Decriminalising Prostitution

Decriminalising prostitution – the answer to our country’s problematic pandemic?

In April, a journalist published an article “My night in a Durban North brothel” as part of an investigation into the lives of prostitutes. At the International AIDS Conference held in Durban in July, great focus was placed on whether prostitution should be decriminalised or not. Many proponents of the legalisation of prostitution feel that it will combat the AIDS pandemic in our country.

Should prostitution be legalised in South Africa?

What does the law say about prostitution?

Section 22 of the Constitution states that every citizen has the right to choose his/her trade, occupation or profession freely.  It further states that the practice of a trade, occupation or profession may be regulated by law.

Prostitution is illegal and punishable

In terms of sections 20 and 20A of the Sexual Offences Act 23 of 1957 (hereinafter referred to as “the Act”), prostitution is illegal in South Africa.  In terms of section 2 of the Act, keeping a brothel is also illegal. In terms of section 20(1A)(a) of the Act, unlawful carnal intercourse for reward constitutes a criminal offence which attracts a criminal penalty of imprisonment of no more than three years and a fine of no more than R6 000.00.

Should prostitution be decriminalised?

Deputy President Cyril Ramaphosa wants to institute a plan, the South African National Sex Worker HIV Plan, to regulate prostitution, with the main aim being the reduction of HIV among prostitutes.

The plan aims to sensitise healthcare providers, social workers and law enforcement officials on the right of sex workers to quality care, confidentiality and consent, by:

• Increasing HIV testing to 90% of SA’s 153 000 prostitutes in the industry.
• Recruiting a team of 1 000 peer educators to facilitate access to legal services for, and provide human rights support to prostitutes.
• Increasing the use of condoms by prostitutes to 95%.

What do the courts say?

The Constitutional Court: S v Jordan and Others [2002]

In S v Jordan the matter did not focus on the constitutionality of prostitution, however, the court confirmed that the Act pursues an important and legitimate constitutional purpose, namely, to outlaw commercial sex.

What anti-prostitution activists say:

• The decriminalisation of prostitution is not necessary for HIV interventions – all social and health services are already available to sex workers.
• To decriminalise sex workers is to destroy family life and bring the emergence of a new class of citizens that will eventually sustain further social and constitutional problems for our country.

What the proponents of prostitution say:

Those in favour of decriminalisation refer to other countries where such policies have worked.  The Sex Workers Education & Advocacy Taskforce (SWEAT) has hailed the Sex Work Plan as “encouraging” and has looked to the New Zealand and Australian model for South Africa. These two countries have instituted the following:

• Criminal charges for prostitution are removed.
• Brothels and single prostitutes can operate as ordinary businesses.
• Laws protecting prostitutes from special risks are put in place.

Health and social services are available to all.  Those who are vulnerable and do not have sufficient access to these services must be taken special care of, to ensure that these services are afforded to each member of society. We agree with the Constitutional Court that the Act pursues an important and legitimate constitutional purpose, namely, to outlaw commercial sex.

Will decriminalising prostitution solve our country’s HIV problem?