What if sex work were legal?

Governments across the world grapple with the question of how best to deal with sex work: should it be decriminalised, or should existing legislation be enforced to better control the industry?



The issues concern the health and safety of the women and men on the game, how best to eliminate the criminal elements from the business, and the moral dimension of the trade.



In South Africa, prostitution has remained illegal under the Sexual Offences Act of 1954, which has its roots in the Immorality Act of the early days of apartheid, which banned mixed-race sexual intercourse.



In 1994, with the country's first democratic elections, decriminalisation seemed to be in the offing, pushed by a number of lobby groups including the Sex Worker Education and Advocacy Task Force (SWEAT). But amendments to the Sexual Offences Act in 2006 left the sections on sex work intact.



Lisa Vetten of the Tshwaranang legal advice centre in Johannesburg, which works with sex workers, says the issue is a "political hot potato" in a country that remains conservative in many ways, despite its internationally lauded liberal constitution.



"Religious conservatism is a fabulous uniter in South Africa, so you get a broad section of society opposed to decriminalising prostitution on moralistic and feminist grounds," she commented.



"Prostitution is seen as morally wrong and exploitative of the girls involved, who are poor, get paid badly for what they do, and have often been sexually exploited at a young age. It is also predominately black girls who are involved, so to decriminalise it is seen by some as a way to exploit racially," she told IRIN.



However, the authors of Selling Sex in Cape Town, the first comprehensive study of prostitution in a South African city, argue that their report shows that criminalisation has created an environment in which sex workers are routinely abused, but rarely deterred.



"We strongly recommend that decriminalisation and regulation of the sex work industry be considered by the South African Law Reform Commission (SALRC), and parliament," said the report by SWEAT and the Institute of Security Studies (ISS), a South Africa-based think-tank.



"Sex workers and their organisations must be engaged to devise a process to move towards decriminalisation, in a way that balances public interest with the interest and needs of sex workers."



Opportunity



Vivienne Lalu, a senior researcher at SWEAT, insists the research proves that a new approach is needed. "You cannot criminalise poverty, and the research carried out in Cape Town shows that most women and men get involved in the sex industry because they can earn between two and four times more money from selling sex than they can from other employment," she said.



"If you want to stop prostitution you have to deal with issues like gender equity, appropriate exit programmes, moral stigma and the like, rather than driving it underground through ineffective laws. But stopping it is unlikely," she commented.



"Instead of acting as a deterrent to involvement in prostitution, criminalising the act has led to high levels of exploitation and abuse of sex workers by police and those who run the brothels they work in," Lalu insisted.

If you want to stop prostitution you have to deal with issues like gender equity, appropriate exit programmes, moral stigma and the like

The researchers, who gathered their data by interviewing almost 1,000 sex workers over two years in Cape Town, South Africa's tourist capital, said their study uncovered "endemic harassment of street-based sex workers by the police".



The report also noted that the attitude of disregard and disrespect towards sex workers hampered the authorities' ability to tackle human trafficking and child abuse, because it created an atmosphere in which the police were not considered trustworthy.



Bad cops



"Few sex workers feel that they can report exploitation or abuse (including rape and trafficking-like practices) to members of the South African Police Services (SAPS)," the report said.



"Even though sex work is criminalised by the Sexual Offences Act, members of SAPS should be aware of the fact that sex workers may themselves be victims of abuse, and may be witnesses to other cases of abuse, including those that involve children."



Nikki, (not her real name), 43, became a street-based prostitute in Cape Town five years ago after becoming addicted to drugs following a personal tragedy. She gets picked up by kerb crawlers when her regular clients are not around.



"Selling my body is like a job to me, and if it were decriminalised it would make it less risky. I have a lot of problems with the police, getting harassed even when I am just on my way to the shops because they know me, and I am an easy target," she told IRIN.



"One time I was picked up and put in a holding cell and five different policemen came to me, one at a time, saying if I had sex with them they would let me go. They also watch me working, and when I have finished a job they come and take my money."



In Cape Town's sex industry, divided into indoor and outdoor workers, 88 percent are women, nine percent are men, and three percent transgender. The average age is 29.



Employee rights



The vast majority work indoors through 'agencies' – a collective term for brothels, clubs and massage parlours that offer sex - where harassment by the police is less likely to occur as long as blatant drug use is not a regular occurrence.



However, many of the girls are abused by their agency employers, who fine them when they are late, offer no sick pay, holiday pay or maternity leave; they regularly have to work long hours and are not allowed to refuse a client.



SWEAT is currently involved in a legal action relating to a sex worker's employment rights, after a ruling by the Commission for Conciliation, Mediation and Arbitration (CCMA) on her case of unfair dismissal.



According to Lalu, the CCMA ruled that the woman had fulfilled all the legal requirements under labour law to be treated as an employee, but she did not have access to those rights as her work is considered illegal.



Advocates of decriminalisation hope to take her case to the constitutional court in the near future. "What decriminalisation would mean is that the labour legislation would apply," said Lalu, so the lives of sex workers "would immediately be made easier".



bc/oa/he