#PECANS2015 presentation, ‘Impact of criminalisation on South African sex workers’ lives’

Recently I had (for the first time) the opportunity to present my scholar-activism work in an academic forum.

On the 4th of March the PECANS (Postgraduate and Early Career Academics Network of Scholars) hosted a workshop on the theme: ‘Sexual Rights, Social Justice: What’s Law Got To Do With It?’ in Brighton (UK). I presented a revised version of my term paper on the ‘Impact of criminalisation on South African sex workers’ lives’.

This paper draws on South African sex workers’ lived experiences to illustrate the impact of criminalisation of sex work on their access to development resources (such as health, legal and labour rights). My work experience as an Advocacy Officer for the Sex Worker Education and Advocacy Taskforce (SWEAT) for the last four years, and my current role as the Global Network of Sex Work Projects (NSWP) Africa Correspondent have inspired this paper. SWEAT is a non-governmental organisation advocating for sex workers’ access to human rights, and the decriminalisation of sex work in South Africa.

1. ‘Sex work’ and sexual agency

Carol Leigh, better known as Scarlot Harlot, is accredited for having coined the term ‘sex work’. According to Harlot, sex work is the only ‘word for this work which is not a euphemism’ (Leigh 1997: 310). Traditionally referred to as prostitution, sex work can be simply understood as the exchange of sex for money, or reward of pecuniary value (Richter 2012: 63). In this paper I will be using the term ‘sex work’ as opposed to ‘prostitution’. I prefer the term sex work, because it denotes the activity as just that – work. The term also allows me to avoid the stigmatisation attached to the term ‘prostitution’, which often encompasses moral judgement that hinders it being recognised as a form of work (Krűger 2004: 138).

Choosing to sell sex has become a ‘contested symbol of female sexual agency within a male-dominated culture’ (Ditmore et al. 2010: 29). Pro- sex work feminists such as Dorothy Aken’Ova and Andrea Cornwall argue that promoting women’s sexual agency actually builds on the feminist principle of erotic justice (Cornwall et al. 2013: 21). Cornwall goes on to add that “sexual pleasure as a feminist choice can be part of reclaiming women’s agency” (Cornwall et al 2013: 3). Conversely for anti-sex work feminists, sex workers have come to symbolize the ‘problem’ of women’s sexual agency (Ditmore et al. 2010: 36).

However, Juline Koken asserts that agency is not ‘free will’ per se, but rather ‘an individual’s power to make choices regarding his or her actions within given circumstances’ (Ditmore et al. 2010: 29):

There is no job without its own risks – firstly. Secondly, not everyone’s job is their choice. Thirdly, you actually would have made a choice from the limited options that you have. So we are not exploited. Secondly, we are not victims (Female sex worker, Cape Town 2013).

Therefore, even though all the participants affirmed having made the conscious decision to sell sex, they did acknowledge that it was a choice made amongst limited choices. Indeed, Nivedita Menon argues that ‘freedom of choice’ is never absolute. Instead, we always exercise freedom to choose within “strict boundaries that are non-negotiable – these boundaries are defined by economic class, by race and caste and, of course gender” (Menon 2012: 175).

2. Selling sex in South Africa

According to the Sex Worker Population Size Estimate Study, 153 000 sex workers are estimated to be in South Africa, with 138 000 being female (2013: 4). This is approximately 0,9% of the total South African adult female population. Male sex workers are estimated at 7 000, and transgender female sex workers 6 000.

Under Section 20(1)(aA) of the Sexual Offences Act (SOA) of 1957 sex work is criminalised in South Africa. The Act is a remnant of the apartheid[1] regime’s Immorality Act of 1927, which criminalised sexual interactions across racial lines, specifically prohibiting sex between Black (African, Indian and Coloured) and White (Afrikaner and European) people. In 2007 the law was amended to include the purchasing of sex work (Krűger 2004: 149). Until then only the selling of sex was criminalised. Currently the sex worker, client and anyone living off the earnings of a sex worker is considered a criminal under South African law. However, since it is difficult to prosecute someone for sex work (unless caught through entrapment), authorities tend to rely on municipal by-laws, such as loitering, to arrest sex workers (ASWA 2011: 17).

In 2000 the South African Law Reform Commission (SALRC) embarked on a legislative reform process of the country’s legal system’s response to sex work under the Sexual Offences Act ‘Adult Prostitution’ Law Reform Project (107)[2]. Sex worker activists and civil society submitted recommendations to the ‘Adult Prostitution’ Discussion Paper, which outlined the implications of legal options relating to full criminalisation, regulation, legalisation, and decriminalisation of sex work. However, to-date the SALRC is yet to release its report, citing lack of Commissioners in the last recent years. Until the SALRC releases its Project 107 report the Department of Justice and Constitutional Development cannot table legislation on sex work before Parliament.

3. Criminalisation as structural violence slide

This paper argues that criminalisation of sex work amounts to structural violence towards sex workers, and results in human right violations. The paper explores how criminalisation regulates sex workers’ sexuality through the law, and unpacks the implications this has for their access to critical development resources. It specifically looks into police brutality, discrimination by health care givers, abuse by pimps and brothel managers, exclusion from development programmes, and the impact of criminalisation on sex workers’ well-being.

