Adult, consensual sex work in South Africa - The cautionary Message of criminal law and sexual morality

South African Journal on Human Rights

Volumn 25, Issue 2, 2009, Pages 179-197

  Boudin, Chesa ^a   Richter, Marlise ^b  

^a YALE UNIVERSITY   (United States)

^b UNIVERSITY OF THE WITWATERSRAND   (South Africa)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84864655203     PISSN: 02587203     EISSN: 19962126     Source Type: Journal    
DOI: 10.1080/19962126.2009.11865199     Document Type: Note

References (130)

1. M Nussbaum 'Whether from Reason or Prejudice" Taking Money for Bodily Services' in J Spector (ed) Prostitution and Pornography: Philosophical Debate about the Sex Industry (2006) 175, 178.
2. Felicia, Unpublished Submission to the SALRC, 23 June 2009. Felicia (not her real name) is a Johannesburg-based sex worker.
3. The Sexual Offences Act 23 of 1957, s 11 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act of 2007.
4. The SALRC is currently exploring different law reform strategies for sex work as part of a bigger project that endeavours to modernise the criminal law on sexual offences in South Africa. The SALRC released its Issue Paper in 2002 and requested input from the public. This process was repeated with the release of the Discussion Paper in May 2009 and the SALRC is now required to compile a report with specific recommendations on legal reform to the Minister of Justice and Constitutional Development. SALRC Discussion Paper 001 Sexual Offences: Adult Prostitution (May 2009).
5. The SALRC is currently exploring different law reform strategies for sex work as part of a bigger project that endeavours to modernise the criminal law on sexual offences in South Africa. The SALRC released its Issue Paper in 2002 and requested input from the public. This process was repeated with the release of the Discussion Paper in May 2009 and the SALRC is now required to compile a report with specific recommendations on legal reform to the Minister of Justice and Constitutional Development. SALRC Discussion Paper 001 Sexual Offences: Adult Prostitution (May 2009) 10.
6. The SALRC elected to use the term 'non-criminalisation' to denote the decriminalisation of sex work. This article will employ the term decriminalisation in accord with terminology used internationally.
7. Obviously all choices are made in a limited universe and many sex workers who choose their work are still severely constrained by the social and economic choices available to them. However, the division between sex work and trafficking is crucial. Butcher writes 'The distinction between trafficking and prostitution is important because it pivots on individual agency. Trafficking, though variously defined, covers coercion, forced labour, and slavery. Prostitution describes the sale of sex, by no means necessarily without consent or with coercion'. K Butcher 'Confusion Between Prostitution and Sex Trafficking' (2003) 361 Lancet 19-83.
8. See, for example, R Hittinger 'The Hart-Devlin Debate Revisited' (1990) 35 American J of Jurisprudence 47-53.
9. P Devlin The Enforcement of Morals (1965).
10. Ibid 17.
11. HLA Hart Law, Liberty, and Morality (1963).
12. See, for example, Great Britain Committee on Homosexual Offences and Prostitution 'Report of the Committee on Homosexual Offences and Prostitution' 24 (1957) ('There must remain a realm of private morality and immorality which is, in brief and crude terms, not the law's business'.).
13. G Geis Not The Law's Business?: An Examination of Homosexually, Abortion, Prostitution, Narcotics, and Gambling in the United States X (1979).
14. KT White 'The Court-Created Conflict of the First Amendment: Marginalizing Religion and Undermining the Law' (1994) 6 J Law & Pub Policy 181-204 (reporting Justice Holmes's statement that 'you can't legislate morality').
15. J Lewin Politics and Law in South Africa: Essays on Race Relations London (1963) 87.
16. Truth and Reconciliation Commission (TRC) of South Africa TRC of South Africa Report (1998) 452.
17. This Act commenced on 30 September 1927 and was repealed by s23 of Sexual Offences Act 23 of 1957.
18. This Act commenced on 8 July 1949 and was repealed by s7 of the Immorality and Prohibition of Mixed Marriages Amendment Act 72 of 1985.
19. This Act commenced on 12 May 1950 and was repealed by s23 of the Sexual Offences Act 23 of 1957.
20. This Act repealed the Immorality Act of 1927 and the Immorality Amendment Act of 1950 and commenced on 12 April 1957.
