The long awaited report of the South African Law Reform Commission (SALRC) on adult prostitution was released on Friday.
The SALRC undertook the report with the aim of reviewing the fragmented legislative framework that currently regulates adult prostitution in the country. The report, which also explores the need for law reform in relation to adult prostitution, was approved by Cabinet in April.
The report, which took two years to complete, found that prostitution in South Africa is driven by a complex interplay of social and economic drivers that include poverty, inequality and unemployment.
It indicates that exploitation, particularly of women, is inherent in prostitution and depends on contingent external factors related to gender violence, inequality and poverty, and that such exploitation does not arise merely in response to the legislative framework.
The report concludes that changing the legislative framework could create an “extremely dangerous cultural shift”, given the high rate of sexual crimes that are being committed against women and may render them even more vulnerable than at present.
The report also notes that the prevalence of prostitution in society and the inherent exploitation associated with it are primarily social phenomena, which reflect deep-seated economic and sexual inequalities.
This situation is perpetuated by the limitations in the laws that are supposed to deal with these social issues.
Despite mounting public and official concern about prostitution, the report found that South Africa has no clear strategy for dealing with prostitution, either on a primary and preventative level or on a secondary and intervention level.
Policy recommendations on adult sex work
For this reason, the report contains both legislative and non-legislative recommendations. Two recommendations are to keep the practice totally criminalised or partially criminalising sex work.
The first option, which is to retain a totally criminalised legal framework, is coupled with an opportunity for people in prostitution to divert out of the criminal justice system so that they can access supportive resources and systems in order to exit prostitution, if they should choose to do so.
The second option, which favours the partial criminalisation of adult prostitution, criminalises all role players engaged in prostitution, with the exception of the person providing the sexual service.
Speaking at the release of the report on Friday in Pretoria, Justice and Constitutional Development Minister Michael Masutha said adult prostitution is an emotive topic that is fraught with complexities and unwavering viewpoints in its various forms and manifestations. These complexities include the definition of what constitutes prostitution.
“Many people have different opinions on the issue. Therefore, it is important that we take the initiative to consider public opinion on the legal framework around prostitution and that we mobilise society to contribute to finding a lasting solution – a solution within the ambit of the Constitution.”
The Minister stressed that meaningful public consultation on the topic of adult prostitution is imperative.
He said while government has a constitutional responsibility to promote the values of human dignity, the achievement of equality and the advancement of human rights and freedoms, it was not constitutionally bound to change the existing law and that the report was not a policy decision of government.
“Government is not constitutionally obligated or bound to change the existing law or to follow a particular model. It is a policy choice and there are a range of legal responses possible to address prostitution in open and democratic societies. A change of the law will only be embarked on if a policy decision has been made and [the] matter has been properly interrogated in Parliament.”
Public consultation key to deciding way forward
Minister Masutha said it was important to get public comment on the report because changing the laws related to prostitution without the proper consideration of the impact thereof could leave those who do sex work more vulnerable.
“Within the current South African context, the debate around adult prostitution has been complicated by a number of socio-economic factors which include poverty, inequality, unemployment and crime.”
Currently, the selling and buying of sexual services is criminalised in various sections contained in two separate laws, namely the Sexual Offences Act and the Criminal Law (Sexual Offences and Related Matters) Amendment Act. There are also various by-laws which directly or indirectly apply, such as certain municipalities using the “riotous behaviour” or “loitering” by-laws to remove or prosecute sex workers.
Government and other organisations advocating the rights of sex workers are of the view that the legislative proposals contained in the report will improve the present system as it applies to adult prostitution and ease some of the complex realities faced by South Africans engaged in prostitution such as the socio-economic marginalisation of women and the impact of the HIV/Aids pandemic.
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