The paper reveals that criminalisation of sex work goes against the human development paradigm and capability approach. Not only do sex workers’ experience limited access to critical socio-economic resources, but their sense of human well-being is violated.

Section 12:  The right to freedom and security of the person, including protection against arbitrary detention and detention without trial, the right to be protected against violence, freedom from torture, freedom from cruel, inhuman or degrading punishment, the right to bodily integrity, and reproductive rights.

Therefore, it would appear that both the Universal Declaration of Human Rights and the Constitution of the Republic of South Africa are in direct conflict with the SOA criminalising sex work. Consequently, sex workers are left to bear the full brunt of this contestation; limiting their access to development resources.

4. Impact of criminalisation on sex workers’ lives

A 2011 report compiled by the African Sex Worker Alliance (ASWA), documents human right violations experienced by sex workers (female, male and transgender) in four African countries (Kenya, Uganda, South Africa and Zimbabwe)[3]. Through the analysis of 136 in-depth interviews and focus groups the report found that sex workers experience varied human right violations ranging from police brutality, discrimination by health care givers, abuse by pimps and brothel managers, violence from clients, and stigma from community members (ASWA 2011). In addition, exclusion from development programmes was also cited as an adverse effect of the criminalisation of sex work. This paper will now proceed to analyse some of these violations in relation to South African sex workers.

4.1 Police brutality
The abuse of power by law enforcers over sex workers is often cited as a common occurrence. This was confirmed by a 2012 research study[4] conducted by the Women’s Legal Centre (WLC), in collaboration with Sisonke, which the South African movement of sex workers. Drawing from the voices of 308 sex workers from four cities in South Africa the study revealed that police abuse of sex workers in the country is widespread and systemic. Almost 70% of the research participants reported having experienced some form of abuse at the hands of police (WLC 2012: 4). They complained of unlawful arrests, harassment, physical assaults, sexual abuse and extortion.

One day I was standing on one of the corners, the police came and ask what I was doing there and who I am waiting for, then they put me in the van and told me that they are taking me to the police station, but instead they took me back off the street and wanted sexual favours, and both of them had no tame tags (WLC 2012: 9).

When it came to male or transgender sex workers, abuse from the police was often marked by homophobia (ASWA 2011). These abuses are in direct violation of Section 12 of the Bill of Rights, which speaks of a fundamental right to ‘freedom and security of the person’[5]. The report concluded by citing criminalisation as the main contributing factor to police brutality. Because police see sex workers as criminals they tend to feel entitled to abuse them. Based on this evidence the WLC advocates for decriminalisation as the most sensible human rights-based approach to sex work (WLC 2011: 20).

4.2 Discrimination by health care givers
Criminalisation also leads to sex workers being discriminated against by medical care givers in public health institutes:

They raped me the whole night and not to pay me money. I go to report to the police they told me to go to the hospital and l was still wearing my jeans, wig and with my breast. When the doctor examined me and find out that l am a she-male he called other doctors and nurses. They left their work to come and see that a man got raped. l was like a mockery… The doctor told me l was not raped but l was sodomised because l am a man. The way l was dressing they said ‘what kind of a woman?’ I just walked from the hospital without being treated. It was not fair because l was raped the whole night  (ASWA 2011: 52-53).

Such discrimination denies sex workers access to basic health care services and also increases their vulnerability to HIV/AIDS. According to a study conducted by the Fordham University School of Law, criminalisation ‘dissuades sex worker involvement in the development of health policy decisions that affect them’ (2013: 1429). Even when sex workers had been consulted in drafting South Africa’s National Strategic Plan for HIV, STIs and TB (NSP) the final policy document made no mention of decriminalisation[6].

It is apparent that ‘the provision on the decriminalisation of sex work was the victim of a political trade-off between civil society and government, a decision to which sex workers were not party to’ (Chakuvinga and Richter 2012: 66).

4.3 Abuse by pimps and brothel managers
In May 2010 a Cape Town-based sex worker called Kylie[7] who had been unfairly dismissed from a brothel (for supposedly not performing her duties properly) won a landmark case in the Labour Appeal Court. The Court ruled that just because someone worked in an illegal profession, this did not mean they had no rights under the Labour Relations Acts:

[S]ex workers cannot be stripped of the right to be treated with dignity by their clients, it must follow that, in their other relationship namely with their employers, the same protection should hold. Once it is recognised that they must be treated with dignity not only by their customers but by their employers, section 23 of the Constitution , which, at its core, protects the dignity of those in an employment relationship, should also be of application (Labour Appeal Court of South Africa 2010, Case No. CA10/08, paragraph 26).

This judgement was preceded by the ‘Jordan v. State’ case whereby the High Court ruled that criminalising the selling of sex in itself was unconstitutional, but maintained that brothel-keeping remain criminalised (Southern African Legal Information Institute: 2002). It is such judicial confusion in the interpretation of the Constitution in relation to Section 20(1)(aA) of the SOA that leaves sex workers vulnerable to labour abuses. The disconcerting factor is that while South Africa insists on maintaining criminalisation the International Labour Organisation recognises sex work as a form of legitimate employment and calls on governments to decriminalise the trade in order to ensure sex workers’ access to labour rights (Lim 1998: 212-213).

