By Dieter Lubbe

‘Life keeps proving that although lies tend to be more agile than the truth, it’s the truth that triumphs in the end’ Prof Thuli Madonsela

In this article, I will look at arguments surrounding the complete decriminalisation of the sex industry in South Africa. The article is intended to give the reader a basic overview of claims in the debate. I start by setting out one of the most popular arguments (Harm Reduction Argument) being forwarded in support of decriminalisation. My counter argument is then intended to provide the reader with some insights into the points of disagreement.

From my perspective, we cannot reject the constitutionally permissible prohibition on prostitution in South Africa primarily because:

• Commercial sex acts differ from consensual non-commercial sex acts in principle.
• I argue in support of the South African constitutional ruling that legalisation of prostitution imperils important public interests

Summary of the Harm Reduction Argument:

Premise One. Prohibitions on prostitution drive the sex industry underground and this impacts the autonomy (rights) of individuals who consent to such acts.

Premise Two. Decriminalising all aspects of prostitution – including brothel-owning and sex-buying – will protect the human rights of individuals who consent to such commercial sex acts.

Conclusion: Prostitution should be fully decriminalised.

Explicit in premise one is the idea that the state is currently diminishing human rights. Some arrive at this conclusion from a practical standpoint. That is, if something is unregulated or rather underregulated then the rights of those involved will not be protected. Others come at it from a libertarian commitment, i.e. the state should not interfere with an individual’s freedom to choose. However, it is incorrect to conclude that prohibition is unregulated in the sense of no rules.

For the sake of clarity, it would be more accurate to say – underground criminal activity will exist irrespective of the legal framework. Likewise, corruption and negligence by law enforcement personnel is not unique to prostituted people only. Indeed, the call for reform with respect to law enforcement personnel is one area on which almost everyone agrees. The question in premise one is – are we assuming a universal right to sell sex acts or attempting to argue from the neglect of other rights (e.g. health and access to justice) to a new right? With this question in mind, we can look to constitutional ideas around consent. Important to note at this point is that ‘sex work’ activists (those who see prostitution as legitimate work) are seeking not only to change the law but also to change the way society at large thinks about prostitution. This is argued under the banner of gender equity in support of female human rights. It is mistaken to assume that all feminists agree on what constitutes sexual liberation in this regard. Hence, it is misleading to argue as if the notion of ‘sex work’ liberating women was uncontroversial (in Africa particularly).

The notion of consent is important to this case because in a liberal democracy the freedom to choose is a significant constitutional value. But for the moment it is sufficient for us to observe that consent is not the ultimate defeater to any talk of prohibition. So the right ‘not to be enslaved’, for example, cannot be waived by a person in the name of free choice. So even if it seemed like a good idea to me to pay my bills by selling myself into slavery, the law justifiably prohibits me from doing so. The reasoning behind such a limit revolves around the notion that slavery diminishes what it is for us to be human collectively. Why is this relevant? The South African Constitutional Court found that, unlike private consensual sex acts, prostitution impacts on our collective humanity. That is, sex buyers treat the body of the prostituted person in a manner at odds with our collective human dignity as a species. The State, therefore, has an obligation to protect human dignity irrespective of the preferences of the individual.

The harm reduction activists’ argument also commits, what I think of as a ‘half-truth’ fallacy. The mistake in reasoning (and gender prejudice) is seen in the fact that the sex buyers are almost exclusively male. The case for the legalisation of prostituting persons seems to focus pointedly on the law surrounding ‘sex acts supply’ (mostly female). By confusing the victimised persons right to health and justice, with the demand sides proclivities for paid for sex acts. We do not arrive at a valid justification for the legalisation of the industry. This is why, I believe, some countries like France and others are criminalising the demand side of the industry in a clawback effort to rectify the mistake.

It is also unclear how a labour law framework, which respects privacy, will impact on public health. For example, the problem of STD infection is unchanged under the legalisation model, because the right to privacy protects employees from disclosing their status. It is hard to see how regular check-ups will change the high risk associated with multiple partner sexual exposure. This given, only the supply side is being encouraged to act ethically. It seems intuitive to suggest that full decriminalisation will result in increasing the numbers of persons being prostituted. This may exponentially impact public health rights, given the high probability of a dramatic increase in new cases of STI’s and STD’s.