21. This Act commenced on 27 March 1968 and was repealed by the Immorality and Prohibition of Mixed Marriages Amendment Act 72 of 1985.
22. R Omond The Apartheid Handbook (1985) 28.
23. TRC (note 14 above) 31.
24. R v S 1954 (3) SA 522 (A).
25. The Population Registration Act 30 of 1950 classified people as white, Coloured or Native. Additional legislation was later enacted to tighten the racial classification.
26. Omond (note 20 above) 29.
27. However these enforcement practices are not a thing of the past. As recently as 1996 an undercover police officer used state funds to pay a woman in a night club for a 'pelvic massage' in order to gather evidence of illegal sex work. S v Jordan 2002 (11) BCLR.
28. Y Mokgoro 'Speech: Constitutional Claims for Gender Equality in South Africa: A Judicial Response' 67 Albany LR (2003) 565.
29. Reproductive Health Research Unit (RHRU), Sociology of Work Unit University of the Witwatersrand and Vrije University Amsterdam Women at Risk: A Study of Sex Work in Hillbrow (2002).
30. C Gould & N Fick Selling Sex in Cape Town: Sex Work and Human Trafficking in a South African City (2008).
31. J Julyan 'Women, Race and the Law' in A Rycroft (ed) Race and the Law in South Africa (1987) 139.
32. KL Karst 'Woman's Constitution' (1984) 3 Duke LJ 447, 456-7 cited in
33. C Romany 'Black Women and Gender Equality in a New South Africa: Human Rights Law and the Intersection of Race and Gender' (1996) 21 Brooklyn J of Int L 857, 888.
34. MA Chen 'Rethinking the Informal Economy: Linkages with the Formal Economy and the Formal Regulatory Environment' United Nations Department of Economic and Social Affairs Working Paper 46 (2007) . See also
35. M Hunter 'The Changing Political Economy of Sex in South Africa: The Significance of Unemployment and Inequalities to the Scale of the AIDS Pandemic' (2007) 64 Social Science & Medicine 689-697.
36. R Devey, C Skinner & I Valodia 'Second Best? Trends and Linkages in the Informal Economy in South Africa' Development Policy Research Unit Working Paper 06/102 (February 2006) .
37. C Roederer 'The Transformation of South African Private Law After Ten Years of Democracy: The Role of Torts (Delict) in the Consolidation of Democracy' (2006) 37 Columbia Human Rights LR 447, 472.
38. J Halley 'Rape at Rome: Feminist Interventions in the Criminalization of Sex-related Violence in Positive International Law' (2008) Michigan J of Int L 1; Butcher (note 7 above) 1983.
39. J Gardner 'Criminalising the Act of Sex: Attitudes to Adult Commercial Sex Work in South Africa' in M Steyn & M van Zyl (eds) The Prize and The Price: Shaping Sexualities in South Africa Pretoria (2009) 329-40.
40. The vulnerability of sex workers to violence is immense. Sex workers often report violence and in particular police harassment and brutality to researchers. Research has documented sex worker complaints on assaults, rape, extortion, and demands for sex or money as bribes.
41. See A Pettifor, ME Beksinska & H Rees 'High Knowledge and High Risk Behaviour: A Profile of Hotel-Based Sex Workers in Inner-City Johannesburg' (2000) 4 African J of Reproductive Health 35-43.
42. JM Wojcicki & J Malala 'Condom Use, Power and HIV/AIDS Risk: Sex-Workers Bargain for Survival in Hillbrow/Joubert Park/Berea, Johannesburg' (2001) 53 Social Science & Medicine 99-121.
43. J Arnott 'Sex Workers and Law Reform in South Africa' (2004) 9 HIV/AIDS Policy and LR 78-80.
44. N Fick 'Sex Workers Experiences with the Local Law Enforcement in South Africa' (2005) 8 Research for Sex Work 4-8.
45. N Fick 'Police Abuse of Sex Workers when Making Arrests: Enforcing Fear' (2006) 16 SA Crime Quarterly 27-34.
46. L Vetten & J Dladla 'Women's Fear and Survival in Inner-City Johannesburg' (2000) 45 Agenda 70-5.
47. Almost one-third of sex workers in the RHRU study reported they had had sex against their will in the last six months. RHRU et al (note 27 above). In a recent study in Cape Town, 12 per cent of street-based sex workers had been raped by a policeman, Gould & Fick (note 27 above).
