After almost two decades, the South African Law Reform Commission chose fiction over facts.
News headline: “Breaking news! Policymakers critically engage with evidence to inform decision-making!” Now, this is a world many of us would love to live in, where policymakers make evidence-based decisions.
Unfortunately, we live in a world where fiction trumps facts.
A recent example of this triumph of evangelism over evidence is the content of the South African Law Reform Commission’s recently released report on “adult prostitution”.
In 1997, the commission was tasked with exploring the need for law reform in relation to adult sex work in South Africa.
After taking two decades to draft its final report, it has recommended the continued full criminalisation of consensual adult sex work, including both the buying and the selling of sex.
The commission also included a last-minute secondary option of partial criminalisation. Under this, it would no longer be a crime to sell sex, but it would be a crime to buy it (and related activities).
These recommendations were made despite mounting evidence that shows that the full decriminalisation of sex work is the most effective and respectful model to ensure improved access to health, justice and support services for sex workers, as well as allowing them to realise their basic human rights.
Let’s consider the first recommendation from the commission — full criminalisation of sex work. We have had this apartheid-era model in South Africa for a long time now. What have the results been? High levels of violence and abuse, stigma and discrimination when sex workers attempt to access basic services, and high rates of new HIV infections.
In the United States, where this practice is criminalised, female sex workers are almost 18 times more likely to be murdered than other women, a 2004 study published in the American Journal of Epidemiology found.
Although this kind of research may be lacking in South Africa, the country has experienced countless murders of sex workers and the perpetrators seldom seeing the inside of a courtroom.
And this violence is most often committed by police officers, as illustrated by a review by the Women’s Legal Centre of cases reported between 2011 and 2015. Of the abuse reported to the centre by sex workers, more than 60% of cases identified the police as perpetrators.
The evidence for why criminalising sex work has not and does not work is obvious. The Law Reform Commission’s recommendation is, at best, perplexing and, at worst, insulting.
Now let’s consider the last-minute addition of the partial criminalisation model, commonly known as the “Swedish” or “Nordic” model. This is often touted, by people who believe sex work must be eradicated, as a tool to “end demand” for sex work. They claim this model achieves the goal of reducing the number of people selling sex.
However, this claim is based on one report commissioned by the Swedish government that has since been completely discredited. Even the Swedish National Board of Health and Welfare stated in a 2008 report that it has been impossible to gauge whether overall numbers have changed since the implementation of the 1999 law.
Moreover, three Swedish government reports confirm that sex workers have been pushed into more isolated spaces, far from the reach of support services. In Norway, under the partial decriminalisation model, vulnerability and stigma have increased violence against sex workers, a report by the country’s ministry of justice and police found.
As for the fallacy of “ending demand” by criminalising clients under the Swedish model, I think the proponents of partial decriminalisation conveniently forget that clients are already criminalised in South Africa and the sex industry has not disappeared.
The public health sector in South Africa, and globally, is clear in its call for the full decriminalisation of sex work. A 2014 modelling study published in The Lancet medical journal found that decriminalising sex work would prevent up to almost half of all new HIV infections among workers and their clients in the next 10 years.
But proponents of the Swedish model often say: “We are not convinced that decriminalisation will protect sex workers from HIV.” Here are some organisations that are convinced — the World Health Organisation, The Joint United Nations Programme on HIV/AIDS, Amnesty International, Doctors Without Borders staff, the Aids Healthcare Foundation, South Africa’s National Aids Council and the Southern African HIV Clinicians Society. The list goes on.
These organisations have been convinced by the evidence that is interdisciplinary and peer-reviewed and that employs rigorous scientific methodology. These bodies also support the decriminalisation of sex work because they have experience in providing health services to people as well as listening to sex workers about the impact of the law criminalising what they do.
As human rights advocates, we are aware that one cannot “copy and paste” legislation from one context to another. South Africa has a complex history of systemic injustice and inequality, which plays itself out in every aspect of our lives. In formulating legislation, we need not only to look critically at research; we need to listen to the people whose lives are affected.
Luckily, we have the largest sex worker-led movement on the continent. Formed in 2003, the Sisonke National Sex Workers Movement of South Africa has advocated for decriminalising sex work. Sadly, instead of listening to sex workers and considering evidence, the commission chose fiction over facts.
We urge South Africa to put aside judgment long enough to engage critically with the evidence. We must remember that this is not the first time we have had to struggle in the face of dangerous moralistic conjecture.
We have succeeded in providing access to safe abortions, we have abolished capital punishment and we have recognised rights for the lesbian, gay, bisexual, transgender and intersex people in this country because we recognised that people’s lives trump our socialised distaste for their choices.
We will continue to be guided by our desire to live free from discrimination, prejudice and violence and not fall prey to unsubstantiated opinions. In our call for the full decriminalisation of sex work, we will remain steadfast with the facts and realities of sex workers’ lives.
Ishtar Lakhani is the advocacy and human rights defence manager of the Sex Workers’ Education and Advocacy Taskforce.