Proposals to decriminalize sex work in South Africa have been moved back to the front burner after the newly installed premier of the country's richest province, Gauteng, remarked that the issue should be addressed "objectively and with an open mind". A review of the current legislation is underway.
The Sexual Offences Act of 1957 prohibits all sex work, and any activity associated with it - keeping or participating in the management of a brothel, procuring someone to become a sex worker, soliciting or selling sex, and living off the earnings of a sex worker - is a criminal offence. The Act was amended 50 years later to make buying sexual services a criminal offence.
Enforcement of the sweeping law is extremely difficult; the police generally use municipal by-laws that target street-based sex workers under the guise of being a "public nuisance", leading to claims of police harassment, while the authorities ignore thousands of classified adverts for sexual services in daily newspapers and elsewhere.
The South African Law Reform Commission (SALRC) sets out four scenarios in a report released in May 2009: maintaining the status quo, partial criminalization, non-criminalization, or the "regulation of adult prostitution and prostitution-related acts." Public submissions and comments on the proposed changes can be made until 30 June 2009.
The country is divided on the issue. "Worldwide, you will find it [sex work]... We must begin to appreciate that commercial sex work is an industry, here in Gauteng," said the province's female premier, Nomvula Mokonyane.
"The best is to recognize commercial sex work, make sure it has different support systems ... have a designated area, register people, let them be subjected to periodic health tests, and also let them be subjected to what me and you are subjected to — tax."
Worldwide, you will find it [sex work] ... We must begin to appreciate that commercial sex work is an industry, here in Gauteng
Although Mokonyane did not explicitly call for sex work to be legalized, her view was at odds with South Africa's chief prosecutor, Mokotedi Mpshe, who told local media that decriminalizing sex work would be bad for the country's morals.
Proponents of decriminalization said a changing the law would not destigmatize the sex industry, but would improve the health and safety of sex workers.
Lauren Jankelowitz, of the Reproductive Health and HIV Research Unit (RHRU) at the University of the Witwatersrand, which runs sex worker-friendly clinics and outreach programmes, said most sex workers were reluctant to access health services or report incidents of rape and assault to the police, fearing both stigma and arrest.
At a forum in Johannesburg on 28 May, Sex Workers and the World of Work, sponsored by the South African Business Coalition on HIV and AIDS (SABCOHA), Jankelowitz said a change in the law would be a step in the right direction, but given the prevailing conservative views of government, this was unlikely.
Regardless of the law, South Africans had to change their prejudiced views of sex workers, and the police, health workers and the public should be sensitized, she said.
Eric Harper, director of the Sex Worker Education and Advocacy Task Force (SWEAT), told IRIN it would take more than sensitization training to change the treatment of sex workers.
"The emphasis has to be less on opinion change and more on actual practices to make sure people are treated in a humane and dignified way, and are given access to the services they deserve," he said. "If I'm a health worker, I have to know that I have to act in a professional way, regardless of what I think about what people are doing."
Research by the RHRU found 45 percent to 60 percent of its patients in the sex worker outreach programme were HIV-positive, yet Jankelowitz said many sex workers did not have access to reproductive health and HIV services.
Daytime clinic hours were often inconvenient for sex workers, who mainly work at night and sleep during the day; when sex workers did visit clinics, they often found unfriendly healthcare workers, and could be arrested on the way there.
|A sex worker could be going to the grocery store and if a policeman sees her and knows she is a sex worker, he might arrest her for loitering or being a public nuisance|
"A sex worker could be going to the grocery store and if a policeman sees her and knows she is a sex worker, he might arrest her for loitering or being a public nuisance," Jankelowitz told IRIN/PlusNews.
Lindi Nyembe*, a sex worker in the Johannesburg's inner-city neighbourhood of Hillbrow and co-ordinator of the local branch of Sisonke, an organization advocating sex worker's rights, said police often extorted sexual or monetary bribes from sex workers, and were reluctant to open cases for those who were raped or assaulted by clients, as their attitude was that they "deserved it".
"I've known women who have said, 'Better safe in the hands of the criminals than in the hands of the police,'" she said.
In a case brought by SWEAT in Cape Town, the High Court recently ruled that the police were guilty of harassing the sex workers, because they arrested them knowing that the sex workers would not be charged or prosecuted.
Harper said in countries such as New Zealand, which had decriminalised sex work, relations between police and sex workers were greatly improved. In South Africa, better relationships between sex workers and law enforcement could encourage sex workers to report cases of human trafficking and children's involvement in the sex trade.
He warned that while decriminalization was a step toward addressing human rights violations and increasing access to health care, it did not necessarily guarantee real improvements in sex workers' lives: "It's a step in that direction, but it's not a magic wand that is going to make stigmatization disappear."