48. SALRC (note 4 above) 15.
49. See also J Burchell & J Milton Principles of Criminal Law 2 ed (1997) 628.
50. SALRC (note 4 above) 16.
51. See for example C Pateman The Sexual Contract (1988) 189-218.
52. LL Rabie 'Can You Put on Your Red Light?: Lawrence's Sexual Citizenship Rights in Terms of International Law' (2005) 43 Columbia J of Transnational L 613, 621.
53. See for example a recent press statement by the Commission for Gender Equality which condemned forced marriages in the Eastern Cape. Commission for Gender Equality 'Forced Marriages, Lusikisiki (Eastern Cape)' (23 February 2009) .
54. Non-consensual sex work and non-consensual sex in general should always be proscribed. In fact, one of the problems with the current criminalisation of sex work is that it deprives sex workers of the protection of the law when non-consensual sex is forced upon them. MC Nussbaum 'Whether from Reason or Prejudice: Taking Money for Bodily Services' (1998) 27 J of Legal Studies 693, 710-2.
55. DAJ Richards 'Commercial Sex and the Rights of the Person: A Moral Argument for the Decriminalisation of Prostitution' (1979) 127 Univ of Pennsylvania LR 1195, 1215-6.
56. MA Baldwin 'Split at the Root: Prostitution and Feminist Discourses of Law Reform' (1992) 5 Yale J of L & Feminism 47, 99-100.
57. B Balos & ML Fellows 'A Matter of Prostitution: Becoming Respectable' (1999) 74 New York Univ LR 1220, 1242.
58. SE Thompson 'Prostitution - A Choice Ignored' (2000) 21 Women's Rights L Reporter 217, 232-4.
59. Nussbaum (note 1 above) 175-6.
60. Ibid 207.
61. SALRC (note 4 above) 10.
62. JM Wojcicki 'She Drank His Money": Survival Sex and the Problem of Violence in Taverns in Gauteng Province, South Africa"' (2002) 16 South African Medical Anthropology Quarterly 1, 1.
63. Statistics South Africa 'Quarterly Labour Force Survey Quarter' 1 (2009) in Statistics South Africa.
64. Chen (note 30 above) 6.
65. JM Wojcicki 'Commercial Sex Work or ukuphanda? Sex-for-money Exchange in Soweto and Hammanskraal Area, South Africa' (2002) 26 Culture Medicine & Psychiatry 339, 340.
66. Ibid 365.
67. The High Court made this point in S v Jordan: '[i]n principle there is no difference between a prostitute who receives money for her favour and her sister who receives, for rendering a similar service, a benefit or reward of a different kind, such as a paid-for weekend, a free holiday, board and lodging for a shorter or longer period, a night at the opera, or any form of quid pro quo'. S v Jordan 2002 (11) BCLR 1117 para 47 cited in
68. C Albertyn, L Artz, H Combrinck, S., Mills, L., Wolhuter 'Women's Freedom and Security of the Person' in E Bonthuys & C Albertyn (eds) Gender, Law & Justice (2007) 295, 354.
69. M Hunter 'The Materiality of Everyday Sex: Thinking Beyond "Prostitution"' (2002) 61 African Studies 99, 100-1.
70. Hunter (note 30 above).
71. RHRU (note 27 above).
72. The study defined these partnerships as follows: 'Respondents who lived with a partner were first asked to nominate if this person was a main or regular partner. A main partner was defined as someone they have sex with most of the time, whilst a regular partner was someone apart from their main partner that they had sex with regularly'.
73. Ibid 11.
74. Ibid.
75. SALRC (note 4 above) 10.
76. Ibid 56.
77. Ibid 10.
78. After considering the available evidence, the Law Commission found that 'In general, it appears that the criminalisation of prostitution may increase rather than reduce the possibilities of abuse and exploitation of women. There is no evidence that criminalisation prevents or deters women and men from entering prostitution, while there is evidence that, having entered the industry, prostitutes are rendered more vulnerable to exploitation and abuse by the fact that prostitution is criminalised'.
