Decriminalisation of adult sex work & SALRC Project 107 Adult Prostitution: Deputy Minister of Justice briefing; Commonwealth Women Parliamentarians Strategic Plan 2016

Meeting report

Opening Remarks

The Chairperson said that the issue of having a law reform for the decriminalization of adult sex work had been a critical issue for quite some time. It was among the resolutions of the Round-table discussion of 2015. The Multi- Party Women's Caucus had promised the participants of the aforementioned Round-table discussion that it would follow up the matter.

The multi-party women’s caucus (MPWC) convened on 17 August 2016 to discuss the progress made in terms of laws affecting adult sex work in South Africa. Stakeholders such as the Commission of Gender Equity (CGE); SWEAT; the Department of Justice (DoJ), South African Law Reform Commission (SALRC), and Parliament Legal Service on the decriminalization of sex work made presentations at the session. The MPWC also pledged its commitment to ensure that the debate on adult sex work was pushed forward to finality.

At the session, the SALRC reported that it submitted its final report on adult prostitution to the Minister of Justice and Constitutional Development on 24 August 2014. This made it impossible for the Women's Caucus to comment on the contents of the report. It also became apparent that there was a need to convene a follow-up session with the DoJ in order to get more clarity on the issue of adult sex work.

The purpose of the current meeting was to get a briefed by the Deputy Minister of Justice, on the current status of adult sex work and the way forward. It was noted that although the meeting was public, and it had many stakeholders in attendance, stakeholders would not be allowed to participate in the meeting either through questions or comments.

Briefing by Deputy Minister of Justice and Constitutional Development and SALRC

Mr John Jeffery, Deputy Minister of Justice and Constitutional Development, began his presentation by appreciating the Women's Caucus for the opportunity given to address the concerns raised at the last meeting. Firstly, the South African Law Reform Commission (SALRC) was an independent statutory body chaired by a Judge. At the time when the Commission first reported on this issue, the Chairperson was Judge Masimya, who was currently the Vice or Acting President of the Supreme Court of Appeal. The commission was currently chaired by Judge Collipin, who was the Vice-Chairperson.

The SALRC had been previously been tasked with conducting an investigation on proposed amendments. It submitted a report dated August 2014, to the Minister and the Deputy Minister sometime in October 2014. Both the Minister and the Deputy Minister wanted the SALRC to reconsider certain issues in the report. Therefore, the final report dated June 2015 was only received by the Ministry some days after the date of the report.

Although the ministry intended to make the report public, it was impossible to do so because the Minister and Deputy Minister were part of an Executive Collective, which implied that the matter had to be firstly tabled in the Cabinet. Nonetheless, the ministry approached Cabinet for approval to release the report to the public but Cabinet opined differently because the issue was controversial and would require various processes to be passed through once the report was released. Instead, Cabinet preferred to act in a recommended position from the Executive.

The process with Cabinet was yet to be finalized, even though it was expected that the process would be finalized by the end of the year. This explained the cause of delay for releasing the report.

Although Ms Clark may have shown the report at the last meeting and the report was physically evident at the current meeting, no information from it could be disclosed yet since it was only the Cabinet that could grant such permission.

The Deputy Minister (DM) however, outlined the available options. The first option was the continued criminalization of sex work or some kind of minor amendments made to legislature, for example, ensuring that there were more diversion of sex workers who get put into the criminal justice system. The second option entailed full decriminalization, but different forms of regulation would apply, while the third option was partial decriminalization, also known as the Swedish option, which meant that neither the sellers nor the sale of sex would be criminalized, but the buyers of sex would be criminalized.

The DM asked Ms Clark from the SALRC to present information on the status of decriminalization in other countries.

Ms Dellene Clark, Specialist State Law Adviser, SALRC explained that the report had four legal models, which were total criminalization, partial criminalization, non-criminalization (referred to as decriminalization), and regulation. For each of the models, the SALRC had carried out a comparative analysis of countries and the status of development in this area.

