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 taking place, indicates that there is disagreement about what the legal position of prostitution and 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.
In this blogpost, we look at whether Prostitution should be decriminalised in South Africa, whether on constitutional or policy grounds.
Afrikaans readers can also view a recent television broadcast discussing the issue here: https://www.youtube.com/watch?v=0UBQv-dPgPA
South Africa is a liberal 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. Legal reform may still be desirable on the basis of policy grounds, on the other hand (i.e. even if full criminalisation is constitutionally defensible), if, for example, it can be shown that the harms experienced by persons involved in prostitution can be reduced or eradicated by decriminalising prostitution.
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 in a constitutionally impermissible manner by fully criminalising prostitution. Fully criminalising prostitution is therefore in line with the Constitution.
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 is 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 “[T]o…the extent that the dignity of prostitutes is diminished, the diminution arises from the character of prostitution itself. …The very character of the work they (prostitutes) undertake devalues the respect that the Constitution regards as inherent in the human body.” The act of prostitution is an infringement of the right to human dignity.
Prostitution undermines the humanity of persons 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 obtained wide public participation and 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. Its main cause is the 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 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 effective diversion programmes 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-year old 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.
International researchers, such as Dr Melissa Farley, emphasise that the very nature of the activity of prostitution makes it a human rights violation. According to Dr Farley, the SALRC and other experts and organisations working in and studying the field of prostitution, prostitution is characterised by extreme physical violence and psychological trauma.
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 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, 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 also no solid policy grounds based on which it can be argued convincingly that the reform of South African prostitution laws is desirable or necessary.
Decriminalising prostitution will send a socially irresponsible and reprehensible message that 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, 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 never condone the sale of their human dignity.