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Kgomotso Matsunyane and Oratile Moseki
It is time to move on and consider the evidence on sex work. We are disappointed to note that the ANC Women’s League has decided to retract what appeared to be support for the decriminalisation of sex work, stating that “more engagement” on the issue was needed.
While respecting their decision, SWEAT and our decriminalisation supporters say it’s about time the controversies plaguing the issue were dealt with.
There is a shift in focus towards evidence that supports total decriminalisation, and we say that at the heart of these issues are sex worker voices, choices and needs.
This information is supreme in that it comes from the experiences of the sex workers themselves.
It is a little known fact that the ANC first seriously considered options to legalise sex work 18 years ago in 1996, when “decriminalisation” or alternatively “legalisation of sex work” was discussed.
The issue proved too controversial to decide upon and has evolved into a call for the “dignity of women” as articulated in the ANC gender discussion document.
Controversies around women’s issues, gender and economic inequalities are not uncommon and come with the territory.
They should not be feared by the ANCWL.
In all such cases strong and brave leadership is needed to defend women’s rights and will be needed here in order to move beyond the impasse of 1996.
The ANCWL has such leaders: during Cosatu Gender Conference deliberations in March, Women’s League President Angie Motshekga spoke out on radio and in session saying women must discuss the issues that affect them, no matter how controversial they are.
The ANCWL has come one step closer to empowering women by acknowledging that criminalising sex workers does not work.
Now is the time to move beyond that. We can’t afford to wait another 18 years.
Yes, we agree with the ANCWL that it is time to engage. It is time to engage sex workers who can and do speak for themselves and are completely capable of knowing what is in their best interests, and of making decisions about their lives.
This is a fundamental right that we build our argument on. Sex workers are family members, parents, churchgoers and community leaders.
Partial criminalisation, in which the client is criminalised and not the sex workers, is a law reform which is based on the assumption that women are incapable of making decisions about their lives; that they need to be “rescued”.
It is a law reform option that totally objectifies women, while completely disregarding their agency. In this sense it is worse than criminalisation, where although considered a crime, at least the law acknowledges that sex workers are capable of choosing to do it. Taking the views of the sex workers out of the equation provides the most demeaning legal view of women and reinforces patriarchal control of women’s choices and bodies.
If the ANCWL wants to empower women, to challenge patriarchy, to show that women are just as capable as men of designing and deciding their own destinies, it certainly should not support partial criminalisation.
Criminalisation of sex work, which has been in place for 55 years and is founded on “moral” values with little evidential support, has crippled any traction on the issue.
In an interview recently, Motshekga admitted their reluctance has been as a result of league members not knowing what the implications of law change would be (The Star Monday June 18, 2012, “Searching for Common Ground”).
Moral views without any basis in fact are dangerous and South Africans know this first hand from our experience of apartheid, for instance, which was a policy decision rooted in morality and beliefs without basis. We have moved on from there, and have since made decisions in spite of the controversy surrounding them.
So, what is the evidence?
Let us consider two common concerns to illustrate our point.
The first is the belief that decriminalising sex work will lead to an increase in the numbers of sex workers, particularly of younger women. There is no evidence to show that decriminalising sex work has any effect on the numbers of sex workers.
In fact, no legal system at all has been shown to do this.
Research in Australia, where in some states sex work is legalised, in another it is criminalised and in one other decriminalised, there is no difference in the percentage of sex workers in relation to the general population. Research from New Zealand shows that after sex work was decriminalised in 2003, there has not been a significant increase in the numbers (Basil Donovan, et al., The Sex Industry in Western Australia: A Report to the Western Australia Government vii, 6, 9 ).
The other common fear is that decriminalising sex work will lead to higher rates of trafficking.
This too has been shown not to be the case. Firstly it must be said that sex work and trafficking are not the same thing. Sex work is adult, consensual and done in private.
Trafficking has to do with forced work and exploitation. A five-year review of decriminalisation in New Zealand has shown no evidence of an increase in trafficking, or of more under-age sex workers (New Zealand Ministry of Justice, ‘Review of the Prostitution Reform Act 2003’, May 2008.)
Other such research also exists.
The fact is, sex workers don’t want crime just as much as the next person, and by decriminalising it, sex workers can openly report crimes such as trafficking and child sexual exploitation without fearing prosecution.
In no other legal system is the opportunity for sex workers to expose crime as great as it is in decriminalisation.
SWEAT encourages policymakers to use five key criteria when considering any sex work law or policy. We believe we can agree on these.
The first thing to consider when reviewing a possible law is whether it protects sex workers from police abuse. Secondly, does the law make sex workers vulnerable to labour exploitation?
Thirdly, does it make it difficult for sex workers to exit the industry freely? Fourthly, can sex workers access respectful health care and other services?
And finally, can the police tackle real crimes like trafficking and child exploitation effectively, and can sex workers report them?
There is more evidence, and a lot of experience in the area to guide our lawmakers.
There is no better time than now.
n Matsunyane is SWEAT Board Member and Moseki is Advocacy & Human Rights Defence Manager at SWEAT