Total criminalization was currently the case for South Africa, and examples of it were found in most states in the United States of America, except in Nevada. Adult prostitution was criminalised in African countries like Namibia, Botswana, Malawi, Zimbabwe, Zambia, Burundi, Cameroon, Central African Republic, The Gambia, Liberia, Morocco and Sierra Leone. An update dated 1 November 2016 revealed that prostitution had been fully criminalized in Tanzania, Kenya, Uganda, Nigeria and Ghana, and this position had been confirmed. Most of these countries had also enacted legislation to combat human trafficking, including trafficking for sexual purposes. Common themes in the African countries had identified high levels of gender-based violence, exploitation, poverty and unemployment. In a number of these countries, implementation of legislation and corruption was identified as a problem and noticeable increase had been recorded in child prostitution and sex tourism. The debate around legislative change only recently emerged in Zimbabwe, and there was still no indication as to which point it would go. Abuse of prostitutes by police in Zimbabwe had been successfully addressed through litigation against the police in recent times, and the outcome had been felt positively by prostitutes.

The most popular used example of partial criminalization was Sweden. However, partial criminalization had different permutations; one of which was the criminalization of the buyer and all other role players excluding the person selling sexual services. There was also partial criminalization in the United Kingdom, but the both the buyer and seller were not criminalized, but all related activities were criminalized.

The most popular used example of non-criminalization was New Zealand. However, it seemed to be more of regulation or legalization, as opposed to decriminalization, as exceptions were made in instances such as allowing the sale of sexual services to citizens only; and enforcing some prohibitions such as the ban on advertisements.

Examples of regulation were in Germany and the Netherlands.

The current happenings within the different countries were as follows:

-As of 6 April 2016, France had adopted the Nordic or Swedish model that did not criminalise sellers of sexual services but criminalized all other related activities. The legislation passed on the 6 April 2016 expounded on the vulnerability of prostitutes, the increase of trafficking of foreign women, and the abuses. Essentially, it had been discovered that violence was inherent in prostitution.

-As of September 2016, Ireland had taken steps to move towards the Swedish model. It was important to note that Ireland had a social system that provided grants for working-age adults, which was not available in South Africa.

The aim in both France and Ireland was to move towards an exit model. However, the legislative pendulum seemed to swing backwards towards an interventionist approach due to the inherent exploitation in prostitution.

-The update in the United Kingdom (UK) revealed that as of 1 November 2016, the UK Home Affairs Select Committee was conducting a two-year review of legislation. An interim report that leaned towards decriminalization was published in July 2016. However, the Chairperson of this Committee was caught paying for sex in September 2016 and he was replaced. The new Chairperson was historically in favour of the Nordic or Swedish model and there were indications that the interim report would be withdrawn. This debate was on going.

Examples of the four models identified were as follows:

-Partial criminalization in Sweden, whereby the prostitute was not criminalized but all other role players were criminalized. This was because prostitution was regarded as an act of male violence against women and children, a form of exploitation of women and children, and a symptom of inequality between the sexes.

As of 1999, bisexual services were illegal under the Swedish penal code. In 2009, both Norway and Iceland enacted similar laws, after which Finland, Israel and the United Kingdom followed suit. Korea had partly enacted similar laws.

As mentioned earlier, France had moved towards the partial model in April 2016. In Sweden the offence of prostitution was originally sanctioned with the fine of imprisonment of up to six months, effective from 1st July 2011. The maximum penalty was revised upwards to one year imprisonment to reflect the heightened priority of the crime. The offence covered all forms of sexual services whether purchased outdoors, indoors, in saunas or in massage parlors.

In Canada, there had been quite an active debate on-going, and litigation had gone all the way up to the Supreme Court of Appeal. In 2014, the Parliament of Canada amended the Canadian criminal code by enacting the Protection of Communities and Exploited Persons Act, in response to the Supreme Court of Canada’s decision in Attorney General of Canada versus Bedford. In the preamble of the Act, Parliament of Canada expressed its grave concerns about the exploitation inherent in prostitution and the risks of violence posed to those who engaged in it. It further recognized the social harm caused by the objectification of the human body and the commoditization of sexual activity and the need to protect human dignity and equality of all Canadians by discouraging prostitution, which has a disproportionate impact on women and children. It stressed the importance of denouncing and prohibiting the purchase of sexual services that created a demand for prostitution. It also emphasized the importance of continuous denunciation and prohibition of the procurement of persons for prostitution. It concluded by encouraging those who engaged in prostitution to report incidents of violence and to leave prostitution.