A more moderate liberal position would need to recognise the necessary limits on sexual freedoms is warranted, with particular reference to the exploitation of women and the impact on the public interests more broadly. However, liberals in South Africa seem to dismiss out of hand prohibition talk, for fear of being perceived as unreasonably moral. The sex industry, on the other hand, has no shortage of funds to push this agenda forward. It is much like the days of big tobacco pushing a counter-narrative for the sake of profit, or sugar barons clouding the truth in the days of Wilberforce and the slave trade.

What about Health Concerns?

The World Health Organisation definition of health defines health as:

“A state of complete physical, mental and social well-being.”

On reading this definition I believe decriminalisation activists would be hard pressed to provide evidence in support of prostituted persons ever moving toward attaining ‘health’ as defined above. Nonetheless, the rights allegedly undermined by prohibition law are:

• the right to health care
• the right to due process in law enforcement

Both of these warrant attention of course. Still, as I have pointed out above, we should be mindful that we do not smuggle in the dehumanisation of people under the guise of public health. If a slave owner physically beats his ‘consenting’ slaves; it would be unjust to normalise the behaviour in law and then hand out boxing gloves to minimise the physical harm of the beatings. Or even worse, telling the slave to negotiate glove use. Some would then argue from a limited sample, that the boxing analogy, does not reflect the lived experience of many in the sex industry. As a witness to the court, such testimony would be difficult to assess given the vested interest. But for the sake of argument, it is the case that the vast majority of prostituted persons, do not enjoy this privileged position.

The law cannot reasonably accommodate everyone and hence must look to protect the most vulnerable. Battered women’s advocates are alive to a multi-disciplinary approach in dealing with gender violence cases. Much can be learned from this legal and social context (applicable to prostituted people interventions). South African Anti-Human Trafficking law has provided valuable language to define the abuse of vulnerability and the need for exiting to places of rehabilitation and restoration. What this shows is that given sufficient political will, change is possible. However, if the ANC is successful in its bid to drive the ‘sex work’ agenda through (using a two-thirds majority to rewrite the constitution if necessary). I believe South Africa and Africa will be the worse for it as we will then witness the consequences of normalising this dehumanising trade. As William Wilberforce put it, “You may choose to look the other way but you can never say again that you did not know.”

The post Perspectives on Prostitution appeared first on Pinion Project.

By Dieter Lubbe

Responding to any “news” report is a risky business at the best of times. One can never really be sure what was actually said. But for the sake of argument in this article, I’m going to accept that Javu Baloyi’s comments are in harmony with the Commission for Gender Equality’s published work (dubious as this work appeared to be given a very limited sample of research data) on the subject and that he is being well represented by the News 24 reporter [1].

The article’s title, ‘Sex workers’ rights group ‘cautious’ over ANC’s decriminalisation decision’, seems benign at first blush. Yet the substance of the article is more akin to a pro-prostitution ideology advert than a news article. Why the pro-prostitution view is exclusively being punted in this article, speaks volumes about most of the media in South Africa. For example, when considering the ANC policy position. How on earth do you opt for a pro-prostitution activist’s opinions instead of the authority of the South African Law Reform Commission’s Report on Adult Prostitution (SALRC Report) [2]? This is particularly relevant because the Commission for Gender Equality’s work should be in harmony with the SALRC Report if the ANC policy has been informed by the facts. Whatever the case, it seems as though the Sex Workers Education and Advocacy Taskforce (Sweat) is the only goto authority on this matter, even if they are being funded to promote and frame the agenda. It is in this lopsided frame that Javu Baloyi’s ‘comments’ become part of an ad hoc ‘justification’ for Sweat’s view.

‘That with decriminalisation, sex workers would operate in a safer space without being arrested or victimised and harassed by police. Sex workers would also be able to better access health facilities, social workers and doctors.’  The article claims.

