Commission for Gender Equality

Commission for Gender Equality Joint Multi Party Women’s Caucus in Parliament 17 August 2016

CGE Mandate The CGE is an independent statutory body established in terms of Section 181 of the Constitution of South Africa, S187 of the Constitution and CGE Act No. 39 of 1996 (as amended) require the CGE to promote respect for, and the protection, development and attainment of gender equality. The CGE vision is a society free from gender oppression and all forms of inequality The CGE mandate is to monitor and evaluate legislation, policies and practices of the state, statutory bodies and private businesses, as well as indigenous and customary laws and practices; research and make recommendations to Parliament; receive and investigate complaints of gender discrimination; and conduct public awareness and education on gender equality. CGE has powers of subpoena and litigate

CGE Mandate One of the CGE focus areas is Gender Based Violence, which includes responding to the abuse and violation of rights of sex workers The current legal position in South Africa has resulted in the criminalization of sex work. Engaging in sex work is illegal and will lead to criminal prosecution of sex workers, buyers of sexual services, and any other associated stakeholders. Sex workers experience abuse and violation of numerous Constitutional rights, and acts of violence and abusive treatment, often at the hands of police officers.

Current Legal Position in SA The current legal position in South Africa has resulted in the criminalization of prostitution. Engaging in sex work is illegal and will lead to criminal prosecution of sex workers, buyers of sexual services, and any other associated stakeholders. Sex workers experience abuse and violation of numerous Constitutional rights, and acts of violence and abusive treatment, often at the hands of police officers.

Current Legal Position in SA • The Sexual Offences Act • Prior to amendment in 2007, section 20(1) of the Sexual Offences Act read as follows: • “ Section 20 (1) • Any person who— • knowingly lives wholly or in part on the earnings of prostitution; or • (aA)has unlawful carnal intercourse, or commits an act of indecency, with any other person for reward; or • in public commits any act of indecency with another person; or • in public or in private in any way assists in bringing about, or receives any consideration for, the commission by any person of any act of indecency with another person, • shall be guilty of an offence.”

Current Legal Position in SA Subsequent to amendment in 2007, section 20(1) reads as follows: “20. Persons living on earnings of prostitution or committing or assisting in commission of indecent acts.—(1) Any person who— (a) knowingly lives wholly or in part on the earnings of prostitution; or (c) in public or in private in any way assists in bringing about, or receives any consideration for, the commission by any person of any act of indecency with another person, shall be guilty of an offence. (1A) Any person 18 years or older who—

Current Legal Position in SA • has unlawful carnal intercourse, or commits an act of indecency, with any other person for reward; or • in public commits any act of indecency with another person, shall be guilty of an offence. • (2) If it is made to appear to a magistrate by information on oath that there is reason to suspect that any house is used for purposes of prostitution and that any person residing in or frequenting the house is living wholly or in part on the earnings of prostitution, the magistrate may issue a warrant authorizing any police officer not below the rank of sergeant to enter and search the house and to arrest that person.”

Current Legal Position in SA The crucial differences between the two versions of section 20 is that the current version of section 20 only deals with people who are over the age of 18 years of age. The issue of child prostitution is now dealt with in the Sexual Offences Amendment Act which came into effect on 16 December 2007. Apart from differences in the formulation of section 20, other crucial changes in the legislative environment is the inclusion of section 11 of the Sexual Offences Amendment Act which now criminalises the purchasing of sex. This section criminalises the actions of clients of adult prostitutes by providing that a person who engages the services of a person 18 years or older for financial or other reward, favour or compensation for the purpose of engaging in a sexual act is guilty of an offence.

Current Legal Position in SA The inclusion of section 11 effectively addresses the issue that section 20(1)(aA) was unfairly discriminatory in that it criminalised the selling of sex and not the buying of sex. However, the question remains of whether the effect of the two provisions are identical. It is immediately evident that the legislative provisions do not create identical punitive measures for the two statutory offences.

CGE Investigations The CGE is currently undertaking investigations on basis of complaints lodged but as well as the leg that looks into legislative reform.

