The recently released South African Law Reform Commission report on adult prostitution provides an opportunity to debate how law could regulate, curb, deter or prevent prostitution in our context of high unemployment, inequality, violence against women and poverty.
The report presents two legal options: full criminalisation, with diversion programmes or projects that would give prostitutes access to income-generating alternatives, or partial criminalisation, which is also referred to as the Nordic or equality model.
We, at the nongovernmental organisation Embrace Dignity, believe partial criminalisation recognises the harms of prostitution and decriminalises the person who sells sex. Under this scenario, it is the buyers of sex who face criminal prosecution.
One of the biggest pushes for decriminalisation of prostitution comes from the health sector. Prostitution carries not only the risk of HIV but also of physical violence and post-traumatic stress disorder (PTSD), a disorder that develops in some people who have experienced a shocking, scary or dangerous event.
A 1998, five-country study found that almost three out of four of prostitutes had been assaulted and 62% had been raped. The research, which included South Africa and was published in the journal Feminism & Psychology, also found that almost 70% of those surveyed met the criteria for PTSD.
We believe that partial decriminalisation would curb prostitution and lead to fewer people being exposed to the accompanying health risks without expanding or normalising the sex exploitation industry.
In 1999, Sweden partially decriminalised prostitution with its Sex Purchase Act. In a 2010 study, a government-commissioned inquiry found that within almost a decade of the law’s enactment street prostitution was halved.
The research also found little evidence to back claims that the law had made prostitution more dangerous and this was supported by police and women who had left prostitution. A 2017 review of the law published in Law & Inequality: A Journal of Theory and Practice argues that Sweden has had no documented murders of prostituted people since the law was passed.
Author Max Waltman writes: “Prostituted persons now often report (including among them a significant proportion of [lesbian, gay, bisexual, transgender and intersex] persons) that after 1999, johns in Sweden have become much more careful about how they treat prostituted persons, now knowing they may be reported simply for buying sex by a mistreated prostituted person who needs no additional offense such as rape or robbery to lodge a complaint, in turn providing the latter [with] a considerable bargaining advantage while risking no sanctions at all.”
And, although the Swedish government admits that the scope of human trafficking is hard to measure, police and social workers now say that “criminal groups that sell women for sexual purposes view Sweden as a poor market” and choose to establish networks elsewhere, according to its 2010 report.
Today, Sweden, Norway and Iceland have laws that unilaterally criminalise the buying of sex.
We are not convinced that decriminalising prostitution will protect women from HIV or violence. Instead, we believe that decriminalising prostitution will give legal status and moral approval to what we consider an industry of exploitation.
South Africa should follow in Sweden’s footsteps and criminalise the buying of sex. We do not believe the prostitution industry can be reformed.
In our opinion, the only lasting solution is to end it.
The Nordic or equality model is the appropriate legal framework to follow. It is in line with the human rights principles advocated by our Constitution, as well as the right to dignity, life and freedom, including access to socioeconomic rights.
Sethembiso Promise Mthembu is a programme associate at Embrace Dignity and a doctoral candidate at the University of KwaZulu-Natal’s school of gender studies. Nozizwe Madlala-Routledge is the cofounder and executive director of Embrace Dignity and the former deputy minister of health of South Africa.
Please note the Mail & Guardian and Bhekisisa use the term “sex work” in reference to the consensual buying and selling of sex between adults. Embrace Dignity prefers the term “prostitution”. This is the first in a two-part series examining the current debate surrounding the criminalisation of sex work. Later this week, we will be publishing a response to this piece by the Sex Worker Education and Advocacy Task Force (Sweat) and Sonke Gender Justice.
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