Why is decriminalising prostitution a bad idea?

Persons in prostitution are people with rights. May their human dignity never be for sale!

Recently, there has been a rise in discussions about the possible reform of South African prostitution laws. The mere fact that these discussions are being held, indicates that there is disagreement about what the legal position of prostitution and all prostitution-related activities should be. Some argue that full criminalisation, which is the regime currently followed in South Africa, is not the most desirable or effective legal approach to prostitution.

South Africa is a liberal constitutional democracy. In terms of the Bill of Rights, the constitutional rights of all people within the borders of South Africa must be promoted and protected.

If fully criminalising prostitution is unconstitutional, the current anti-prostitution laws need to be reformed. If it can be shown that the harms experienced by persons involved in prostitution can be reduced or eradicated by decriminalising prostitution, legal reform may still be desirable on the basis of policy grounds (even if fully criminalising prostitution is constitutional).

In the leading case of S v Jordan (2002), the Constitutional Court found that the right to human dignity, equality, freedom and security of the person, privacy, and freedom of occupation or trade, is not infringed by fully criminalising prostitution. Fully criminalising prostitution is therefore constitutional.

The Court held that the Constitution places an especially high value on human dignity since it is a fundamental and inseparable part of what it is to be human. For this reason, the human body may never be commodified. The very nature of prostitution requires the commodification of the human body. It is therefore inherently degrading and dehumanising.

The Court held that the right to human dignity requires the human body to be respected and that to “…the extent that the dignity of prostitutes is diminished, the diminution arises from the character of prostitution itself. …The very character of the work (prostitutes) undertake devalues the respect that the Constitution regards as inherent in the human body.” The very act and activity of prostitution itself is an infringement of the right to human dignity.

Prostitution undermines the humanity of the person engaged therein. One user of prostitution described it as renting an organ for a few minutes.

During 2017 the South African Law Reform Commission (SALRC) released an extensive and thoroughly researched report concerning the sexual offence of adult prostitution. In preparation of its report, the SALRC ensured that a thorough process of public participation and consultation was held. Thereafter it applied its carefully collected body of research, feedback and findings to the South African context.

The SALRC found that prostitution is inherently exploitative in nature. It is caused mainly by desperate socio-economic circumstances that force vulnerable and marginalised people (mostly women) to make a last resort choice to enter prostitution as their only means of survival. If we are serious about promoting and protecting the human dignity and other rights of persons in prostitution, we will focus on addressing the causes of prostitution: socio-economic inequality (especially gender inequality and discrimination and poverty).

The SALRC recommends that prostitution and all prostitution-related activities remain fully criminalised and that priority is given to the development and implementation of strong diversion programs that enable persons to successfully exit prostitution. It also states unequivocally that prostitution can never be regarded as work. It cannot be seen as a reasonable employment option for the poor and marginalised.

In Germany prostitution is a legally recognised form of “work”. Under German law, any woman under the age of 55 years who has been unemployed for more than a year, may lose her unemployment benefits should she refuse to take up available employment positions. Since prostitution is seen as normal “work”, German women may now potentially be forced into the sex industry. This is not a mere academic scenario: a 25-yearold German waitress faced losing her employment benefits because she turned down a position at a bar when she realised that the bar was actually a brothel. Unfortunately, her case is not an isolated incident.

International researchers, such as Dr Melissa Farley, emphasise that the very nature of the activity of prostitution itself makes it the inherent human rights violation that it is. According to Dr Farley, the SALRC and other experts and organisations working in and studying the field of prostitution, prostitution is inherently extremely physically violent and psychologically traumatising. Prostitution degrades and breaks human beings and damages communities.

It cannot be reiterated enough: no legal regime can change the nature of prostitution or the harms that are necessarily caused by it. The harms of prostitution are not caused by the law, but by prostitution itself. These harms will continue to exist wherever prostitution exists. The law is not the cause of the problem, but a means to address and prevent the severe and significant detrimental effects of the real problem: prostitution. The law can only respond and try to protect the human beings (and their rights) that are being violated by prostitution.

If we are serious about effectively promoting and protecting the human rights of persons in prostitution, and persons in communities where prostitution takes place, we will focus on reducing and eradicating prostitution. We will establish what the real causes of prostitution are and address these causes: the desperate socio-economic circumstances faced by millions of South Africans.

The academic research conducted by Dr Farley and other international researchers show that decriminalising prostitution does not address its associated harms. In countries where prostitution has been decriminalised or legalised (subject to regulation) the physical and psychological detrimental effects and circumstances of prostitution continue. In fact, research evidence shows that the circumstances of persons in prostitution often become worse while the exploitation and abuse continue hidden behind a façade of “legal business activities”.

In New Zealand, law reforms sought to improve the circumstances, health and safety of those in prostitution. Research suggests that persons in prostitution are still being raped and many feel that they are not in a position to refuse a “client’s” requests. Since prostitution is regulated in New Zealand, failure to comply with safe sex practices may result in incurring of a fine for up to NZD2 000. In Australia, an increase in the aggression of “clients” has been noted: it seems that “clients” are emboldened and feel more entitled when prostitution is no longer criminalised.

Based on the research evidence and the findings of the Constitutional Court in S v Jordan, it is plain that decriminalising prostitution will fail to address its associated harms and will not protect or promote the human rights of persons in prostitution. The harms will most likely worsen or simply continue hidden and unnoticed. There are therefore no solid policy grounds, on the basis of which it can be argued convincingly, that the reform of South African prostitution laws is desirable or necessary.

Decimalising prostitution will send the following socially irresponsible and reprehensible message: in South Africa the use and renting of the human body for the purposes of the sexual gratification is legally acceptable because, in South Africa, humans (and human dignity) has a price.

It is not acceptable that vulnerable and marginalised persons (most often women) should be driven into prostitution, an inherently exploitative and degrading practice, in an attempt to survive desperate socio-economic circumstances.

The socio-economically vulnerable and marginalised are persons. People engaged in prostituting are persons. They have inherent and inalienable rights, including the right to human dignity.

May the law lever condone the sale of their human dignity.


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