South Africa has taken a “massive step forward” in the struggle for sex workers’ rights with the publishing of the draft Criminal Law (Sexual Offences And Related Matters) Amendment Bill for public comment on Friday, 9 December. 

The bill, which seeks to decriminalise the buying and selling of sex, will have a profound impact on sex workers – particularly women, who make up the vast majority of the sector, according to Megan Lessing, spokesperson for the Sex Workers Education and Advocacy Taskforce (Sweat).

“We know that poverty and unemployment statistics are profoundly gendered in our country. Women, particularly those living in poverty, struggle to find work, and when they do it is often low-paid and exploitative. Only in the case of sex work, however, is it criminalised,” she said.

Speaking at a press briefing on Friday morning, Justice Minister Ronald Lamola expressed the hope that decriminalisation would minimise human rights violations against sex workers.

“It would also mean better access to healthcare and reproductive health services for sex workers, as well as compliance with health and safety and labour legislation. It would also afford better protection for sex workers, better working conditions and less discrimination and stigma,” he said.

Cabinet approved publishing the amendment bill on 30 November. It repeals the Sexual Offences Act – previously the Immorality Act – of 1957, as well as Section 11 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act of 2007, resulting in the decriminalisation of the sale and purchase of adult sexual services.

Read more in Daily Maverick: “SA moves a step closer to decriminalising sex work”

The Department of Justice and Constitutional Development did consider a model under which only the selling of sex would be decriminalised while buying of sex remained a criminal offence, according to John Jeffery, deputy minister in the department. However, this was deemed to be counter to the objective of protecting sex workers.

Sex workers and supporters march from the Mowbray police station to the Blackpool Sports Complex in Salt River where they could be vaccinated on 14 September 2021. (Photo: Gallo Images / Brenton Geach)

“If the buying of sex is still criminalised, the clients are going to want to transact in shadier parts of society, which still makes the sex worker vulnerable,” said Jeffery. “That’s one of the factors why we haven’t gone for that option.”

The amendment bill has been published on the Department of Justice and Constitutional Development’s website. The deadline for public comment on the proposed amendments is 31 January 2023.

Protecting sex workers

The proposals in the Criminal Law Amendment Bill align with one of the key interventions under pillar 3 of the National Strategic Plan on Gender-Based Violence and Femicide – the “finalisation of legislative process to decriminalise sex work”.

Read more in Daily Maverick: “Ramaphosa: Government ‘not even close’ to resolving issues faced by women”

“This follows the view that the ongoing criminalisation of sex work contributes to [gender-based violence and femicide] as it leaves sex workers unprotected by the law, unable to exercise their rights as citizens and open to abuse generally, not least when they approach state facilities for assistance,” explained Lamola.

Criminalising sex work has not stopped the selling or buying of sex, he continued. However, it has led to higher levels of violence against sex workers.

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“Criminalisation affects predominantly women, with the female sex worker usually being the one who is confronted by law enforcement, but the male client isn’t. The National Prosecuting Authority has also indicated a very low percentage of cases or prosecutions for such transgressions.”

Lessing pointed out that criminalisation cuts sex workers off from the avenues other workers have to try to improve their working conditions, such as the Commission for Conciliation, Mediation and Arbitration and the National Economic Development and Labour Council. It also reduces the likelihood of them receiving help from the police if they are attacked or robbed. 

“It is… key to note that sex work does not just support the women (and men) who engage in it, but also their families. Research has shown that on average a female sex worker supports between five and eight dependents on her income. This means that sex work supports the sustenance, education and well-being of literally millions of people,” she said.

“Despite this sex workers live in fear that they or their clients can be arrested at any moment and this vital income for their children and broader families will be lost. Decriminalisation will remove this fear [and] remove the foundation for the stigma and discrimination sex workers face.”

Jeffery said that once the legislation around decriminalisation had been finalised, there would be a need for training programmes for law enforcement officials.

Research has shown that on average a female sex worker supports between five and eight dependents on her income. (Photo: Gallo Images / Brenton Geach)

“One of the issues raised by sex workers is that when it comes to reporting crimes that are being committed – children being involved in selling sex, victims of trafficking being involved in selling sex – they can’t report it to the police because if they do that they may then themselves get charged for being a sex worker,” he said.

The amendment bill will focus on the decriminalisation of sex work only. A second piece of legislation dealing with the regulation of the industry will follow at a later stage, according to Lamola.

“It was thought to be important to deal with the decriminalisation first, so as to ensure that sex workers are no longer criminally charged,” he said. DM/MC