This means that anyone who buys sex, who sells sex, or who helps facilitate a sex-work transaction can be prosecuted.
For years, advocates and sex workers have asked that the law on sex work be changed, and that all criminal elements are removed (the ‘decriminalisation’ of sex work). Research has shown that this will reduce HIV, will make societies safer, and will respect the human rights of sex workers.
Yet, very little has happened. Why?
People do not like to think or talk about sex work (or prostitution). Except when they are rude or insulting towards other people, or when cracking ‘dirty jokes’ – mostly about women.
Many people associate sex with love, intimacy and perhaps even long-term relationships. The idea of having sex with a stranger for money, and therefore selling sex as a job, is something that many people feel deeply uncomfortable with. They think selling sex is a ‘sin’, is ‘wrong’ or an insult to women, and want the criminal law to stamp it out. They don’t think about the fact that people have sex for many different reasons, and that adult, consensual sex is a private decision and should be free from state interference.
This prejudiced thinking is a form of sexual moralism – that is, making judgements about another person’s morality based on their sexual behaviour or preferences. Sexual moralism forms the core of homophobia and transphobia, and was the basis for outlawing sex across the colour bar in apartheid South Africa. Fortunately, our laws on sexual orientation and race have changed for the better and reflect our Constitutional values.
It is time that people challenge their own sexual moralism, and that we do the same on sex work!
This year marked the 21st International AIDS Conference (AIC) held in Durban – 16 years since this conference was last held on South African soil in 2000. So it was an apt time to ask what has
changed for sex workers in the last 16 years? The answer is, very little.
In those 16 years: the apartheid-era law that criminalises sex work remains unchanged; sex workers are still on the frontline in the battle against HIV/AIDS; violence against sex workers continues to occur with impunity, and sex workers are still stigmatised and discriminated against based on their occupation.
Undeterred by this lack of change, the Sex Workers Education and Advocacy Taskforce and the Sisonke Movement of Sex Workers in South Africa mobilised to put sex workers’ issues on the agenda at the IAC. We were there to make our struggle visible. We were there not only to occupy civil society spaces but to claim a space at the table that is usually reserved for the ‘professionals’ – doctors, scientists, politicians, policy makers. We were there as human rights’ activists, experts, and academics, to ensure there was ‘nothing about us, without us’.
Many of the conference sessions focused on sex work and sex workers are acknowledged globally as a ‘key affected population’ in HIV prevention, treatment and care, yet sex workers were barred from the conference – the very platforms that were created to ‘help us’. Two of our delegates were refused access to the conference because the accreditation process revealed they had previous criminal records and a number of our contingent experienced severe transphobia from conference organisers and security. The process was humiliating and a clear example of how criminalisation results in bizarre double-speak.
But these hurdles did not stop us. We arrived in our numbers determined not to be left outside. We were unrelenting and unapologetic in our calls to decriminalise sex work, and we can say with certainty that our voices were heard. Our voices were heard by our politicians (the Deputy Minister of the Department of Social Development wore our bright orange ‛This is what a sex worker looks like’ t-shirt), celebrities (Charlize Theron and Sir Elton John both showed their support for decriminalisation), and Constitutional Court Judge Edwin Cameron invited us to share the stage.
The question is now is not whether we were heard, but whether our voices are still ringing in the heads and hearts of South Africans. Will the Department of Justice finally release the South African Law Reform Report, whose process started 17 years ago? Will policy makers listen to the overwhelming evidence that decriminalisation is the best legal model to ensure that sex workers can access their rights? Will we be able to attend the next conference and not be criminals?
Address presented at a session entitled ‛South Africa’s National Sex Worker HIV Plan: Are you coming?’ at the 2016 International AIDS Conference in Durban. For a video of sex worker rights activism at the conference, see:
After 16 years the International AIDS Conference again occupied the city of Durban.
Much has changed in the 16 years since those 12,000 researchers, policy makers, donors and activists came together for the first time in a developing country. South Africa at the time had the highest prevalence rate in the world and, under the leadership of Thabo Mbeki, was facing AIDS denialism.
The conference, under the theme Breaking the Silence, took place just six years after our first democratic elections and four years after we adopted our Constitution. At that time SWEAT (Sex Worker Education & Advocacy Taskforce) was four years old, recently registered as an independent organisation, and had begun the hard work of organising sex workers. The Sisonke Sex Workers movement was just a dream, and sex workers were idealistically waiting for change.
Law reform on sex work pre-dated the AIDS conference – it was 1999 when law reform on sex work was first mooted and in 2002 an issue paper was released by the Law Reform Commission.
Yet, criminalisation of sex work still remains on the agenda 14 years later.
The release of the last report resulting from a discussion paper in 2009 has been ‘imminent’ for three years now. Just how serious are we about addressing the needs of sex workers?
There are four things you need to know about criminalisation of sex work: It harms sex workers; it enables corruption and abuse against sex workers; it drives stigma, and it erodes our efforts to end AIDS.
Sex workers were at the AIDS conference [in their] numbers, although continued criminalisation meant sex workers had to wait at the doors while criminal records were checked and some, whose past records had been unearthed, had to argue to be let in. We had to explain why sex workers were here, we had to answer questions for security personnel. This is an excellent example of the barrier that criminalisation poses to sex workers.
