The Commission for Gender Equality (CGE) recently embarked on an investigation into the legislative response to sex work, and concluded that the current legal regime that criminalises sex work has failed sex workers and perpetuated substantive abuse of their constitutional rights.
The CGE’s position and response is informed by Constitutional and legal analysis, comparative research into best practice internationally in response to sex work, and consultation with affected stakeholders. The CGE believes that the correct approach is to regard sex work as ordinary work, and allow the industry to be governed by existing labour and business laws intended to prevent unsafe, exploitative and unfair business practices. This of course excludes abusive practices such as underage and coerced sex work, which should remain criminal offences and should be diligently investigated and prosecuted.
Against the backdrop of our constitutional, national and international legal commitments, and conclusive findings from countries such as New Zealand and certain states in Australia where the decriminalisation of sex work has yielded positive results in terms of ensuring the protection of rights of sex workers, minimising abuse, and rebutting assumptions of likely increases in sex work and human trafficking, the CGE is of the view that sufficient evidence exists to support the decriminalisation of sex work in South Africa.
Sections 10, 12 and 22 of the South African Constitution state that everyone has inherent dignity and the right to have their dignity respected; the right to bodily and psychological integrity, including the right to security in and control over their body; and the right to choose their trade, occupation or profession freely, noting that the practice of a trade, occupation or profession may be regulated by law.
The CGE is of the firm view that sex workers in South Africa cannot be denied these rights, regardless of any moral or religious response to the practice of sex work in our society. Our current legislative response, and its implementation and documented abuse thereof at the hands of police officers, constitute a clear violation of these rights. A decriminalisation response will result in numerous policy implications; both to ensure the extension of labour legislated rights to sex workers, and to shift the focus of law enforcement policy to ensuring the safety, security and protection of sex workers.
In shifting policing responses and resources from the harassment and prosecution of sex workers towards the protection, respect and enforcement of the rights of sex workers, policy makers would need to allocate resources for training and capacity building within local law enforcement agencies, to achieve the necessary shift in mindset, and ensure greater awareness and protection of the rights and safety of sex workers.
It is also critical for government in partnership with the CGE and stakeholders in this sector to initiate broad public awareness campaigns to educate and sensitise society in general about the necessary sex work law reforms and associated policy changes. This is crucial to respond to and ultimately transform the widespread hostile and conservative social attitudes towards sex work and sex workers.
The CGE will be engaging with relevant state and civil society stakeholders to campaign for necessary legislative reform, challenge instances of abuse and violation of the rights of sex workers, and include this issue in its public education interventions to advance gender equality.
Enquiries:
Javu Baloyi
Cell: 083 579 3306