79. SALRC (note 4 above) 26.
80. See P de Vos 'On the Legal Construction of Gay and Lesbian Identity and South Africa's Transitional Constitution' (1996) 12 SAJHR 265, 276 (citing, inter alia, Immorality Ordinance 46 of 1903 21(1) (Transvaal)). For modern versions.
81. see, inter alia, Criminal Procedure Act 51 of 1977 ss 40, 42, 55, 59; Defence Act 44 of 1957 132(4) cited in E Cameron 'Sexual Orientation and the Constitution: A Test Case for Human Rights' (1993) 110 SALJ 450, 470.
82. De Vos (note 59 above) 278.
83. Section 49(2).
84. Immorality Amendment Act 57 of 1969.
85. Section 19 of the Sexual Offences Act of 1957 cited in De Vos (note 59 above) 278. Section 19 of the Act prohibits 'enticing to commission of immoral acts'.
86. President's Council 'Report of the Committee for Social Affairs on the Youth of South Africa' Government Printer (22 May 1987).
87. Constitution of the Republic of South Africa, Act 200 of 1993.
88. 'The State may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation'. Section 9(3). See also
89. HJ Schmid 'Decriminalisation of Sodomy Under South Africa's 1996 Constitution: Implications for South African and U.S. Law' (2000) 8 Cardozo J of Int & Comparative L 163, 165-6.
90. National Coalition for Gay & Lesbian Equality & Another v Minister of Justice & Others 1998 (12) BCLR 1517.
91. Ibid para 26(b).
92. Note 25 above.
93. SALRC (note 4 above) 21, 103.
94. M Gready 'Controlling our Fertility' in M Goosen & B Klugman (eds) The South African Women's Health Handbook (1996) 281, 326-40.
95. S Guttmacher, F Kapadia, JT Naude & H de Pinho 'Abortion Reform in South Africa: A Case Study of the 1996 Choice on Termination of Pregnancy Act' (1998) 24 Int Family Planning Perspectives 191, 194.
96. The preamble to the Choice on Termination of Pregnancy states 'Recognising that the Constitution protects the right of persons to make decisions concerning reproduction and to security in and control over their bodies... Recognising that the State has the responsibility to provide reproductive health to all, and also to provide safe conditions under which the right of choice can be exercised without fear or harm ... This Act therefore repeals the restrictive and inaccessible provisions of the Abortion and Sterilization Act, 1975 (Act No. 2 of 1975), and promotes reproductive rights and extends freedom of choice by affording every woman the right to choose whether to have an early, safe and legal termination of pregnancy according to her individual beliefs'.
97. See JM Wojcicki 'The Movement to Decriminalise Sex Work in Gauteng Province, South Africa, 1994-2002' (2003) 46 African Studies Review 83-109.
98. 'Sex Work: Decriminalisation' (SADC conference paper presented by Sylvester Rakgoadi, Secretariat for Safety and Security, Gauteng Province) (March 1998), cited in
99. D Zalesne 'Sexual Harassment Law in the United States and South Africa: Facilitating the Transition from Legal Standards to Social Norms' (2002) 25 Harvard J of L and Gender, 143, n 448.
100. Wojcicki notes that the ANC decided sex work 'was too sensitive an issue, and the public was not educated enough to handle it well' (note 74 above) 90.
101. 'Major News Items in Leading South African Newspapers' Xinhua English Newswire (21 July 1998).
102. 'Revolutionary Country; South Africa: Mandela Rule Bans Discrimination - But Will People's Behavior Change?' Baltimore Sun (23 April 1997) 18A.
103. Note 25 above.
104. E Bonthuys 'Women's Sexuality in the South African Constitutional Court' (2006) 14 Feminist Legal Studies 391-406.
105. R Krüger 'Sex Work from a Feminist Perspective: A Visit to the Jordan Case' (2004) 20 SAJHR 138-150.
106. Mokgoro (note 26 above) 571.
107. also see Albertyn et al (note 50 above) 353-61.
108. SWEAT (Sex Workers Education & Advocacy Task Force), CALS (Centre for Applied Legal Studies) & RHRU (2002). S v Jordan & Others (Sex Workers Education & Advocacy Task Force & Others) as amici curiae. Case CCT31/01, 9 October 2002, Constitutional Court of South Africa.
