It is illegal to buy or sell sex in South Africa. But this could soon be a thing of the past if a recently published draft bill to decriminalize sex work is passed. Researchers and activists Marlise Richter and Monique Huysamen outline what is in the new law, what is good about it and what still needs work.
What is intended under the proposed new law?
If Criminal Justice (Sexual Offenses and Related Matters) Amendment Bill 2022 if approved, South Africa will become only the second country in the world to completely decriminalize sex work. It would no longer be illegal to buy or sell sex. New Zealand is the only other country where this is the position.
The bill proposes to remove the criminalization of buying and selling sex. It also proposes to clear the criminal records of those charged with buying or selling sex.
Predictably, various groups have pushed back against the bill, mostly on moral grounds. Opponents of the bill recommend that either:
the current law that fully criminalizes all aspects of sex work remains. or
that sex workers are decriminalized but that clients remain criminalized.
This last idea is taken from what is called “the Nordic model” – an approach followed by some Nordic countriesincluding Sweden.
Why is complete decriminalization in South Africa so important?
Women in South Africa experience very high levels of gender-based violence. Female sex workers are even more vulnerable than other women. A recent one study showed that 70% of female sex workers had experienced violence in the past year. More than half had been raped by close partners, police, clients or other men. Criminalization normalizes violence in the context of sex work.
Another argument for decriminalization concerns health. HIV prevalence between 39% and 89% has been documented among female sex workers across different areas of South Africa over the past decade. This is extremely high compared to the country national HIV prevalence of 13.7%.
Sex workers are particularly vulnerable to HIV infection due to the many dangers associated with sex work in a criminalized context. Sex workers usually have many sex partners. Their working conditions are precarious and insecure. And the unequal power relationship between sex worker and client makes it very difficult to consistently negotiate safer sex.
The social stigma attached to sex work also means that some caregivers hold prejudiced and vindictive views against sex workers. These views can drive sex workers away from health care, including HIV prevention, treatment and support.
The repeal of outdated laws from the apartheid era would have a far-reaching, positive impact on health and well-being of individual sex workers and thus also public health.
If sex work wasn’t a crime, clients and police would not have the power to abuse sex workers. Sex could regularly negotiate safe sex. The police must take their complaints seriously. Sex workers would also feel safer reporting discrimination and disrespectful health care workers.
In case of decriminalization, sex work would be recognized as work. The principles of occupational health and safety and fair work would apply. Decriminalization is particularly important for the dignity of poor black sex workers from working-class backgrounds, as at present bear the burden of the stigma in connection with the criminalization of sex work.
What is the Nordic model?
The Nordic model is a legal framework adopted by several Nordic countries, including Sweden and Norway.
According to this view, selling sex should be decriminalized, but buying sex remains a crime.
The model assume that criminalizing the clients of sex workers would discourage people from purchasing sexual services, thereby ending the demand for sex work.
Research in countries that have adopted this shows that it has not made sex work safer for sex workers, nor has it eradicated sex work. Evidence also shows that it is the criminalization of clients bad for sex workers’ health.
If buying sex is illegal, sex workers have less time to weed out dangerous clients and clients may pressure sex workers to agree to risky transactions in compromising situations.
South Africans have learned painful lessons about why the state has done it no business in people’s bedrooms. The apartheid-era state banned sex in “colour” and “same-sex” configurations, which South Africa subsequently strongly rejected under democracy. Yet the same law still lives on for adult, consensual sex work.
Why arguments against criminalizing clients should be countered
Our research shows that while most of clients of sex workers in South Africa are men, they are a diverse group from all walks of life. Some are violent and abusive against sex workers. But many are not. Some sex workers report that they have mutually respectful interactions and contracts with customers.
In our research, very few men self-reported violence against sex workers. Most actively distanced themselves from the violence associated with men paying for sex, making it clear that they not engaged in or accepted violence against sex workers.
Based on our research and that of others, we have believe that the decriminalization of clients would have positive spin-offs.
First, recruiting clients who have been identified by sex workers as nonviolent and respectful as peer educators can instill and reinforce positive norms among clients.
Second, customers are well suited to act as whistle blower when they discover human rights violations such as human trafficking or the exploitation of children in the sex industry.
Third, customers can be the key to reducing HIV transmission. Scaling up antiretroviral therapy among sex worker clients would almost avoid one fifth of new HIV infections in South Africa over the next decade.
Read more: Why South Africa’s HIV prevention program should include sex worker clients
The Nordic model is flawed and demonizes customers. Putting sex work clients in jail punishes them for buying a service. This is ultimately bad for everyone’s health.
The bill should be passed as is and as quickly as possible.
It will make sex work less risky and dangerous and our society safer.
Author: Marlise Richter – Researcher, African Center for Migration & Society, University of the Witwatersrand | Monique Huysamen – Senior Research Associate in Sexual and Reproductive Health, Manchester Metropolitan University