4.4 Exclusion from development programmes
Discrimination and exclusion of sex workers from community-based development initiatives, burial schemes and money-lending projects have also been reported. This sentiment was echoed by sex workers in Limpopo: ‘organisations to assist in setting up microfinance schemes that would specifically loan money to sex workers so that they could start their own businesses’ (ASWA 2011: 60).

Even in instances whereby an NGO has financially supported a sex worker through training they are sometimes refused by learning institutes to complete their in-service practicals, because of their criminal records under the SOA. This was the case with a Cape Town-based sex worker Buhle[8] (not her real name). SWEAT and Sisonke run an adult learning programme that funds sex workers who want to either complete their higher education or train in an artisan skill. Buhle was awarded one of the scholarships to attend a catering course. After passing her written exam she was expected to go through in-service training with a local catering company. However, because of her criminal record she was not able to do her practicals and graduate from the course[9].

4.5 Impact of criminalisation on sex workers’ well-being 
A female sex worker in Limpopo recalls being ridiculed by children in public for being a sex worker:

lt happens to me waiting for a taxi to go to town: small kids 10 years old asking me to have sex, saying “l have 10 rand”. So l refuse and they start to shout at me that, “You sleep with our fathers at night!” (ASWA 2011: 45).

It is apparent that for the general public criminalisation of sex work lends legitimacy to the humiliation and abuse of sex workers. Since sex workers are labelled criminalise the public (children included) feel justified in abusing them. Understandably so, sex workers fear being exposed; a fear which ‘entrenches a deep reluctance to be public about their experiences and to claim their rights’ (ASWA 2011: 50). This has a detrimental effect on their sense of self-respect and mental well-being.

5. Conclusion and decriminalisation

Therefore, a policy such as the criminalisation of sex work can be said to go against the human development paradigm and capability approach. Not only do sex workers’ experience limited access to critical socio-economic resources (such as health, justice and labour rights), but their sense of human well-being is completely undermined. Even though the sex worker is an active agent (choosing to have multiple sexual partners), criminalisation insists on defining them either as (at best) a shared victim of sexual exploitation, or (at worst) a criminal (Alexander 1997: 120). Therefore, the sex worker is denied any freedom in deciding their own livelihood strategy or any form of sexual agency.

lf sex work is allowed you would be working freely just like other jobs and you cannot be stigmatized by the community and police (ASWA 2011: 61).

These words [point to slide] are echoed by other sex workers forming the movement Sisonke. However, it would seem that ‘[p]olicy decisions affecting sex workers are often made without consulting sex workers’, (Ditmore 2010: 242). Instead, the views of so-called ‘gender experts’ are given precedence, when in fact sex workers are experts of their own lives.

This paper concludes that the country’s history of racial and sexual oppression continues to be woven into South Africa’s contemporary law and into sex workers’ bodies even in this post–apartheid era, and therefore calls for the decriminalisation of sex work.

Decriminalisation of adult, consensual sex work would see sex work being regarded as ordinary work, which allows the industry to be governed by existing labour and business laws intended to prevent unsafe, exploitative and unfair business practices. With that said, abusive practices such as under-age and coerced sex work would remain criminal offences under decriminalisation.

This is what sex workers in South Africa want.

Thank you.

[Bibliography on PowerPoint]

Endnotes:

[1] Apartheid was a system of racial segregation in South Africa enforced through legislation by the National Party (NP), which was the Afrikaner minority ruling party from 1948 to 1994.

[2] Sexual Offences Act ‘Adult Prostitution’ Law Reform Project (107): http://www.justice.gov.za/salrc/dpapers/dp0001-2009_prj107_2009.pdf

[3] ‘“I expect to be abused and I have fear”: Sex workers’ experiences of human rights violations and barriers to accessing healthcare in four African countries’: http://www.plri.org/sites/plri.org/files/ASWA_Report_HR_Violations_and_Healthcare_Barriers_14_April_2011.pdf

[4] ‘ “Stop Harassing Us! Tackle Real Crime!”: A report on Human Rights Violations By Police Against Sex Workers In South Africa’ (2012): http://www.wlce.co.za/index.php?option=com_content&view=article&id=151:a-report-on-human-rights-violations-by-police-against-sex-workers-in-south-africa-&catid=55:press-releases&Itemid=83

[5] Full section cited earlier in the paper.

[6] The 2007 NSP had called for decriminalisation of sex work, but the final 2012 version had this recommendation removed.

[7] Kylie was her pseudonym.

[8] Not her real name.

[9] This case study is drawn from my own experience at SWEAT, and interaction with Buhle.

About PECANS
PECANS is a network of research students and early career academics working in the fields of Law, Gender and Sexuality, broadly conceived. PECANS has in recent years hosted a number of reading groups and a yearly workshop aimed at broadening participation, strengthening research networks, and nurturing interdisciplinary in the broad arena of law, gender and sexuality. For more information visit: http://www.clgs-pecans.org.uk/.