The Prostitution Reform Act of New Zealand, which was an example of non-criminalization or decriminalization.

The Chairperson advised Ms Clark to summarise the rest of the presentation, and focus more on the perspective applicable to South Africa, since there was a time constraint.

Ms Clark then continued that New Zealand was an example of decriminalization, but had not allowed non-citizens to sell sexual services in the country, thus putting certain restrictions in place. In terms of comparison, their population was about 4 million people, and they had no porous borders, which made its context to be quite different.

Examples of the regulation model could be found in Victoria in Australia, Germany and the Netherlands. What was interesting in terms of the modern trend was that Germany for instance, discovered that the uptake of people registering as prostitutes were minimal because prostitution was not considered as work. It was however, confirmed that incidences of trafficking within the country had increased.

The Netherlands had also made a decision in terms of its review, through the use of its Public Administration Screening Act. The decision reached was to revoke window licenses in De Wallen, since the majority of the licenses were owned by people with known criminal connections. Hence, there seemed to be a buying back of windows in the Netherlands to try and reinstate urban rejuvenation and to combat trafficking. Legislation and crime prevention in the Netherlands was important and this was tabled in the Dutch Parliament in May 2011, and a debate on it was still on-going.

SALRC engaged with the public through eight organized workshops in urban and rural areas. Focused meetings were arranged by SWEAT for women involved in adult sex work; focused meetings were also arranged with a number of other organizations as well as with individuals who had no affiliation with bigger groups. Engagements were held with women who had exited prostitution; liaison with brothel owners, and engagements with former brothel owners.

In total, SALRC had conducted 1 761 different engagements with multiple people that made submissions for the discussion paper. These submissions were endorsed by a further 889 individuals and/or organizations, bringing the total to 2 650. The names included interest groups of different perspectives, for example SWEAT, Commission for Gender Equality, the Legal Resources Centre, Doctors for Life, Family Policy Institute, people who had provided sexual services, people who had exited, organizations that facilitated exit, brothel keepers, ex-brothel keepers, including Ellen Jordan who had exited after the Jordan judgment in 2002. Some persons who were involved and had exited the work requested anonymity and were reflected as such in the report, but each individual and each organization name was listed in the report as annexure.

The Chairperson acknowledged the presence of Deputy Speaker of North West, Honourable J Manganye.

Discussion

Ms C Pilane- Majake (ANC) appreciated the presentation and commented on the categories of criminalization that were reviewed. It was pointed out that the United States of America (USA) with the exception of Nevada, was cited an example of total criminalization, after which  African states were also cited as examples of criminalization. She wanted to know the difference that existed between the aforementioned categorization.

Ms T Didiza (ANC) appreciated the presentation and suggested that the SALRC report should be noted first. After receiving the report, the MPWC could deliberate on the report with the background understanding of what was happening in other countries and then decide what would be better for South Africa. It was limited now, because the discussion was a generalization of happenings elsewhere without going through the SALRC report on the investigation done and the recommendations that were made.

Ms Pilane- Majake noted that a close look at the presentation showed that South Africa was listed under total criminalization. It also showed comparison of different models by using first world counties, such as the United Kingdom and New Zealand etc. She wanted to know if a deeper comparison between African countries was available.

It was agreed that the SALRC report was awaited on, and that summarized questions could be given.

Ms D Robinson (DA) expressed interest in the report of the presentation and was sorry that it was cut short. She supported Honourable Didiza on the request for the final SALRC report.

A concern was raised on the delays around this matter. She asked for the reasons for not resolving the issue until the end of the year, noting that the lives of women were in danger. It was known that trafficking was increasing. This was not something that should be put on the back burner, but on the front-burner, because the situation in South Africa may have the upcoming 16 days of activism, but it was more important to record achievements in this regard. Hence, bringing the report was significant to improve the lot of women who were vulnerable and who suffered from predatory individuals.

Ms Pilane-Majake commented that, indeed, the matter had been in the public discourse for quite some time. The various abuses that had impacted the lives of sex workers were indeed acknowledged. However, at the same time, there were various platforms that were actually debating and some were viewing it from the moral perspective, while some others viewed it from the religious and even human perspective. At the end of the day, the country should be in a position to help protect the rights of sex workers, and was expected to consider this issue properly.

