Is the South African Law Commission’s recommendation to sentence convicted sex workers to ‘diversion programmes’ a latest symptom of a country torn?
After almost two decades of work, the South African Law Reform Commission has recommended the continued criminalisation of sex work in a yet unreleased report. Sex work advocates say it’s a blow to workers’ rights and burgeoning efforts to prevent HIV among the country’s sex workers. South Africa has 155 000 sex workers, according to a 2015 study in the AIDS and Behaviour journal.
In 1999, the South African Law Reform Commission began evaluating possible alternatives to the country’s criminalisation of the voluntary sale and purchase of sex, including decriminalisation.
Almost 20 years later, the commission has finally delivered its report to Cabinet, according to Deputy Minister of Justice and Constitutional Development John Jefferies.
“The report, which hasn’t been released yet, is not positive,” said Jefferies this week, speaking to sex workers at the International Aids Conference in Durban. “It basically recommends the continued criminalisation but largely diversion of those cases.
“So rather than sex workers getting criminal records, the report recommends that they be put on diversion programmes and trained to look at alternative skills to hopefully encourage them not to be involved in sex work.”
Jefferies attributed the delayed release of the report to a Cabinet recommendation that government formulates a position on the matter before beginning public debate.
The commission’s recommendations come as a blow to workers and activists, who argue it threatens some of the world’s most progressive efforts at HIV prevention taking root in South Africa.
“It’s astounding that the law commission can recommend this,” said Ishtar Lakhani, advocacy manager for the Sex Workers Education & Advocacy Taskforce (Sweat).
“There are a number of human rights organisations, networks and even the South African National Aids Council that have made the case for decriminalisation based on evidence that it is the best method to decrease HIV infections.”
A 2014 study conducted by the University of California San Francisco among about 2 200 female sex workers in South Africa found HIV infection rates of between 40 and 72% among study participants.
In Cape Town, about 18% of sex workers with HIV had reportedly contracted HIV in the year before, suggesting a high rate of new infections among this group, according to the research presented at the 2015 International Aids Society Conference on Pathonogensis, Treatment and Prevention. The study is currently being reviewed for journal publication, according to co-author and Wits Reproductive Health and HIV Institute deputy executive director Francois Venter.
A 2014 study published in The Lancet traced about 6% of new infections in the country to sex work.
Organisations such as UNAids, the Southern African HIV Clinicians Society and South Africa’s Commission for Gender Equality have all issued statements supporting decriminalisation. This call was echoed in the country’s 2007 national HIV strategic plan although South Africa’s subsequent plan used much softer language, advocating instead for an “enabling legal environment” to extend care and treatment to workers.
According to Jefferies, although sex work is criminalised, only 241 cases have been prosecuted in the last three years. About half of these defendants were women, and the majority made admissions of guilt and avoided sentencing, he said.
What one hand giveth the other taketh away
That may be little consolation to sex workers who report being detained on suspicion of being sex workers and who say carrying condoms – often confiscated by police – is often seen as evidence of their profession, says Sweat human rights and lobbying officer Nosipho Vidima.
In June, the country began providing an HIV prevention pill Truvada, to sex workers in 11 health facilities nationwide to reduce their chances of contracting the virus.
This prevention strategy is known as pre-exposure prophylaxis (PrEP). In high-risk groups, PrEP has been shown to reduce the risk of contracting HIV by about 90% when taken daily.
These sites also began offering sex workers immediate HIV treatment upon HIV diagnosis. Currently, most adults in South Africa must wait until their CD4 counts, a measure of the immune system’s strength, drop to 500 to access antiretroviral (ARV) treatment.
According to South African National Aids Council’s CEO, Fareed Abdullah, 913 sex workers were tested for HIV as part the PrEP programme in June. Of those, 677 tested negative and 110 (16%) were started on PrEP. Of the 155 sex workers who tested HIV positive, 64 (41%) were started on antiretroviral therapy.
Both brand name and generic versions of Truvada are registered for use as PrEP in South Africa. According to Aspen Pharma Executive Director Stavros Nicolaou, the local pharmaceutical company received approval from the Medicines Control Council for the generic version, Tencitab, of the PrEP drug five months ago. Aspen Pharma holds licenses for both Truvada and the generic equivalent.
At the March launch of the national HIV sex worker plan deputy president Cyril Ramaphosa noted the irony in government’s conflicting response to sex workers:
“It is a matter of concern that while the department of health supplies sex workers with condoms to protect them from HIV, pregnancy and sexually transmitted infections, it is not uncommon for the police to confiscate these condoms.
“We have one organ of the state providing a very necessary service and another organ of the state taking that very service away. This is the consequence of our inability to develop a coherent approach to the challenges facing sex workers.”
Laura Lopez Gonzalez is a freelance health journalist and editor. She was Bhekisisa's news editor then deputy editor between 2016 and 2020. Follow her on Twitter @LLopezGonzalez