within a limited range of options. On the other
end of the spectrum is the view that sees sex work as inherently exploitative, with
domination and violence as inherent features of the industry. In this view, sex work
per se constitutes violence even though the worker consents to the sexual act and
gets paid for it.
South Africa has a long history of sex work. Prior to 1866, apart from some
legislation to control disorderly conduct in public, the authorities did little to
interfere with the practice of sex work, and there appeared to be no public outcries
against sex work. Sex work was seen as inevitable; a necessary evil to satisfy male
desire. Pressure for the legislature to take action came from the British. In 1866,
the colonisers threatened to withdraw troops from Cape Town after more than
13 per cent of their troops were hospitalised for stis. In 1868 the Cape government
people who had stis was regulated by different legislation in each province. The
Union of South Africa developed national legislation through the enactment of the
first Union Public Health Act (No. 36) in 1919 which, among other things, repealed
the Contagious Diseases Act and sought to provide accessible medical services and
education for all citizens. In terms of the Act, anyone who suffered from or who
suspected that they may be suffering from an sti was required to consult with a
doctor and undergo treatment until they were no longer infectious. Failure to do so
was declared a crime.
In 1957, the Public Health Act was repealed by the Immorality Act (No. 23).
One of the main amendments to the Immorality Act was the proscription of the
practice of sex work as a crime through the inclusion of section 20(1)(aA) in 1988.
Prior to this, sex work per se was not criminalised, although related activities such
as brothel-keeping were. The amended version of the Act, currently still in effect
but now called the Sexual Offences Act (No. 23 of 1957), continues to criminalise
numerous aspects of the sex work industry, including living off the proceeds of sex
work, brothel-keeping and procurement. Section 20(1)(aA) of the Act provides that
‘any person who has unlawful carnal intercourse or commits an act of indecency
with any other person for reward, commits an offence’. In law, a sex worker can
therefore be defined as a person who has unlawful carnal intercourse with another
for reward. The expression ‘unlawful carnal intercourse’ as used in the Act means
‘carnal intercourse otherwise than between husband and wife’. The Act does not
specify exactly what is meant by ‘reward’ for purposes of the offence, but it has
generally been understood to refer to financial reward.
With the advent of democracy in South Africa, the Sex Worker Education and
Advocacy Taskforce (sweat) was established in response to the need to address
hiv/aids issues and human rights abuses experienced by individuals working
as sex workers. At the time it was reported that the national ministers of safety
and security and health supported the decriminalisation of sex work and a South
African Police Services spokesperson was quoted as saying that
the police services have begun to prioritise. We have come to realise that
arresting prostitutes, for example, does not solve the problem. It seems far
more important for us to concentrate on the enormous drug problem. So we
act only on complaint. If someone is minding their own business and not
disturbing anyone, we’ll let them be. (Mail & Guardian 23 December 19945)
A year later, the Centre for Applied Legal Studies at the University of the
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on adult sex work. The paper did not make any specific recommendations for how
sex work should be regulated. Rather, it sought to provide insight into the three
broad legal models for regulating sex work. Following the release of the issue paper,
sweat embarked on a series of workshops with sex workers to elicit and ensure
their input into the law reform process. At the first national meeting of sex workers,
nine independent submissions from sex worker groups around South Africa were
generated and forwarded to the salc. An excerpt from these submissions includes:
We feel that aids is a killing disease. It is the responsibility of individuals to
protect themselves [from hiv infection]…We don’t think that there should
be laws to control sex workers from spreading hiv/aids, because they end
up suppressing us…Health facilities should be accessible, and health care
providers should be educated to provide a service rather than to intimidate
us…Fees for sexual services should be standardised…Prostitution should
be decriminalised because it is not a crime…All regulations implemented
should have [as] their guiding principle the Bill of Human Rights.
(sweat 2002)
The owner and receptionist appealed to the Constitutional Court, which also had to
confirm the finding of the high court, namely that section 20(1)(aA) amounted to
unfair discrimination. The Constitutional Court applied the Interim Constitution
which was in force at the time of the arrest. In confirming the original convictions,
the court unanimously held sections 2 and 3 prohibiting brothel-keeping to be
constitutional. The court was, however, divided on the issue of the constitutional
validity of section 20(1)(aA). Of the 11 judges who heard the case, six found that the
section did not constitute unfair discrimination against women, because it sought
to criminalise the actions of both male and female sex workers, and because the
client was already liable for prosecution under the common law or the provisions
of a discredited apartheid statute, the Riotous Assemblies Act (No. 17 of 1956).17
The majority also stated that the sex worker was engaged in the business of
commercial sex and that one of the ways of curbing commercial sex was to strike at
the merchant by means of criminal sanction, and that the differentiation between
dealer and customer was a common distinction that was made in a number of
statutes and ‘if the public sees the recipient of the reward as being “more to blame”
than the client and conviction carries a greater stigma on the “prostitute” for
that reason, that is a social attitude and not the result of the law’.18 The minority
judgment, however, acknowledged that section 20(1)(aA) differentiated between
sex workers and clients, maintaining that ‘the differential impact between sex
worker and client is…directly linked to a pattern of gender disadvantage which our
Constitution is committed to eradicating’.19
The challenge based on equality thus failed and the court further held that
section 20(1)(aA) did not infringe the rights of sex workers to dignity and economic
The current definition of sex work is problematic because many individuals who sell
sex do not see themselves as sex workers in the legal sense and numerous individuals
who fall within the scope of the law are excluded from penal sanctions.23 These
include individuals who engage in outside-of-marriage sex, as well as individuals who
engage in sexual relations with others in exchange for benefits such as food, clothing,
accommodation and any other recompense. Outside the realm of the law are also
those individuals who engage in extramarital affairs. Adultery and homosexuality,
for example, are no longer considered crimes in South Africa, and it is common
for individuals to engage in sexual relations outside of marriage. It is therefore
reasonable to conclude that sexual morality is selectively enforced in South Africa.
