The ANC discussion paper on gender flags the debate on prostitution and says: “The ideal approach of the ANC will be for the support of a position that will embrace the dignity of women.”
Hlengiwe Mkhize, the national treasurer of the ANC Women’s League, was quoted in the media as expressing the hope that a resolution would be passed at Mangaung decriminalising sex work. While I doubt that the ANC would be calling for total decriminalisation, there is merit in the call for the decriminalisation of the selling and not the buying of sex. This position takes into account the underlying causes that drive women, mainly poor women, into prostitution and how patriarchy and economic inequality produce and reproduce the conditions that frustrate women’s life chances and choices.
Power imbalances create the conditions where a man has the means and can exercise the choice to “buy” a woman. Does the fact that a poor woman, who sells sex from a position of a lack of power and choice, not merit different treatment in the law from a man who buys sex? Does criminalising her not render her a double victim – of the man who exploits her and a criminal justice system that disregards her circumstances? On the other hand, how do we prevent a man with the economic means and power from buying sex or a third party from profiting due to this sexual exploitation of women?
While some may argue that criminalising the buyer removes a woman’s only choice to earn a living, this should rather remind us of our duty as a society to create better opportunities, and real choice, for women and girls. This debate around prostitution needs to broaden. Women have suffered for millennia through patriarchal systems of exploitation, including prostitution and other forms of sexual exploitation.
“Sex workers” have been finding a voice and demanding their rights to decent work, dignity and an end to exploitation. The ANC and Cosatu have taken up the challenge, and put this issue on the table. This is a debate that needs to happen at all levels of our society. It a difficult issue, involving sex and taboos, but we cannot afford to respond with avoidance, denialism and lethargy as was the case with HIV/Aids. If we can discuss and debate the complex issues raised, we can mobilise society and make major advances towards real gender equality.
The ANC calls for a solution that would enhance women’s rights to human dignity and gender equality. This calls for a deeper understanding of what these rights and concepts mean. We need to shine the light on the intersection between economic inequality and patriarchy, which mitigate against women’s realisation of their rights. The ANC stresses the importance of addressing the underlying causes frustrating gender transformation, highlighting the persistence of patriarchal thinking and the continuation of institutionalised sexism.
The SA Law Reform Commission has been working on four legislative options for prostitution, reviewing more than 2 000 submissions in the process. However, the final decision is a political one, and will be informed by this debate.
The four options put forward are: total criminalisation; legalisation; partial decriminalisation; and total decriminalisation.
Embrace Dignity is advocating for partial decriminalisation. This position is informed by an understanding that prostitution is inherently harmful to women and society in that it objectifies all women and perpetuates patriarchy.
Partial decriminalisation shifts the burden of criminality from the seller to the buyer and the commercial sex entrepreneur who profits from the sexual exploitation of women. It recognises that the lack of options forces poor women into prostitution, and supports exit. While we uphold the value of fairness in the treatment of parties to the same crime, we argue that the law must take into account the underlying causes that drive women into prostitution, instead of re-victimising them.
We see this as a pragmatic and radical feminist position, seeking not to decriminalise the institution of prostitution but to dismantle it and provide a major impetus towards ending patriarchy.
This debate requires more than merely a change in law. It speaks to the need for engaging honestly with deeper issues of gender and how these play out in terms of economic inequality and patriarchy. It raises the need to address the absence of choice for most women involved in prostitution. We seek to end the world’s oldest oppression.
Nozizwe Madlala-Routledge was a founder and chairwoman of the Natal Organisation of Women and served as deputy minister of defence and of health and as deputy speaker in the National Assembly. She is currently an independent consultant and executive director of Embrace Dignity, an NGO addressing trafficking and sexual exploitation.