109. The amici set out six arguments on how the criminalisation of sex work harms sex workers. Those arguments were organised under the following themes: i) increased vulnerability to violence; ii) creating and sustaining unsafe, unfair and poor working conditions; iii) increasing the stigmatisation of sex workers; iv) restricting access to health, social, police, legal and financial services; v) creating an adverse impact on safer-sex practices; and vi) impact on the ability to find other employment.
110. Note 25 above para 16.
111. Ibid para 64.
112. Section 11 of the Criminal Law (Sexual Offences) Amendment Act of 2007 provides: A person (''A'') who unlawfully and intentionally engages the services of a person 18 years or older (''B''), for financial or other reward, favour or compensation to B or to a third person (''C'') - (a) for the purpose of engaging in a sexual act with B, irrespective of whether the sexual act is committed or not; or (b) by committing a sexual act with B, is guilty of engaging the sexual services of a person 18 years or older.
113. SALRC (note 4 above) 17.
114. For an overview of SWEAT's research and advocacy on the decriminalisation of sex work, see SWEAT 'Advocacy' .
115. N Fick 'Well Intentioned but Misguided? Criminalising Sex Workers' Clients' (2007) 22 SA Crime Quarterly 33-6.
116. Elsewhere, Fick argues that the new provision will have the following effects 'The burden of protecting clients from arrest will therefore fall onto the shoulders of sex workers themselves, who will work in more hidden ways or in less safe areas, to shield clients who are their only source of income. Sex workers would also have to see more clients in a day to make the money they need'.
117. N Fick 'Sexual Offences Amendment Act Criminalises Buying Sex' NGO Pulse (9 October 2008) .
118. Note 25 above.
119. SALRC (note 4 above) 152.
120. Vagrancy Act of 1866; Contagious Diseases Act of 1869; Police Offences Act of 1884.
121. Crimes Act of 1961; Summary Offences Act of 1991.
122. Section 8 of the PRA requires operators of sex work businesses to adopt and promote safer sex practices, while s9 requires the same of sex workers and clients.
123. The PRA brought the sex work industry under New Zealand's Health and Safety in Employment Act of 1992.
124. New Zealand Ministry of Justice 'Review of the Prostitution Reform Act 2003' May 2008.
125. Also see E Mossman & P Mayhew 'Key Informant Interviews - Review of the Prostitution Reform Act 2003' Crime & Justice Research Centre, Victoria University of Wellington (October 2007). The authors interviewed a number of sex workers on the Prostitution Review Act, and noted the following: 'The positive outcomes resulting from the PRA were seen as significant. Sex workers were no longer considered criminals, and they could earn a living as a sex worker without fear of being prosecuted and having to live with the stigma associated with criminal convictions. They now had rights similar to those working in other occupations, and were able to take legal action against those who denied them these rights. They were better able to negotiate safer-sex practices and seek assistance from the Police over issues of safety. Providing assistance to sex workers was also seen to be easier - as sex workers were more accessible, and barriers to discussing illegal behaviour had been removed' 77.
126. D Bramley, P Hebert, R Jackson & M Chassin 'Indigenous Disparities in Disease-Specific Mortality, a Cross-Country Comparison: New Zealand, Canada, and the United States' (2004) 117 New Zealand Medical J 1-16.
127. M Richter 'Sex Work, Reform Initiatives and HIV/AIDS in Inner-City Johannesburg' (2008) 7 African J of AIDS Research 323-333.
128. R v Curtis 1926 CPD 385 (masturbation between two consenting male adults is a crime); Baptie v S 1963 1 PH H96 (homosexuality as a mental disorder); S v V 1967 2 SA 17 (E) (masturbation between two men is still a crime).
129. E Cameron 'Unapprehended Felons': Gays and Lesbians and the Law in South Africa' in M Gevisser & E Cameron (eds) Defiant Desire: Gay and Lesbian Lives in South Africa (1994) 89, 92-100.
130. Busie, Unpublished Submission to the SALRC, 23 June 2009. Busie (not her real name) is a Johannesburg-based sex worker.