Ms M Chueu (ANC) appreciated the presentation and enquired about the possibility of getting the DM to share information on the issues raised during the interviews conducted on individuals and organisations with the Committee. The organizations were enlisted, but the particulars of those concerned were not mentioned.  This information could result in a better understanding of South African dynamics when compared to other countries. Thus, it could open up the effect of the Cabinet’s final decision on people. Such details were documented through the compiled lists of those investigated upon, but it was uncertain if presentation of those concerns would be time-consuming.

The Chairperson said that the presentation of the concerns of those investigated should not be time-consuming.

The Deputy Minister confirmed that the process had taken a long time, but it was a complex issue. The report that contained the details could not be released yet. However, it was pointed out at a previous occasion that the SALRC report was not particularly positive towards the question of decriminalization. It was important not to politicize the matter, because trafficking was already illegal and the involvement of children in sexual services was illegal too. In essence, there were available laws to prohibit sexual services as well.

Most of the problems related to the non-enforcement of laws. An example was the municipal by-laws that affected the solicitation of people on the streets, which was a contradiction of municipal by-laws in most cases. Even though such municipal by-laws could be more enforced, there was the problem of its impact on sex workers. Hence, the problem with laws of solicitation was the possibility of arrests of sex workers that may occur due to the evidence of condoms. This issue had been raised by SWEAT, but it was uncertain if that was still a problem. The implications of such laws on sex workers would mean working without condoms, and this could expose them to greater risks.

The DoJ through the National Aids Council had provided an extensive program for sex workers on prevention and health treatment. The current laws were not a restriction on the programs run by government assist sex workers.

The Deputy Minister stressed that the Cabinet was in a position to release the report, which would include some form of direction that could guide the debate and its results. Obviously, the report itself and the issues therein had to be further debated on. However, rather than just putting it out into the public domain, Cabinet advocated that “as the Executive, this was the proposed route that we think South Africa should be taking”, and this could serve as the central point of the debate. However, there were no restrictions on discussing the matter and deducing a viewpoint. The SALRC report was just an extensive research. The positions of different political parties were unknown, but it was known that most members of the African National Congress (ANC) had no position on the matter. This was despite the fact that the national executive of the Women's League had expressed support for decriminalization. The position of the largest opposition party, the Democratic Alliance (DA), was still unclear. The issue needed further debate, but it should be remembered that it was a complex issue.

Addressing the issues raised around clarity of models in operation in African countries, Ms Clark replied that a consideration of legislations of most reviewed African countries showed that the criminalized model had been adopted. This meant that the buyer, selling and all related behaviour of sexual services were criminalized. The trend across Africa was the recent and increasing enactment of trafficking legislations to combat sex tourism and the trafficking of people. Each country had their specific challenges due to existing differences, and it was important for each to be considered in context. The reason why examples of African countries were not elaborated upon was because most of them made use of an identical model of total criminalization.

The SALRC discovered that there was a unanimous view on exploitation, irrespective of the model supported by people or the different interest groups with focused view model, and irrespective of whether such groups were religious or had worked directly with adult sex workers such as SWEAT. SALRC found that prostitution in South Africa was driven by a very complex intersection of social and economic factors in which poverty, unemployment and inequality were key drivers.

A number of issues were raised in the National Development Plan (NDP). Currently, in South Africa there was no national strategy to assist anyone out of prostitution, neither was there any social services network for working-age citizens in South Africa.

In terms of the report itself, the SALRC looked into both legislative interventions and non-legislative interventions. The debate essentially focused on three main topics, which were the work of prostitution and exploitation; access to health care and HIV treatment; and arbitrary arrests. SALRC discovered that those three issues were the most fundamental within the South African debate.

The use of terminology was also important, especially in terms of reference to work according to the International Labour Office (ILO). It raised questions on the decency of the work in itself, and in terms of the South African strategy. It also raised the debate on provision of automatic labour protection for those working, especially because it was rarely the case that labour protection was granted to majority of the people working as independent contractors. The implication of this was that such people could not claim the rights contained within the Labour Relations Act (LRA), and in effect would have no pension, no UIF, nor any labour protection. The word ‘prostitution’ was referred by SALRC because it did not want to take a premature policy decision on the terminology. Therefore the terminology used within the report was also ‘prostitution’.