CGE investigations The CGE is currently investigating cases lodged on basis of abuse suffered at the hands of the SAPS and an envisaged changing the current legislative framework to provide protections against the abuse The investigation is almost completed, from preliminary findings it has become quite clear that the law is very hard to prove, in order to deal with matters envisaged by section 20 and section 11 (as highlighted previously) and that SAPS utilize municipal by laws related to nuisance; loitering etc to detain females suspected to be “sellers”.

Perspectives on Sex Work and Prostitution • Sex work is a non-stigmatizing term. ‘Sex work’ and ‘sex worker’ are concepts coined by the sex workers themselves to redefine commercial sex as an income generating activity or form of employment. It indicates agency, the right to self determination, and allows for women’s decision making power in a capitalist and patriarchal system. • Prostitution is viewed as coerced sex work, where women have no choice in the matter. It is necessarily demeaning - women are considered victims. • These views have been influenced by liberal and radical feminist thinking on issues of prostitution. Liberal feminists prefer law reform that would lead to the regulation of sex work (e.g. registration, mandatory health checks etc) while radical feminists, who view sex work as an institution of male supremacy and an act of gender-based violence in and of itself, would prefer different solutions for sex work, such as criminalizing buyers of sexual services. • This thinking and such state responses fail sex workers in securing the protection of their basic Constitutional rights, and eliminating their abuse.

International Response: Criminalisation Criminalization (SA, USA and the Middle East) is a position that deems sex work illegal, seeks to reduce or eliminate the sex industry, and is supported by those opposed to sex work on religious, moral or feminist grounds. Sex work and its associated activities result in contravention of legislation, and prosecution by the state. This is also referred to as prohibitionism. A modified response is that of abolitionism. Jurisdictions within this framework (UK, Canada) allow the sale of sex, but ban all related activities (e.g. soliciting, living off the earnings of sex work, brothel keeping, and procurement). This effectively criminalises sex work in practice. Sweden is the first country to implement a partial system, by criminalizing the buyers of sex work, regarding sex work as a form of sexual abuse and an act of violence against women. Proponents of this legal system hope that by targeting the demand side of the sex industry, they may reduce or eliminate it altogether. .

International Response: Legalisation Legalization, or regulation, refers to jurisdictions (primarily in Europe, and many Australian states) where sex work is legal under certain conditions and constraints. Sex work is controlled by government, with such control deemed necessary to protect public order and health, through licensing, registration and mandatory health checks. It is also perceived as a means of reducing crimes associated with sex work (e.g. organized crime, police corruption, child sex work, and sex trafficking). Key indicators of legalized systems entail the existence of sex work-specific controls and conditions specified by the state

International Response: Decriminalisation • Decriminalization/non-criminalization advocates the repeal of all laws against sex work, and the removal of provisions that criminalize all aspects of sex work. Clear distinction between voluntary sex work, and that involving force, coercion or child sex work, which should remain criminalised. • Sex work recognised as legitimate business, regulated under conventional employment and health regulations, with sex workers enjoying same rights – and responsibilities – as other workers. • Typically results in a shift in power and emphasis away from the state and clients, to sex workers themselves, respecting their human rights, and improving their health, safety and working conditions. Removes social exclusion rendering sex workers vulnerable to exploitation • Proponents of decriminalization (New Zealand, one state in Australia) argue that the cost of keeping sex work illegal outweighs the gains, that regulation constitutes violation of civil liberties, and that sex work should be seen as consenting behavior between adults

Constitutional impact of Criminalisation The current legal regime of criminalisation of sex work is difficult to implement and enforce, and has not resulted in the reduction of levels of sex work or violence against sex workers. Criminalisation harms the interests of sex workers by denying them their human and constitutional rights, and preventing access to legal protection and enjoyment of labour rights. It has led to harassment and abuse of sex workers at the hands of the police. Current laws and alternative models violate the ff: -Section 10: Human dignity - everyone has inherent dignity and the right to have their dignity respected. -Section 12: Freedom and security of the person - everyone has the right to bodily and psychological integrity, which includes the right to security in and control over their body; - Section 22: Freedom of trade, occupation and profession - every citizen has the right to choose their trade, occupation or profession freely.

