Legalising Prostitution: Doing more harm than good?
In December 2017, a resolution to decriminalise adult prostitution was adopted at the ANC National Elective Conference. The adoption of the resolution signals an intention to completely depart from the current South African legal position that prostitution and all prostitution-related activities are criminal offences.
In May 2017, the South African Law Reform Commission (“SALRC”) published an extensive report on adult prostitution. The SALRC critically considers current South African law in order to make recommendations to government on how to develop, improve, modernise and reform South African law. The SALRC report concludes that a choice is to be made between either (1) retaining the total criminalisation of adult prostitution or (2) only partially criminalising adult prostitution by attaching criminal liability to buyers, but not to prostituted persons. It is noteworthy that the SALRC does not consider total decriminalisation to be an option at all.
It is important to consider the constitutional values and public policy that inform the debate and views on what the desired legal position of adult prostitution should be in South Africa.
The promotion of the constitutional values of human dignity and equality and protecting socio-economically marginalised and vulnerable persons, such as prostitutes, was of central importance to the SALRC when considering the most desirable legislative approach to adult prostitution.
Available legislative approaches
The SALRC prefers the total criminalisation of adult prostitution and all prostitution-related activities coupled with an option for diversion. An option for diversion will provide a prostitute with an opportunity to avoid criminal prosecution by choosing to join and then participate in a program which, upon successful completion, will enable her (1) to permanently exit prostitution.
Partial criminalisation only decriminalises the actions of the prostitute. All other prostitution-related activities remain criminal offences, meaning that while the prostitute selling her body for sexual gratification is no longer held criminally liable, the buyer still is. This approach recognises that women are not tradable objects and discourages demand for prostituted services, whilst acknowledging the human element – that there are women in such desperate life situations that they end up exercising the least dignified of all options: the selling of their own bodies.
What should the law say?
In our opinion, the buying of prostituted services should remain criminalised, for multiple reasons. Each woman is a human being with individual identity and inherent value (human dignity/worth). A woman is not an object or compartmentalised body parts which can be sold, no matter how some men may view women in our sexualised culture. It would be dangerous, objectionable and unconstitutional for South African law even to suggest otherwise. Julie Bindell, an English writer and radical feminist, writes that we should “[A]im to create a society in which commercialised, one-sided sexual gratification has no place, because women are no longer deemed saleable objects”. According to Bindell, prostitution cannot be cured: it can only be abolished.
WHY – The nature and effects of prostitution
The harmful effects of prostitution will not be reduced by legislating that prostitution should be regarded as work and conferring work-related rights on prostitutes.
SALRC report found that prostitution is not work, but exploitation because it is inherently exploitative in nature and severely harmful to the women who engage in it. Dr Melissa Farley, an American psychologist who has conducted considerable academic research on the psychological impact of prostitution, writes that “… [i]n prostitution, men remove women’s humanity. Buying a woman in prostitution gives men the power to turn women into a living, breathing masturbation fantasy. He removes her self and those qualities that define her as an individual, and for him she becomes sexualized body parts.” According to Dr Farley, one man saw himself as simply buying the use of an organ for a period of time.
In light of this, prostitution is inherently and severely dehumanising and South African law cannot decriminalise prostitution as it would implicitly condone dehumanising of women. The SALRC report mentions a young woman who sold sexual services for a plate of food. No woman or girl should have to make such a choice.
Similarly, according to South African NGO Embrace Dignity “prostitution is exploitative, … damages those being prostituted and … it is closely linked to violence against women and human trafficking.” Indeed, countries that have decriminalised or legalised (and regulated) prostitution have seen an increase in trafficking, prostitution associated crimes and violence (including sexual violence) against prostitutes.
South Africa has alarmingly high levels of violence and especially sexual violence, against women and girls. It is heart-breaking that many women who engaged in adult prostitution, began prostituting themselves while they were still very young.
According to the SALRC report, the decriminalisation of prostitution “could create an extremely dangerous cultural shift juxtaposed against the high numbers of sexual crimes already committed against women. Women would be considered even more expendable than at present.”
While there are groups advocating that the decriminalisation of prostitution would protect and empower prostitutes, after a long and thorough investigation the SALRC found the opposite. It is also alarming to note a comment by Mickey Meiji, a survivor of prostitution, that a pro-decriminalisation organisation that she previously worked for sacrificed women to prostitution for the agenda of a funder of that organisation while the organisation’s management did not seem to care.
Where to from here?
If we the members of South African society are serious about providing compassionate protection and care to those who are most vulnerable, we simply cannot support any law reforms which will harm, rather than help women in prostitution. If we are committed to the eradication of all forms of violence against women and girls, and to promoting and building a South African society based on the constitutional values of human dignity and equality, we have to start working at solutions for the CAUSES of prostitution and not merely attempt to normalise the SYMPTOMS of society’s failings.
No law reform will cure the inherently exploitative and harmful nature of prostitution. The only way to truly help women (and girls) caught in prostitution is by providing them with opportunities to permanently exit prostitution. The only way to prevent women (and girls) from entering prostitution in the first place is to improve their socio-economic conditions – their CHOICES – to give them better alternatives than to turn to prostitution as a way to survive.
In recognition of the inherently exploitative nature of prostitution, we support the view that all prostitution and prostitution-related activities remain criminalised and, more importantly, that effective diversion programmes be implemented to help women to successfully exit prostitution.
- We recognise that while not all prostituted persons are female, the majority is. For the sake of convenience and continuity we will use feminine pronouns and refer to the prostitute as a female throughout this discussion.