The Chairperson requested clarity on partial criminalization and its implications.

It was pointed out that the workshop held by the MPWC expressed strong views on the decriminalization of sex work. And the concern was the stance of the SALRC after having received the submissions and the consultations.

Ms Robinson said in response to the Deputy Minister of Justice that the matter at hand was one that affected women throughout the country. South Africa was a State in which arbitrary arrests and violence still occurred often. It was acknowledged that the DoJ had provided health care and other facilities. However, women continued to be increasingly vulnerable. Hence, the appeal was to address this issue in earnest and not wait till December or a further date like May 2017 onwards, as it was a matter of extreme importance.

 

Ms Didiza asked the Deputy Minister if it would be appropriate for the MPWC to organize a workshop to discuss the already submitted SALRC report, despite the fact that the report was commissioned by DoJ.

 

The Deputy Minister responded that the SALRC produced work for the Executive. The suggestion raised by Ms Didiza was one that could be considered, but it would be impossible to release the report to the MPWC since the Cabinet was yet to reach a commonly agreed decision on the report. Hence the proposed workshop by the MPWC would be a good idea once the report had been released. Additionally, the Committee was assured that the report would be released in earnest and not postponed. The report had to go through various processes and structures, including the Cabinet. Its latest memo had gone through different draft stages, but it seemed as though nothing was being done because of the contentious nature of the report. It will be sent to the Cabinet by the end of the year, but the debate as to when it would be finalized would depend on how quick an agreement was reached and decisions taken on it.

The report was designed to address quite a number of issues including arbitrary arrests that could lead to prosecution. Assault, child sex and trafficking were illegal activities, and there was currently no reason the change the laws that dealt with these activities. However, without divulging the details of the report, it was reiterated to the Committee that the report was not particularly positive on the issue of decriminalization. It should not be perceived that the ministry and the Executive were withholding a report that advised the decriminalization of sex work.

Ms Pilane- Majake commented that the most important thing was for the MPWC to note the report, even if the contents of the reports were yet to be released. However, it was difficult for the Caucus to deal with issues in an unpublished report. The Deputy Minister had indicated that the position of the report was not particularly positive to the decriminalization of sex work, but the last workshop of the MPWC concluded that decriminalization might be the way forward. There was a need to promote the position of decriminalization as agreed upon at the workshop, and regulate sex work in a manner that would allow municipal bylaws to address problems faced in the work.

It was also important to point out that this discussion and debate ensued in an environment that was heavily affected by gender-based violence; and trafficking of women, including those converted into sex slaves, which constituted other issues to be addressed in the future.

The presentation mentioned instances where some countries granted permission to engage in sex work to citizens only. This was an option that should be considered by South Africa, even though the country was grappling with the problem of migrants.

She wanted to know if the decriminalization could be made an open market South Africa since most migrants came into the country in search of a better life; and if this proposition would not result in having many Africans migrating into South Africa with intentions of becoming sex workers.

The issue of child prostitution was another area that should be looked into. Various factors should be taken into consideration before a suitable position on the issue was agreed upon by the MPWC.

The Chairperson asked for available avenues through which the MPWC could challenge the report after its release if it was found that the recommendations contained in the report were unfavourable to the civil society and other organisations in support of decriminalization.

The Deputy Minister replied that the report was merely a report; and research. Like every other report, it would pass through legislative amendments, and a debate would be organized after its release to the public.

The issue raised by Honourable Didiza was a crucial one. It was pointed out that a media review of the report was envisaged at the time of submission, in order to discuss how the SALRC arrived at its findings. An extensive engagement with the civil society would be organized by the SALRC to clarify all issues around the report. It was therefore an ongoing yet long process, as it had been agreed that legislative reform was a necessity.

Instances where foreigners were disallowed from engaging in sex work was found in places like New Zealand, but the country was an island without porous borders, which made it difficult to get into. This was unlike South Africa that had porous borders and was already faced with the problem of economic migrants who had come to South Africa for better opportunities. It would be impossible for South Africa to enforce that kind of restriction. The issue to be addressed remained how to curb the increase of economic migrants who were legitimately in the country to make money.

