Sex work decriminalisation debate largely stalled without draft legislation

More than five months after a controversial report recommended South Africa continue to criminalise sex work, there’s been no word about whether the Department of Justice and Constitutional Development will propose any legislation to change the way the country regulates the profession. And without draft legislation, there’s little room for formal public comment from those on all sides of the debate.

In May, the South African Law Reform Commission (SALC) released a report two decades in the making that recommended that the country continue to criminalise sex work. It put forth partial criminalisation, in which the buyers but not sellers of sex are prosecuted, as a secondary option.

The report came just as the country released its latest national HIV plan – the first that did not include a call to decriminalise sex work in almost a decade. Workers and activists protested the call’s removal from the HIV strategy at the July national Aids conference in Durban. Silently bearing placards, protesters flanked the stage as Deputy President Cyril Ramaphosa, who also chairs the national Aids council, addressed the meeting. 

In video footage, Ramaphosa’s security detail can be seen trying to remove demonstrators.

But Ramaphosa later addressed workers and activists, urging them to make their views heard about the commission’s report:

“We are all invited to do is to engage with the report because commentary is going in and I expect a lot of comments from you. The Cabinet wants to hear our people; we want the discussions and debates to rage through our country. We want to listen to our people so that when Cabinet finally takes a decision, it is informed by your views,” Ramaphosa said.

Watch Ramaphosa address protesters at the South African National Aids Conference

But the SALRC report is not, in fact, open for public comment, clarified justice department spokesperson Mthunzi Mhaga in late July, shortly after the decriminalisation of sex work was discussed at a Critical Thinking Forum hosted by the South African National Aids Council (Sanac) and Bhekisisa.

Instead, the fate of the report’s recommendations now lies in the hands of the justice department, explained Deputy Minister of Justice and Constitutional Development John Jefferies at the Sanac and Bhekisisa forum in July.

“We’re not bound to accept [SALRC’s] work. The SALRC has completed its work, and it’s now for the government to decide what approach to take. We have to look at what is best for South Africa given its own conditions.

“We obviously want to hear from the public,” Jeffries told dozens of sex workers, activists, researchers and outreach workers at the event.

The next step in the debate
But more than five months after the SALRC released its report, there has been little movement by the department to propose any legislation regarding potential changes in the regulation sex work that could be opened up for public comment.

Mhaga explained that such proposed changes in law would only happen if deemed necessary by the justice department. A decision he said would likely be accompanied by some consultation.

“The report has been submitted to the legislative drafting division of the Department of Justice and Constitutional Development for consideration and to advise on the need for a change in policy and law. During this process the department will consult with various role-players,” he explained.

“If deemed necessary, a bill that aims to give effect to legislative change will be published for public comment and comments received during the public consultation process will be considered before the bill is finalised for introduction into Parliament.”

How the world regulates sex work
South Africa’s sex worker movement Sisonke and the Sex Workers Education & Advocacy Taskforce are among those that favour decriminalisation. Meanwhile others, like the nongovernmental organisation Embrace Dignity, advocate for partial decriminalisation. 

Confused? We explain how the world legislates sex work and the options that SA could consider:

Full criminalisation
Examples: South Africa, the United States

Both the buyers and sellers of sex could face criminal prosecution. In South Africa, sex work is criminalised by some Acts as well as local by-laws.

Partial criminalisation
Example: Sweden Only the buyers of sex are criminalised

Decriminalisation
Example: New Zealand

Neither buyers or sellers of sex face censure under the law. Under this model, workers can legally work as contractors or employees and employers would have to comply with employment and occupational health and safety legislation. Workers would also be able to unionise.

Legalisation
Examples: Mali, Senegal, the Netherlands

The buying and selling of sex are legal in certain areas and subject to regulation. Legalisation is not the same thing as decriminalisation, argues Sweat. It points out that under the legalisation model, the state becomes the main regulator of the sex work industry and it – not the workers – decides the conditions under which sex work takes place. In countries where sex work is legalised but not decriminalised, some types of consensual sexual activity – such as that that occurs outside of demarcated areas – between adult sex workers and clients could still be illegal.

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