Speaking of Sex Work

Feb 14, 11 Speaking of Sex Work

The FIFA entourage came and went, vuvuzelas are banned at sporting events around the world, that octopus is dead and Soccer City has lost its name and its copper cables. Life, post 2010 World Cup, continues much as it does in sunny South Africa.

Part of the anticipated advantages of hosting this event was the decriminalisation and legalisation of sex work in response to increased demand. There were workshops around the theory and practicalities of regulating sex work but, by July 2010, decriminalisation had not materialized and the discussion seems to have fallen silent – swept under the rug to maintain a relatively easier status quo. After all, the issue of the oldest oppression (I mean profession) raises uncomfortable questions about sex and morality, equality and the complex dynamics of human relationships.

Recently, Kylie v Commission for Conciliation, Mediation and Arbitration ([2010] ZALAC 8) held that sex workers should have the same protection, in terms of dignity and fair labour practice, as any other employee under the Constitution and certain provisions of the 1995 Labour Relations Act. However, the Labour Appeal Court was also very quick to point out that it was not sanctioning the decriminalisation of sex work. Even the Constitutional Court cannot imagine sex workers as anything other than criminal (S v Jordan [2002] ZACC 22]).

This moralist stand against prostitution is established by South African legislation. Section 20(1)(A)(a) of the 1957 Sexual Offences Act makes it a criminal offence to work as a prostitute and, although the wording is gender-neutral, implementation has a disproportionate effect on women working as prostitutes. This is the enforcement of sexual morality through criminalisation of conduct that fails to conform to moral or religious views of certain sections of society. Nonetheless, societal disapproval of certain activities does not mean that those activities should be criminal. Who determines which values, opinions and preferences become law and how far can the State go in dictating morality?

These are questions to which I cannot give an answer but I do know this: Sex work is not a product of immorality. It is the abuse of women’s circumstances, a consequence of economic marginalisation, lack of education and job discrimination compounded by coercion in the form of fear and violence. Catharine MacKinnon notes that “hooking is the only job for which women as a group are paid more than men” but nobody gets out of poverty or makes their fortune from prostitution. I also know that prostitutes suffer sexual and physical abuse, generally poor health as well as symptoms of post traumatic stress disorder similar to those shown by men in combat and rape victims, and South Africa has various international legal obligations to deal with these harms.

The 1979 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) favours the legalisation of sex work and aims to break the links between poverty, exploitation, violence and prostitution. State parties are obliged to take all appropriate measures (including legislative measures) to protect women against exploitation, and adopt effective measures to ensure equality of employment for women. These measures should be accompanied by health services and re-integration into the formal economy. The Millennium Development Goals (especially MDG 3) identify the role played by women in the labour force and the absence of value placed on their productivity. If greater value was attributed to the economic activities of women in the informal commercial sector, then there would be an improvement in the options available to women.

In addition, the 1993 Declaration on the Elimination of Violence Against Women (DEVAW), identifies violence condoned by a State (irrespective of whether it is public or private) as violence that violates women’s human rights and compels State parties to prevent such violence. DEVAW supports the decriminalisation of prostitution because, without access to courts as legally-recognised traders, women are unable to seek state protection.

Despite optimism fostered by Kylie and the need for the law to reflect the Constitution, its values and alignment with international legal instruments, I sense that the state has found a convenient impasse in the morality argument. The sex work discussion has been managed in the same way South Africa generally tends to deal with uncomfortable issues. The judges hide behind the law-makers, the law-makers hide behind majority views, while sex workers continue to endure criminal sanctions and the hardships of their industry.


Image by Stuti ~