It should be noted that the release of the report would only constitute the next stage in addressing this issue, as the report was expected to provide some form of guidance and direction for other upcoming debates. A workshop with the MPWC by one of the organisations present would find the debate useful.

The Chairperson replied that the MPWC’s support for decriminalization of sex work would not waiver, but would continually be advocated for. Despite the fact that it was not certain when the Cabinet would deal with the report, public representatives would take into consideration all opinions of civil society and related organisations

Commonwealth Women Parliamentarians Strategic Plan 2016-2020

Ms Didiza, Chair of the House, said that the issue at hand was about formalizing the setting up of a Commonwealth Women Parliamentarian Chapter. At the last meeting, it was agreed that the Standing Committee of the MPWC would reflect on the modalities and decide on the best method to adopt. It was also expected that the Standing Committee would consider the approaches adopted by different countries like the branch that lodged in South Africa in August 2015. The Commonwealth Parliamentary Association (CPA) had organs that included the Commonwealth Parliamentarians and SoCATT, a society of clerks.

The branch of CPA in South Africa was the National Parliament. There were nine sub-national branches, which were the Provinces. Provinces were full members of both the CPA in the African region and at the international level. Provinces also had their own organ known as the Commonwealth Women Parliamentarians (CWP) organ that had its own constituted structures in the various Provinces.

The issue at hand was the failure to launch the women’s chapter after launching the South African branch of CPA. Therefore, the appeal to the MPWC was to ensure that the launch occurred.

Two approaches were available for countries to adopt. Some countries included the work of the CWP as part of the responsibilities of the MPWC. In such instances, a sub-committee of the MPWC would focus on the Commonwealth parliamentarian work. In other countries however, a CWP structure was set up to run parallel to the MPWC.

The MPWC advised the standing committee to allow it take up the duties of the CWP rather than creating a duplicate structure for that purpose. A sub-committee would then be established to focus mainly on the work of the CWP. Based on the response to this proposition, the MPWC could begin setting up a CWP forum, and the women’s chapter could be launched before the end of the term.

In the past month, the Kwazulu-Natal legislation was visited and its MPWC had volunteered to spearhead the work of the CWP. Thus, it was launched during its workshop. One of the things that had been done in partnership with the UNDP was to review the operation of the sustainable development of goals, particularly goal 5 that dealt with gender-equality, and also to consider the legislature would be monitored to ensure implementation of the sustainable development goals.

A visit made to Swaziland, which had already formed their Chapter. Swaziland’s legislation was reviewed to make sure the lives of women improved. Plans were already in place to ensure increased female representation at the 2018 national elections in Swaziland. Swaziland was considering having a workshop before the end of the year to work out a strategy that involved women in parliament and women in civil society organizations, and to strategize female representation in parliament post the elections of 2018.

Lesotho was also visited. It was currently enduring political turbulence, but considerations had been made on how best to work with the MPWC in order to set up its own CWP structure.

Namibia had launched its CWP Chapter. During a visit to Namibia, it was discovered that a different position was opted for in the sense that an independent structure was established apart from the MPWC. This structure was functioning properly because of the cooperation amongst the women. Progress had been recorded in the programmes embarked on.

The appeal to the South African branch was to achieve finality on this issue, by discussing the best option that could work best for the country.

The strategy plan of the Commonwealth Parliamentarians Africa Region that covered the period from 2016 to 2020 was circulated.

Ms G Tseke (ANC) appreciated the presentation by the Chairperson of the House as well as the detailed report of the Strategy Planning for the Commonwealth Women Parliamentarians 2016-2020 that was circulated, noting that there was no supporting document to refer to at the previous meeting. However, it should be noted that the proposals of the previous meeting was confirmed in order to avoid duplicity of proposals. Fortunately, members of the Portfolio Committee on Women were also members of the Standing Committee on the MPWC. It would therefore be a positive move for the chairpersons of both committees to work together.

The Chairperson asked MPWC if the proposal made by Ms Tseke was final, as that would entail the involvement of the Standing Committee, comprising of women from both the MPWC and the Portfolio Committee on Women.

It was also important to consider timeframes and confirm a date when further discussions could be held and decisions made.

12 November 2016 was suggested as the next date to deliberate on this issue.

The meeting was adjourned.