Lee-Anne Germanos says criminalising sex work in SAhas not achieved its objectives
Moral Laws (II): Sex Work – The arguments
ARGUMENTS FOR CRIMINALISATION
The arguments for the sustained criminalisation of the sex trade emanate from a moral stand point and branch out to a belief in inevitable proliferations of other social evils. Sex work is seen as degrading and an infringement on a person’s dignity and bodily integrity. The criminalisation of the trade, therefore, is meant to protect such human rights in an industry that is viewed as inherently exploitative.
This view is substantiated by the fact that, in South Africa, sex workers predominantly come from poor backgrounds with a lack of education and where distinct economic inequalities exist. Globally, it has been found that between 65% and 90% of sex workers were sexually abused as children, and that the trade is always physically, psychologically and sexually harmful to sex workers.
The trade has also been accused of reinforcing patterns of gender inequality in a world where buyers (predominantly men) believe that they are entitled to receive sex from sex workers (predominantly women) whose bodies are in turn commodified. Another reason for outlawing the trade is to guard against the abuse of sex workers at the hands of their handlers and clients – which in itself is telling of the calibre of humans that support the trade. In a society that suffers from obscene levels of gender based violence and a rape culture, all of this cannot be downplayed.
Additionally, criminalisation was meant to curb and prevent extensions of the sex trade, such as the trafficking of people (to keep up with a growing global appetite for sex) and the sexual exploitation of children. Drug trafficking and drug use are also seen to go hand in hand with the trade. Drugs are sometimes used freely. Other times, they are used by traffickers to drug their victims, who may develop a dependency on the drugs. This in turn keeps them beholden to their handlers and their clients. Of course, all of these result in higher rates of HIV/AIDS and STDs in the sex trade.
ARGUMENTS FOR DECRIMINALISATION
Before delving into the detail of the argument opposing criminalisation, it is important to note the distinction between legal regulation and decriminalisation. Legal regulation of the sex trade would render sex work legal but subject to special regulations and laws, which retain control over the sex industry. Decriminalisation would remove criminal sanctions for the buying and selling of sex. In itself, it does not imply any legal regulation. It is this approach – decriminalisation – that organisations promoting sex workers’ rights endorse.
There are two facets to the argument in favour of decriminalisation. The first is an attempt to move away from state intervention and argues that one has the right to self-determination and to do with one’s body as one chooses; that the state should punish crime and not “sin”; that sex work should be treated as work like any other form of employment.
The second facet is the need to remove the harmful effects of the stigma created by the criminalisation of sex work – which effects safety, security, access to justice and health care for sex workers. South African sex workers are at high risk of violent abuse at the hands of pimps, brothel owners, clients and, most disturbingly, the police.
They have limited or no access to justice because of the illegal status of their line of work, and because of the trauma that they experience at the hands of the police – both primary and secondary trauma. The stigma attached to sex work, which is validated by its criminalisation, makes not only the justice system inaccessible, but extends to the health care system as well.
The argument is that decriminalising sex work would eventually result in the dissolution of the stigma, a full enjoyment of rights, an increased sense of safety (and safety itself), the improved health of sex workers (and an incentive to take care of one’s health) and provide sex workers with a degree of control over their person and income earning capacity.
The South African economic context in particular is conducive to poor and/or uneducated women turning to sex work to escape poverty and unemployment. So if there are difficulties creating jobs, would it not be best to afford this form of work (which has been in existence for centuries) the full protection of, instead of prevention by, the law?
A MID-WAY SOLUTION
Both arguments for and against criminalisation have valid points. The reality is that criminalising sex work in South Africa has not achieved its objectives. It has not prevented exploitation, human trafficking or other criminal activity associated with the industry. It has also not done away with the existence of sex workers and sex buyers.
If anything, criminalising the sex trade has created another category of vulnerable persons (predominantly women) who may willingly choose to enter the industry (for financial or other reasons), or who are coerced or forced into it entirely against their will. All sex workers become victims of the justice system at some point, and – in the case of coercion or force – become double victims. The criminalisation of sex work forces underground the very people that it is meant to protect, exacerbated by police behaviour.
In saying that criminalising sex work has failed in its objectives, it is not to say that decriminalising it will resolve all of the problems occasioned by the current system. The truth is that decriminalising sex work has and will be incapable of protecting sex workers from abuse at the hands of their clients while working, because of the intimate nature of the work. Certain types of people who engage sex workers and support the industry will result in the exposure of sex workers to abuse. In a decriminalised system, sex workers would always have recourse to the law after the fact (without fear of arrest themselves), but little can be done through legislation (or a lack thereof) to practically prevent abuse from happening.
It is for the above reasons that, in the previous brief, the sex buyer or client was brought into focus. If the intention of the state is to prevent the exploitation of people by criminalising sex work, then perhaps focus should be shifted away from supply and targeted at demand. It is the demand (an insatiable appetite in the modern world) for easy access to sex that makes the sex industry and its perverse forms, such as human trafficking and child exploitation, such thriving and lucrative businesses.
The Nordic countries appear to have cottoned on to this and have partly criminalised the sex industry by legalising the sale of sex but criminalising the buying of it. In other words, the intention is that clients (predominantly men), and not sex workers (predominantly women), are targeted by law enforcement. This is a midway system which, of course, does not come without its flaws. For sex workers, being in the industry is about earning a living so, in order to ensure a steady flow of income, sex workers in this model go underground to protect their patrons from arrest.
However, the same can be said of any system with any form of regulation on sex work – which includes the Netherlands (where sex work is legally regulated). It should not be forgotten, however, that there is little that the law can do in any event to protect sex workers from abuse by clients, whether they go underground or not. It will take more than laws and punitive measures to prevent violence – in the sex trade.
Much has been said about criminalisation, partial criminalisation, legalisation and decriminalisation, but not much consideration is given to the question of why the sale and purchase of sex is thought of in criminal terms at all (as pointed out in the previous). It has been universally accepted in the past that the state has an imperative to protect its citizens – including from themselves.
Should this position not be revised when it comes to people ‘harming themselves’? Other than the exploitative aspect of the sex trade (which remains unlawful even in a decriminalised system), why is it a crime to do with our bodies as we wish? It is true that it is not employment like any other (because of the personal nature of work), but is the provision against harm for this ‘special’ kind of work the deterrent for its legalisation or decriminalisation? Or is the moral aspect still the underlying (and true key driver) in the South African debate?
Lee-Anne Germanos, Legal Researcher, Helen Suzman Foundation.
Jordan and Others v S  ZACC 22 at para 86.
 South African Law Reform Commission Report, Project 107, Sexual Offences: Adult Prostitution, June 2015 at page xvi.