This statement incorrectly presupposes firstly, that ‘stigma’ fueled by the legal prohibition on prostitution is currently limiting people’s access to health services and secondly, that unethical behavior by law enforcement is somehow empowered by the fact that prostitution is illegal. The SALRC Report provides valuable insight into this debate, with the addition of having taken the time to consider public submissions. For the sake of brevity, I will highlight some important arguments. The SALRC Report confronts the misinformation by observing that, ‘reforms in law have not been found to erase stigma’. Indeed, they make women more vulnerable as they must sacrifice anonymity to be recognised as legal prostitutes by the state. The SALRC Report points out that the ‘fundamental rights to freedom and security are no better for a prostitute working in a brothel compared to a woman who works alone –routine abuse and violence form part of the prostitution experience’; SALRC Report notes on page xxii,

‘Changing the legislative framework 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. Furthermore, the Commission believes that legalising prostitution would increase the demand, locally and internationally, for more prostituted persons, and would foster a culture that normalises prostitution and sexual coercion. The Commission believes that due to the systemic inequality between men and women in South Africa, any form of legalisation will not magically address the power imbalance between the buyer and the prostitute, or the demand by buyers for unsafe or high-risk sex (para 2.496)’.

This inconvenient evidence seems lost on Baloyi. The SALRC report affirms that prostitution does not fit comfortably into the international definition of decent work. I understand from the SALRC Report, that in S v Jordan – ‘the Constitutional Court found that criminalising prostitution is constitutional. SOA 1957 does not unfairly discriminate against women; nor infringe upon the right to privacy, freedom and security and the right to economic activity.’

Hence, the warrant for state assistance and intervention should really be grounded on the understanding that prostitution is demeaning of persons (not just business as usual as Sweat is suggesting). Furthermore, groups like Sweat are effectively blocking the momentum for government to look into helping those trapped in prostitution. After decriminalisation, as evidenced by the Netherlands, Germany and New Zealand, prostitution is framed as a regular job, the impetus to provide any existing service disappears. That is to say, the ‘departure from the occupation’, as the SWEAT submission calls it on page 189 of the SALRC Report, does not warrant additional state involvement which would otherwise be justified under a criminal justice response (as is the case in parts of the USA)

Julie Bindel in her book, The Pimping of Prostitution: Abolishing the Sex Work Myth, argues that even if deregulation allowed women more control of client interactions (which is moot) regarding insisting on condom use, the doubling of the number of prostituted women under deregulation is likely to lead to more STI’s, not less (many STI’s cannot be prevented by condoms). The public health implications are overwhelming. Yet Baloyi argued that the decriminalisation of sex work represented a chance for the rehabilitation of those sex workers who took on the job involuntarily, such as young people who used sex work to escape being married off or domestic violence. Again this assumes a level of agency that simply does not exist among the battered and abused.

Then Javu Baloy seems to dismiss over half of South Africans from the debate by pre-supposing that all religious persons in South Africa are biased at best or rather delusional. He reportedly ‘appealed to South African churches to not make this a religious matter, as it was a matter of principle’. ‘They shouldn’t discriminate. South Africa is a constitutional democracy, not a religious state.’ Javu Baloy said.

Baloy seems to be under the impression that only some South Africans have rights, and that the religious community is not included. This, however, is a grotesque reduction of the values and rights recognized in the South African Constitution. Dismissing the arguments, because of where they come from, is a mistake in reason.

“It is clear that our constitutional framework ‘does not only permit, but requires the Legislature to enact laws which foster morality, but that morality must be one which is founded on our constitutional values” Jordan v the State, Constitutional Court.

The South African Constitutional court has argued that the prostitute is wronged precisely because the prostituted person is treated in a way at odds with his/her genuine personal dignity by the sex buyer. Abolitionists the world over have also argued that the commodification of women’s bodies in the sex industry will negatively impact the public interests of all women. As other countries in the world, with strong economies, watertight borders and an operative rule of law, claw back from failed attempts at prostitution legalisation, the ANC is really not in a position to experiment with the lives of the vulnerable in South Africa.

If South Africans are serious about eliminating violence against women and children, we must do our best to consider all the evidence.

[1] Nation Nyoka, Sex workers’ rights group ‘cautious’ over ANC’s decriminalisation decision, 12/2017 https://m.news24.com/SouthAfrica/News/sex-workers-rights-group-cautious-over-ancs-decriminalisation-decision-20171221

[2] http://www.justice.gov.za/salrc/reports/r-pr107-SXO-AdultProstitution-2017-Sum.pdf

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