It is illegal to buy or sell sex in South Africa. But this may soon be a thing of the past if a recently published draft bill to decriminalise sex work is passed. Researchers and activists Marlise Richter and Monique Huysamen set out what's in the new law, what's good about it and what still needs work.
What's envisaged under the proposed new law?
If the Criminal Law (Sexual Offences and Related Matters) Amendment Bill 2022 is passed, South Africa will become only the second country in the world to fully decriminalise sex work. It would no longer be illegal to buy or sell sex. New Zealand is the only other country where this is the position.
The draft law proposes the removal of the criminalisation of buying and selling of sex. It also proposes to clear the criminal records of those who have been prosecuted for buying or selling sex.
Predictably, various groups have pushed back against the bill, mostly on moral grounds. Opponents of the bill recommend that either:
- the current law that fully criminalises all aspects of sex work remains in place; or
- that sex workers are decriminalised but that clients remain criminalised.
This last idea is drawn from what's called the "Nordic model" - an approach followed by some Nordic countries, including Sweden.
Why is full decriminalisation in South Africa so important?
Women in South Africa face very high levels of gender-based violence. Female sex workers are even more exposed than other women. A recent study showed that 70% of female sex workers had experienced violence in the past year. More than half had been raped by intimate partners, police, clients or other men. Criminalisation normalises violence in the sex work context.
Another argument for decriminalisation relates to health. HIV prevalence of between 39% and 89% has been documented among female sex workers across different areas of South Africa in the last decade. This is extremely high when compared to the country's national HIV prevalence rate of 13.7%.
Sex workers are particularly vulnerable to HIV infection because of the many dangers associated with sex work in a criminalised context. Sex workers typically have many sexual partners. Their working conditions are precarious and unsafe. And the unequal power relationship between sex worker and client makes it very hard to consistently negotiate safer sex.
The social stigma attached to sex work also means that some healthcare providers hold prejudiced and vindictive views against sex workers. These views can drive sex workers away from health services, including HIV prevention, treatment and support.
The repeal of outdated apartheid-era laws would have a far-reaching, positive impact on individual sex worker health and well-being and therefore also public health.
If sex work was not a crime, clients and police wouldn't have the power to abuse sex workers. Sex would be able to regularly negotiate safe sex. Police would have to take their complaints seriously. Sex workers would also feel more confident to report discrimination and disrespectful healthcare workers.
Under decriminalisation, sex work would be recognised as work. Occupational health and safety and fair labour principles would apply. Decriminalisation is particularly important for the dignity of poor black sex workers from working class backgrounds, who currently bear the brunt of the stigma associated with the criminalisation of sex work.
What is the Nordic model?
The Nordic model is a legal framework adopted by several Nordic countries, including Sweden and Norway.
According to this approach, selling sex should be decriminalised, but buying sex remains a crime.
The model assumes that criminalising the clients of sex workers would dissuade people from buying sexual services, and thus end the demand for sex work.
Research in countries that have adopted this shows that it has not made sex work safer for sex workers, nor has it eradicated sex work. Evidence also shows that criminalisation of clients is bad for sex workers' health.
If buying sex is illegal, sex workers have less time to screen out dangerous clients and clients can put pressure on sex workers to agree to risky transactions in compromising situations.
South Africans have had painful lessons about why the state has no business in people's bedrooms. The apartheid-era state prohibited sex across "colour" and "same-sex" configurations which South Africa subsequently strongly rejected under democracy. Yet this same law still survives for adult, consensual sex work.
Why arguments against criminalising clients should be resisted
Our research shows that while most of the clients of sex workers in South Africa are men, they are a diverse group from all walks of life. Some are violent and abusive towards sex workers. But many are not. Some sex workers report having mutually respectful interactions and contracts with clients.
In our research, very few men self-reported perpetrating violence against sex workers. Most actively distanced themselves from the violence associated with men who pay for sex, making it clear that they did not engage in or condone violence against sex workers.
Based on our research and that of others, we believe that the decriminalisation of clients would have positive spin-offs.
First, recruiting clients who have been identified by sex workers as non-violent and respectful as peer educators could instil and reinforce positive norms among clients.
Second, clients are well placed to serve as whistle-blowers when they notice human rights violations such as human trafficking or child exploitation in the sex industry.
Third, clients can be key to reducing HIV transmission. Scaling up antiretroviral therapy among clients of sex workers would avert almost one-fifth of new HIV infections in South Africa over the next decade.
Read more: Why South Africa's HIV prevention programmes should include sex worker clients
The Nordic model is flawed and demonises clients. Putting sex work clients in jail punishes them for buying a service. This is ultimately bad for everyone's health.
The draft bill should be passed as it is and as quickly as possible.
It will make sex work less risky and dangerous, and our society safer.
Marlise Richter, Research fellow, African Centre for Migration & Society, University of the Witwatersrand
Monique Huysamen, Senior Research Associate in Sexual and Reproductive health, Manchester Metropolitan University