The primary motivating factor influencing people’s decisions to do sex work
in South Africa is related to economic considerations. In the absence of meaningful
income-generating opportunities, sex work offers people the opportunity to ‘make
a living’. The officially illegal status in South Africa also means that the sex work
industry remains part of South Africa’s growing black economy. The jobs created in
this economy are therefore not counted as jobs.
In all industries, conditions are most dangerous where workers are relatively
powerless and there is no effective regulation or control over employers. There are
currently no standards that govern the sex work industry and brothel-based sex
workers often complain about unfair working conditions and labour practices. Since
sex work is viewed as a crime and not a legitimate form of work, sex workers are not
afforded the protection and benefits offered to other employees.24 In 2000 sweat
and the wlc supported a group of sex workers whose human rights were infringed
upon by the owner of the agency where they worked. A court order was granted
obtaining an interdict against, inter alia, three police officials who were assaulting
and harassing them. The court order sought to restrain the officials from assaulting,
harassing, threatening or molesting them. The matter was also referred to the
Independent Complaints Directorate (icd),26 which recommended that the officials
face internal disciplinary charges as well as criminal charges, including rape,
assault, crimen injuria and corruption.27 This is possibly why Leggett cautions that
‘vice enforcement is a very dangerous business. If you want to keep drugs and
prostitution illegal, you have to watch the people in charge of enforcement very
carefully’ (2001: 155).
It is currently very difficult to achieve successful prosecution under the
Sexual Offences Act. The globalisation of the sex industry and modern technologies
such as the internet and cellular phones have made it harder to police the industry.
Current policing of sex work drains away scarce resources from more effective hiv
prevention, treatment and care programmes. Technikon South Africa’s Institute for
Human Rights and Criminal Studies claims that
◆ at a minimum, it costs the police close to R14 million a year to prosecute
sex workers;
◆ police action against sex workers is inconsistent;
◆ most cases against sex workers are dropped after coming to court, wasting
valuable court time; and
◆ sex work is more heavily policed than serious violent crime.28
Scrapping the laws against sex work will free up police resources which could be
better spent fighting serious violent crime. A change in the laws criminalising sex
sti has strongly influenced perceptions of and responses to aids. Strategic health
interventions around hiv have labelled sex workers a high-risk or core group – a
primary bridge population through which hiv is spread to the general population.
In this view it seems that aids is seen to be caused not by a virus but by the actions
of certain groups of people. While it is acknowledged that interventions aimed at
changing behaviour have a great role to play in preventing the transmission of hiv,
and that sex workers may have relatively more sexual encounters than individuals
not doing sex work, it is also true that condoms, if used properly and consistently,
provide the best protection against infection and that individuals do not always
control their exposure to risk.29
Given that sex workers are mostly women, they in fact are at increased risk
of getting infected with hiv compared to their male sexual partners. There are no
reliable data about the prevalence of hiv among sex workers in South Africa and
even where data are available they are often not compared to rates of infection in the
broader community where sex workers live and/or work. This has much to do with
the hidden nature of the industry and difficulties related to the definition of sex
work. Rather than talk of high-risk and low-risk groups, we should be talking about
high- and lower-risk sexual acts. The exchange of sex for money does not spread
hiv; unprotected sex with an infected person is what leads to infection. Many of the
women who sell sex also have personal partners, and time and time again research
has shown that while sex workers may use condoms with the clients, this is not
the case with their personal partners, who generally refuse to use condoms. Why
then is it often assumed that hiv-positive sex workers got infected in the course of
their work?
Sex work poses difficult questions. On its own it is hardly the most pressing form of
‘crime’ confronting South Africa. The authorities may be correct in pointing to its
extensions into child prostitution and drug dealing, which constitute a clear reason
for the need for vigilant control. But is the criminal law the best means to deal with
sex work? Over the past years, sex work has received considerable attention and
the topic remains an emotive one, with opinions on the issue generally polarised.
Those who advocate for law reform, and in particular the decriminalisation of sex
work, do not necessarily do so because they think it’s a wonderful institution, nor
because they believe in a ‘free-for-all’. The individuals and organisations that have
direct experience working with industry role-players are in a good position to testify
to the effects of criminalisation on the lives of individuals working as sex workers.
Researchers (Leggett 2001; Pauw & Brener 1997a, 1997b) and activists (Alexander
2001; De Villiers 2001) have also noted the negative impact of criminalisation on the
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Notes
1 The term ‘sex work’ is used rather than ‘prostitution’ because it is the term preferred by
sex workers, but also because the label ‘prostitute’ has negative connotations.
2 I am grateful for suggestions, comments and contributions from Clayton Gardner
(ex-sweat outreach worker), Myrtle Adams (ex-sweat volunteer) and Anita Kleinsmidt.
3 This arrangement is not exclusive as homosexual and male sex workers also exist.
4 Salc is a statutory advisory body whose aim is the renewal and improvement of the law of
South Africa on a continuous basis.
References
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of South Africa. Research for Sex Work 4: 20–21
Free download from www.hsrcpress.co.za
De Villiers C (2001) Labour and the sex work industry. Presentation at the 14th Annual Labour
Law Conference, Durban. Available at www.wlce.co.za/advocacy/presentation4.php.
Accessed on 25 March 2004
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