CGE: Official Position on Sex Work • CGE unequivocally supports the full decriminalisation of sex work. • This is informed by an analysis of Constitutionally protected, human rights, and international legal obligations, which should be afforded to sex workers. The CGE cannot countenance the denial and abuse of rights of sex workers. • Further supported by state research findings in New Zealand and NSW, Australia, revealing positive impacts of decriminalization of sex work, and refuting commonly held perceptions. • Decriminalisation has not resulted in increase in number of sex workers, and fears of increase in human trafficking and child sex work proven unfounded. Instead, it has empowered sex workers to protect themselves against violence, improved relationship between sex workers and police, and has had no impact on levels of demand for sex work.

Impact of Decriminalisation • Deliver on sex workers’ constitutional and human rights to: • -free choice of work • -form unions and challenge unfair labour conditions • -freedom from discrimination • -highest attainable standard of health • -freedom and security of the person, incl the right to be free from arbitrary arrest and detention, free from violence, and the right to bodily and psychological integrity • Preserve sex workers’ fundamental right to human dignity • Partial criminalising (crimalising buyer only – Swedish model) reveals no reduction in sex work and trafficking; does not deter buyers; resulted in few instances of prosecution of clients; and impacted negatively on sex workers: • -significant increase in stigma and discrimination • -lack of access to health services and reduced condom usage • -increased mobility and displacement, vulnerability, harsher conditions • -continued harassment by police

Policy Implications Law enforcement policy would need to focus greater attention on the safety, security and protection of sex workers. This would entail shifting police resources and capacity from policing, harassment and prosecution of sex work towards protection, respect and enforcement of the rights of sex workers. Policy makers would need to allocate resources for training and capacity building within local law enforcement agencies, to bring about this mindset shift and ensure greater awareness and protection of the rights and safety of sex workers. Policy makers will have to consider educational awareness campaigns and dissemination of relevant information to the sex work industry in general and sex workers in particular, regarding imminent changes to current sex work laws and to ensure greater knowledge and awareness of the rights and responsibilities of sex workers.

Policy Implications (cont.) Effective dissemination of relevant information on a range of vital services for sex workers, such as health care services, legal services and other related support services should be made part of a comprehensive sex work law reform package. A comprehensive review of current labour rights and laws and employment legislation will be necessary to ensure that the rights of sex workers are incorporated into enforcement policies and practices by state agencies, employer and worker organisations. A thorough review of current labour bargaining mechanisms and practices might also need to be undertaken as part of the law reform process to ensure that sex workers enjoy the same rights of access to labour bargaining practices in the labour market.

Policy Implications (cont…) Policy makers need to implement mechanisms to monitor the behavior of police towards sex workers, ensuring adequate powers of investigation and prosecution against police corruption and harassment of sex workers. The focus of policy should be on effective monitoring, investigation and response by law enforcement agencies to protect minors, eliminate and prosecute instances of under-age and coercive sex work and trafficking of women and children, and the exploitation and abuse of sex workers. Finally, it is important for government in partnership with the CGE and civil society to initiate broad public awareness campaigns to educate and sensitise society about the necessary sex work law reforms and associated policy changes. This is crucial to address and transform widespread hostile social attitudes towards sex work and sex workers.

Conclusion • Multiple and conflicting positions on sex work in SA derail the development of comprehensive approach, strategy and legislation on sex work. • Issues of exploitation, morality, agency and choice are at the core of differences articulated. • Point of departure should be the experience and human rights of sex workers, who should be at the forefront of transformation in sex work legislation and industry. • International and constitutional framework regarding the rights of sex workers, and comparative studies on the impact of international approaches and best practice informs the CGE’s unequivocal call for the decriminalisation of sex work as the only viable approach to protecting and promoting the rights and dignity of sex workers.

Conclusion • The SALRC is currently in the process of investigating the legal options and what is critical, is that the final SALRC investigation report, which we believe is with the Minister of Justice, be released and made public. We would encourage this Committee to exercise necessary oversight in this regard. • The CGE supports the call for urgent law reform in relation to prostitution. In this regard, we reiterate our view that consensual, adult sex work should be decriminalised, as the only viable legal option to promote and protect the human rights of sex workers.

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Commission for Gender Equality