South Africa: Will Decriminalising Sex Work Increase Trafficking?

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In 2003, New Zealand did away with all laws against consensual adult sex work. Activists say South Africa can take a few lessons from it.

Sex work is not "decent work" and not "a reasonable means to secure a person's living", the South African law reform commission declares in its 2017 review of the country's criminal legislation that governs sex work.

It's the commission's task to advise the justice and constitutional development minister on how to improve and develop the law.

All aspects of sex work - the buying, selling and procurement - are illegal in South Africa.

The commission's findings have caused outrage among reproductive health and human rights activists who argue sex workers have a constitutional right to practise their trade.

"Many, many sex workers still choose sex work, even when presented with other forms of work," says the deputy chair of the Sexual and Reproductive Justice Coalition, Tlaleng Mofokeng. "There is something about women who are able to negotiate when they want to work. Sex work has no time limits, you can literally be your own boss, and run your life and organise your life in the way that you want. And let's be honest, sex work, there is a lot of money in it."

South Africa has between 121 000 and 167 000 sex workers, of which 91% are female, a 2013 study commissioned by South Africa's Aids Council revealed.

In 1997, the commission was tasked with exploring the need for law reform in relation to adult sex work in South Africa. The report, which proposes the continued criminalisation of sex work - or the partial decriminalisation of the trade as a secondary option - took two decades to complete and was only published last year.

Under partial decriminalisation, a model that was pioneered in Sweden, it would no longer be a crime to sell sex, but it would be illegal to buy it.

"Exploitation, particularly of women in prostitution, seems inherent in prostitution and depends on the external factors of gender violence, inequality and poverty and is not caused by the legislative framework in which it finds itself," the commission concluded.

But health experts say research shows the exact opposite: that the criminalisation of sex work is strongly associated with increased gender-based violence towards sex workers and significantly higher HIV infection rates.

Between 40% and 72% of South Africa's female sex workers in Johannesburg, Durban and Cape Town are infected with HIV, a 2014 University of California San Francisco study found. Further research, published in The Lancet in 2014, revealed that 6% of the country's new HIV infections can be traced back to sex workers and their clients.

"It is a public health imperative that we ensure that sex workers are healthy and free of HIV infection and that health services are accessible to them," HIV scientist and director of the Desmond Tutu HIV Centre at the University of Cape Town, Linda-Gail Bekker, says. "It's been shown, time and time again, the only way to achieve that is to make sure sex workers' activities are not criminalised."

A study published in The Lancet estimates that decriminalising the trade - which involves the removal of all criminal laws against adult consensual sex work - could prevent between a third and almost half of the world's new HIV infections among sex workers and their clients within a decade. This is because decriminalisation would reduce workers' exposure to violence and police harassment as it would be easier for them to report abuse and access health facilities.

Bekker explains: "The minute one criminalises an activity, health services become less accessible to the people who are involved in that activity because of fear of discrimination."

A case in point, activists maintain, is female sex workers' low uptake of antiretroviral treatment: the San Francisco study shows less than a quarter of sex workers in Johannesburg who have tested positive for HIV have taken up the health department's offer of free antiretroviral therapy. This figure is three times lower than that for HIV-infected women in general in South Africa, according to the Human Sciences Research Council's 2017 household survey.

Health experts also argue that the repercussions of the partial decriminalisation of sex work are equal to that of full decriminalisation. A study released at the International Aids Conference in July in Amsterdam shows that 38% of sex workers in France, where partial decriminalisation was adopted in 2016, now encounter "increased difficulties in negotiating condom use".

"When clients are criminalised for doing something illegal, it makes it more difficult for the person selling the service to work in a safe environment, as the service goes underground and service providers then operate from shady places in order for the clients to not get caught by the police," Nadia Van der Linde of the Prostitution Information Centre in Amsterdam, where sex work is legal, explains.

In New Zealand, where sex work was fully decriminalised in 2003, over 60% of sex workers felt that they were more able to "refuse to provide commercial sexual services to a particular client since the enactment of the Prostitution Reform Act [PRA]", according to a report of the country's 2008 prostitution law review committee.

The research for the report was conducted by the University of Otago's department of public health.

The study found that, when clients requested sex without a condom, "most survey participants reported telling clients that it was the law that they use condoms and over half reported refusing to do the job if the client persisted".

But, says South Africa's Deputy Justice Minister John Jeffery, whose department published the law reform commission's review, the regulation of sex work has to be approached from a broader perspective than mere public health outcomes. "Looking at the issue purely from a health perspective, it might be a 'no brainer' [to decriminalise the trade]. However, looking at the issue holistically, it's much more complicated, particularly when one considers it from a crime, law enforcement and socio-economic point of view."

The commission argues that selling sexual services is often "the result of a choice made in severely limiting socio-economic circumstances and in a context of social inequality" and that decriminalising it could encourage "trafficking for the purpose of prostitution".

In New Zealand, however, the country's law committee found little proof that decriminalisation had led to trafficking. "Despite the perception that most sex workers are coerced into entering the sex industry, only a very small number of sex workers reported being made to work by someone else at the time of entry and thereafter (an average of 3.9%)," the committee writes.

Of an estimated worldwide total of 24.9-million people in forced labour, 4.8-million (19%) are victims of forced sexual exploitation, while most - 16-million or 67% - are victims of the private sector, particularly in the fields of agriculture, construction and domestic work, according to the International Labour Organisation.

The Prostitution Information Centre's Van der Linde argues: "When trafficking occurs in the manual labour industries, we address it by improving people's labour rights and we empower workers so that they can better organise themselves and speak out against abuse. But, what do we do in the sex industry: We make sex work illegal and push it further underground."

Around 93% of sex workers surveyed for the New Zealand report cited money as the reason for both entering and staying in the sex industry. "The most significant barriers to exiting are loss of income, reluctance to lose the flexible working hours available in the sex industry and the camaraderie and sense of belonging that some sex workers describe."

In South Africa, a 2009 study conducted by the Institute for Security Studies among sex workers in Cape Town also found money as the most common reason why sex workers entered the trade: "They remain because sex work offers them the opportunity to earn three to five times more than they could in any other job," the authors state. "It is clear...that the lower the level of education, the greater the difference is between what someone can earn in a 'normal' job and what they can earn in the sex industry."

Jeffery says cabinet has decided not to make a policy choice and that the "issue should be further debated".

"It is not possible to say when this will take place, suffice to say that we are nearing the end of this administration's term and it is unlikely that the consultation process will be concluded before the end of the term."

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