After a decade, the South African Law Reform Commission has released its Report on Adult Prostitution and recommendation on sex work (or the term it prefers to use – “prostitution”). But instead of re-examining six decades of failed legislation that is responsible for a host of social ills and human rights violations, the Commission recommends ‘the retention of criminal sanctions for brothels and all third party offences’, fully criminalising all forms of adult sex work.

Optimists and those who had faith in the government process are dismayed and outraged; realists who have been watching the goings-on at the law commission for some time are simply disappointed.

Condemnation of the Commission’s findings came swiftly from a host of human rights and civil society groups representing over 1,500 organisations.

In a press release, the Women’s Legal Centre (WLC) quotes comment by attorney Mosima Kekana: “As an African feminist organisation, we are in full support of the decriminalisation sex work as this is the only system which will reduce human rights violations against these women.

Activists from Sex Workers Education and Advocacy Taskforce campaign outside the Western Cape High Court in June 2015. Photo: Ashleigh Furlong/GroundUp

It said, ‘The WLC has a vision of women in South Africa being free from violence, empowered to ensure their own reproductive and health rights, free to own their own share of property, having a safe place to stay and empowered to work in a safe and equitable environment.  And this includes sex workers who are an extremely marginalised group in South Africa.

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The Centre also pointed out that the Commission relied on hopelessly outdated research, insufficiently examined “harm reduction”, and that it also completely ignored human rights treaties such as Convention on the Elimination of all Forms of Discrimination Against Women and the Maputo Protocol on the Rights of Women in Africa

Sally Shackleton, director of Sex Workers Education & Advocacy Task force (SWEAT), said the Commission had failed in its mandate. It was “both biased and disorganised”; the project was driven essentially by one person’s opinion with none of the original commissioners and researchers which began compiling the report remaining at the Commission”.

#SayHerName campaign launched at Constitution Hill, Johannesburg, will build a database of all sex workers murdered in South Africa between now and 2019. Photo: Ray Mwareya/GroundUp

In fact, the institution was left without commissioners for almost two years,” said Shackleton.

Professor Cathi Albertyn, who was on the Commission until 2011, said: “At the time I left, we were working towards a recommendation that decriminalized sex work, and directed attention to how the law might contribute further to eliminating any harm that might accompany this work, whether forms of violence and abuse, rights violation or labour exploitation’. 

But the Commission did a volte-face.

Thuli Khoza, leader of the Sex Work Sector, said the Commission report brings us no further than we were 20 years ago when Project 107 [reforming South African law regulating sexual practices] began, prolonging a process that has cost not only the tax-payer millions, but also cost sex workers their lives”.

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The harm caused by criminalising sex work should make legalising it a no-brainer. Sex workers are routinely harassed by police, raped with impunity, exploited without recourse to labour protection, struggle to keep their families together, often denied access to health care and protection, usually controlled and ruled by men, discouraged from reporting human trafficking for fear of arrest themselves, and left vulnerable to HIV infection and other STDs. Sometimes this conspiracy of denial, prejudice, and stigma ends in murder. The number of sex workers killed in South Africa is sickening. One should add to this the completely unnecessary burdening of an already stretched and failing police and justice system.

The Southern African HIV Clinicians Society said the country “will not reach national and international HIV reduction and treatment targets and related public health goals if it does not decriminalise adult sex work”.

A SWEAT member poses on the ground near where Shemise Gordon’s body was found. Photo: Ashleigh Furlong/GroundUp

It said this position was supported by UNAIDS, the World Health Organisation, The Global Commission on HIV and the Law, the South African Commission for Gender Equality, the Lancet Journal and Amnesty International.

Sonke Gender Justice said international evidence showed that reducing and eventually eliminating violence against women will only be possible in a context where the criminal law governing sex work is completely removed, and where sex workers are brought under the framework of occupational health and safety laws.

Other organisations that condemned the report included the Sexual and Reproductive Justice Coalition, Triangle Project, the AIDS Healthcare Foundation, and umbrella network NACOSA.

The question now is what will government do with the report which sat firmly shut on the desk of the Department of Justice for nearly three years.

Various progressive forces in government are for decriminalisation, and the deputy president has himself been touting the National Sex Work Sector Plan to stand up for the dignity and human rights of sex workers.

There is speculation that government hopes the release of the report’s intolerant stance at this time will appeases public outcry over the recent spate of criminal violence against women and children which the police seem unable to contain.

The commission’s recommendation however will have no effect other than to perpetuate such violence. The fear on the ground is that government will now opt for partial criminalisation to appease its conservatives.

Sex work is illegal in South Africa. Laws prohibiting it were repealed then re-enacted and consolidated by the apartheid government in 1957 as the Immorality Act. This law is still in force, but was renamed the Sexual Offences Act.