30th January 30, 2023
Tsietsi Sebelemetja,
The Director-General,
The Department of Justice and Constitutional Development,
South Africa.
Re: Support for the Proposed Criminal Law (Sexual Offences and Related Matters) Amendment Bill, 2022 (the Bill)
African Sex Workers Alliance (ASWA) writes this submission to affirm our support for the Criminal Law (Sexual Offences and Related Matters) Amendment Bill, 2022 which the Cabinet on 8 December 2022, approved the submission of the Bill to decriminalize sex work in South Africa for public comment.
We urge all members of the South Africa Parliament to support this Bill.
The African Sex Worker Alliance (ASWA) is a Pan African Alliance of 155 sex worker-led groups that exist to strengthen their voices, to empower and to advocate for and advance the health and human rights of female, male and transgender sex workers including those living with HIV and using drugs through networking, movement building and development of partnerships. ASWA was formed in February 2009 with an initial membership drawn from 10 African countries.
We showcase how ASWA is protecting sex workers by challenging the Sexual Offences Act in South Africa. Ever since it became law in 1957, this piece of legislation blocks sex workers from access to health care, labour rights, healthy working conditions, and human rights.
We note the purpose of the Bill is to repeal the Sexual Offences Act, 1957 (Act No. 23 of 1957) as well as section 11 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act No. 32 of 2007) to decriminalise the sale and purchase of adult sexual services and to provide for matters connected therewith. The Bill only decriminalises sex work as it relates to the buying and selling of adult sexual services.
The proposed Bill to fully decriminalise adult consensual sex work in South Africa would work towards:
- safeguarding the human rights of sex workers;
- protecting them from exploitation and abuse;
- promoting their health and safety and;
- creating an environment conducive to public health and decent workplace rights
Please refer below for more detailed evidence referring to each of the above areas.
ASWA supports the overwhelming evidence, as well as the many health and human rights experts, advocates, and those with lived experience, in support of the full decriminalisation of adult consensual sex work as the most effective way to safeguard the health, safety, human rights and workplace rights of sex workers, the majority of whom are women.
The Bill in its current state is supported by all of our 155 sex workers led members across Africa. We support the expertise and autonomy of these groups, who understand more than any the problematic and dangerous nature of criminalizing any aspect of sex work.
The criminalized nature of sex work in South Africa is a major barrier for sex workers (the majority of whom are women) in reporting abuse, discrimination and other forms of illegal activity. In fact, decriminalisation would encourage those within the industry to cooperate with authorities and build positive working relationships with police.
Other Models
ASWA does not support the ‘Nordic model’ (criminalising the purchasing of sex but not the selling of sex). There is strong evidence suggesting that these laws discourage women to report violence and abuse; result in human rights violations for sex workers; and do little to address the stigma and risk associated with criminalised sex work. It is imperative that sex work is fully decriminalised to ensure the safety of all sex workers, and to ensure the transparency of the industry.
Evidence for the support of Sex Industry Bill 2019
https://www.hrw.org/news/2019/08/07/why-sex-work-should-be-decriminalized
Safeguarding the Human Rights of Sex Workers
The World Health Organisation, UN bodies (such as UN AIDS, ILO and UNFPA), and human rights organisations recommend the decriminalisation of sex work as a matter of public health, public policy and the protection of human rights
In recognising the high rates of human rights abuses experienced by sex workers, Amnesty International developed a policy supporting the full decriminalisation of consensual adult sex work. This policy is based on extensive research and consultation in various regions, including in Australia, and having engaged with all sides of the debate.1 Amnesty’s policy reflects a contemporary and considered approach to improving the health, safety and rights of sex workers, while distinguishing adult consensual sex work from sex trafficking.
We would also like to reaffirm the danger in conflating sex work with sex trafficking or sexual slavery. Decriminalisation does not result in legalizing or enabling sex trafficking. In fact, it can create a more transparent industry where exploitation, abuse and other illegal activities are more easily distinguished.
Protecting them from exploitation and abuse
Under a criminalized model, sex workers work in underground and unregulated workplaces, without industrial or Workplace Health and Safety protections. In some jurisdictions, condoms and safe sex equipment, even health promotion material distributed by health workers, can be seized and used as evidence against suspected sex workers. Consequently, sex workers fear the police, and have little recourse when crimes are committed against them.
Promoting their health and safety
Criminalisation of sex work creates an environment of stigma, discrimination, and systematic exclusion that prevents sex workers from accessing health and support services and increases their risk of violence and abuse. A recent major review exploring the literature on sex work found that Sex workers are at disproportionate risk of violence and sexual and emotional ill health that has a direct link to the criminalisation of sex work. Furthermore, criminalisation has also shown to specifically undermine HIV prevention efforts. The Lancet medical journal’s series on HIV and Sex Workers reported that, ‘decriminalisation of sex work would have the greatest effect on the course of HIV epidemics across all settings.’
Creating an environment conducive to public health and decent workplace rights
In the countries where decriminalisation of sex work has been successful, research has demonstrated that this has resulted in high rates of safer sex practice, low rates of sexually transmitted diseases and improved sexual health, improved Workplace Health and Safety, little to no amenity impacts, and no evidence of organised crime;
- Sex workers were no longer being considered criminals;
- Sex workers had the same rights as those working in other industries, and;
- Sex workers could negotiate safe-sex practices more easily
Conclusion
We therefore reiterate our unequivocal support to support the Proposed Criminal Law (Sexual Offences and Related Matters) Amendment Bill, 2022 (the Bill).
Thank you for your support in this critical area of law reform. Please do not hesitate to contact Rose Wanjiku, Policy and Advocacy Manager, with any questions on rosewanjiku@aswaalliance.org
1.‘Amnesty International Policy on state obligations to protect and fulfil the human rights of sex workers’, https://www.amnesty.org/en/documents/pol30/4062/2016/en/
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