Sex workers are arrested for having consensual sex while their rapists never see the inside of a jail cell.
(2) Corruption and abuse
The law against sex work doesn’t work – after almost 60 years of criminalisation, sex workers are still here. The only thing the law has done is enable police corruption and abuse. It allows violence against sex workers to continue unabated – crimes against sex workers go unreported and those who abuse sex workers can do so with impunity. For the most part, when a sex worker is murdered, no one faces justice.
Sex workers are jeered at in police stations, and told they cannot report rape because ‛sex workers can’t be raped’. Sex workers are profiled by police, fined exorbitant amounts under by-laws, and are jailed if they can’t pay. They are routinely asked for money – and for sex – in exchange for their release from custody.
Stigma is a machine oiled by criminalisation, justifying the actions of those who would shut sex workers out and refuse [them] health and other services. Stigma also means
sex workers anticipate being treated unfairly at health-care clinics and delay seeking help, if at all, for their health problems or worries.
After all, sex workers are criminals. At the AIDS conference, we assumed we would be supported – but again, sex workers were pulled aside and questioned.
We have to ‘sensitise’ health-care workers and the police to do their jobs because sex work is stigmatised. Just like the entry to the Conference, we must answer questions before being let in.
(4) Erodes efforts to end AIDS
Sex workers and sex work allied organisations have a Plan, as delegates heard from the CEO of the South African National AIDS Council, Dr Abdullah. The Plan is comprehensive, it includes sex workers as peers, as partners, and sex workers collaborated in its development. It also includes the decriminalisation of sex work. It was launched in March this year, with our Deputy President affirming the urgency of its implementation.
We have evidence of a crisis, as heard from Prof Lane in a session at the AIDS Conference. HIV prevalence in sex workers, to use the words of our Deputy President, ‛is the highest we have seen in any community’. HIV prevalence among sex workers is a judgement on South Africa’s HIV response. We have failed.
Can we say we are serious when our government, through the police, burns condoms provided by another arm of government?
Can we say we are serious when condoms are confiscated from sex workers as evidence of criminal activities?
Can we say we are serious about HIV when sex workers are refused access to this conference?
Can you say you are serious about the needs of sex workers when your commitment is only on paper, and not in practice?
Now that you know criminalisation harms sex workers here are some things you need to know about decriminalisation.
Based on evidence, decriminalisation will enable sex workers to address violence against them, enforce their rights and report violence against them.
Based on evidence, decriminalisation will not increase the number of sex workers exploited, women trafficked or children exploited.
Decriminalisation will not increase the demand for sex work – evidence suggests that the legal framework has little impact on the demand for sex work.
We have made so many gains since 2000: We changed the racist and oppressive laws that prevented progress; we progressed beyond AIDS denialism, and vastly improved the numbers of people on treatment.
The law that criminalises sex work is the last remaining apartheid era law and a significant barrier to progress in reducing infections among sex workers.
The Deputy Minister of Justice said in his address to delegates at the AIDS Conference on 18 July that his ministry had received a report from the Law Reform Commission, but Cabinet wanted to ‛form its own opinion’. He admitted that the law was not working. Deputy President Ramaphosa said in March that South Africa had ‛an inability to develop a coherent approach to the challenges facing sex workers’ – this is a clear indictment on criminalisation.
Courageous activists attended the AIDS Conference, and had to fight to be there. Some didn’t make it – we have lost many of our colleagues to untreated illness and violence.
Organisations delivering services to sex workers have done their work with significant funding and other challenges, and continue to do the work to ensure sex workers have access to prevention, treatment and care. Rights organisations like SWEAT, Sonke Gender Justice, Treatment Action Campaign and the Women’s Legal Centre continue to defend sex workers rights while the Sisonke Sex Workers Movement organises sex workers’ resistant to injustice.
We are asking for the same courage and commitment from our country’s leaders to make true the promise to leave no one behind, and decriminalise sex work.
 Director: Sex Worker Education & Advocacy Taskforce
 Police Abuse of Sex Workers: Data from cases reported to the Women′s Legal Centre between 2011 and 2015. Women’s Legal Centre April 2016, Cape Town.
 Prof Tim Lane UCSF 18 July, see South African Health Monitoring Survey: an Integrated Bio-Behavioural Survey Among Female Sex Workers
 The Impact of the Prostitution Reform Act on the Health and Safety Practices of Sex Workers – report to the Prostitution Law Review Committee Nov 2007, Gillian Abel, Lisa Fitzgerald Cheryl Brunton,
 Prostitution Law Reform in New Zealand, Prostitution Law Review Committee, New Zealand, June 2012 https://www.parliament.nz/en/pb/research-papers/document/00PLSocRP12051/prostitution-law-reform-in-new-zealand
 Moving Beyond Supply and Demand Catchphrases: Assessing the uses and limitations of demand-based approaches in anti-trafficking – Global Alliance Against Traffic in Women
 News 24 Wim Pretorius 11 March 2016 ′Ramaphosa launches ″historic″ plan to aid sex workers′ http://www.news24.com/SouthAfrica/News/ramaphosa-launches-historic-plan-to-aid-sex-workers-20160311