Adult Prostitution Report by SA Law Reform Commission; with Deputy Minister; IEC on legislating for mandatory quota

Meeting report

The Chairperson said that everyone needed to be sensitive on the subject on adult prostitution. At their last meeting, the Ministry of Justice promised to regularly update the caucus on relevant matters; so they are following up on this promise.

South African Law Reform Commission (SALRC) on Project 107: Sexual Offenses
Deputy Justice Minister John Jeffrey said Cabinet had released the report on 1 June for public debate. The Women’s Caucus should look at how they can facilitate engagement on the subject.

Ms Dellene Clark, Specialist State Law Adviser, SALRC presented the report.

This report is part of the review of all sexual offences in South Africa. The aim is for a comprehensive overhaul of existing statutory and common law sexual offences into one statute. Non-legislative recommendations for the reform of processes in the criminal justice system are to ensure implementation.
Current law is that selling and buying prostitution related acts are criminal in terms of the Sexual Offences Act (SOA) 1957 and Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007. In S v Jordan, the Constitutional Court found that criminalising prostitution is constitutional, and that Sexual Offences Act does not discriminate against women; nor infringe upon the right to privacy, freedom and security and the right to economic activity. There are a range of legal responses possible to address prostitution in a democratic society. To retain or change the existing law – is a policy choice.

SALRC received in excess of 2600 submissions on the discussion paper.  Eight formal workshops and numerous focus group meetings were held with a large number of lobby and interest groups including people who had or were engaged in prostitution, current and former brothel owners. 

The terminology used will be ‘adult prostitution’ and not ‘sex work’ because the word ‘work’ implies automatic labour rights and ‘sex work’ anticipates a particular position, that is, decriminalization as  popularised through decriminalisation lobbying but not all who provide sexual services for reward identify as ‘sex workers.

Considerations for law reform:
- Currently there is no national strategy to assist people out of prostitution
- Child and adult prostitution dealt with separately in law although they are interwoven
- Important consideration from a law reform perspective is whether the current legislation exacerbates the social problems associated with prostitution or serves the purpose of countering them
- The South African context includes unique societal challenges and geographical specificity (porous borders), high levels of unemployment, poverty, migrant and illegal foreign job seekers, high levels of violence (particularly sexual violence) against women, HIV/AIDS, drug or substance abuse, trafficking, and exploitation by unethical authorities.

South Africa needs to be mindful of lessons learnt in other countries, where one is seeing a reverse trend. Internationally in previously “liberalised” settings the harm and exploitation of prostitution is being increasingly recognised. There have been claw back measures to move away from legalising and decriminalising to a criminalised setting such as in Netherlands, Germany, Sweden, France, Ireland and Canada. Prostitution is totally criminalised across Africa (not Senegal), USA (not Nevada) and India. New Zealand moved to a decriminalization model.

Points of agreement in report by all lobby groups
The sale of sexual services is a result of a choice made in severely limiting socio-economic circumstances, and in a context of social inequality. People who sell sexual services are vulnerable. Opinions on the legislative framework are polarised with strong lobbying for decriminalisation versus retention of criminalisation for different solutions to exploitation.

Overview of Report
The Report contains legislative and non-legislative recommendations. It has two draft amendment Bills as options. The debate centres around three main topics:
- Whether prostitution is work or exploitation
- Access to health care and prevention of HIV
- Arbitrary arrest and exploitation.

Two legislative options are presented:
Option 1: Repeal the SOA 1957 and amend SOA 2007 to criminalise all prostitution related offences with the exception of the person selling sexual services i.e. partial criminalisation

Option 2: Repeal the SOA 1957 and amend SOA 2007 to criminalise prostitution and all prostitution related offences. This option is coupled to diversion to facilitate exit. This is the preferred option.

Non legislative recommendations
The law is often a blunt instrument in addressing social problems, therefore a clear strategy is needed:
- Develop a National Strategy to exit prostitution: Skills development programmes to enable gradual exit
- Transactional relationships/“amavuso”/ “blessers” as a growing social phenomenon should be further investigated from a social and gender-based violence intervention perspective
- Endorse recommendations in WLC and SWEAT report “every sex worker a human rights defender”
- CGE and SAHRC should investigate human rights violations
- SAPS and IPID should investigate reports of violence and unlawful conduct by officers
- SAPS establish guidelines for police conduct when dealing with prostitution and issue instructions
- Administrative mechanisms for monitoring / responding to reports of police violence
- Address discriminatory behaviour of health care workers by means of internal complaint mechanism
- SA National Aids Council (SANAC) plan implemented to improve use / access of health services
- Guidelines for health workers on interacting with vulnerable groups
- Vulnerability exacerbated by substance abuse – needs attention and intervention
- Specialisation by SAPS and development of good practice
- Department of Social Development mandated to engage with prostitutes on issues of social security and poverty alleviation, including re-skilling and alternative income generating projects.

Chapter 1: Overview
The report provides a legislative and regulatory review on prostitution. There is a discussion of different models which include criminalisation; partial criminalisation; regulation; and non criminalisation.

Chapter 2: People selling sexual services
• First option: The retention of criminalisation with diversion is recommended. There should be a legal mechanism to remove women from coercive circumstances. There should be a national strategy to provide exit strategies for prostitution – opportunity for training, counseling and reintegration. Following diversion, expunging the criminal record is recommended.
• Second option: Partial criminalisation where all is criminalised with the exception of the person providing sexual services.

Chapter 3: Buyers
Research shows that buyers of sexual services can be very violent. Legalising will not address the power imbalance and it will normalise coercion of women; it will further increase demand locally and internationally. Criminalising demand will not end prostitution but it is aimed at significant reduction. Legalisation will increase demand locally and internationally for prostitution. It is recommended that a person who pays for a sexual service but finds out that the person has been trafficked and reports should be exempted from prosecution.

Chapter 4: Third Parties
• The rights to freedom and security are no better for a prostitute working in a brothel compared to a woman who works alone. Brothels do not ensure this so it is problematic to allow them as a legitimate business.
• The recommendation is to retain the offence of knowingly living off the earnings of prostitution and extend it to include the offence of benefiting from the prostitution of another person;
• Eradication of street solicitation is a pressing and substantial concern – a valid legislative aim;
• Ban on advertising that premises or persons are available for prostitution;
• Retention of criminal sanctions for brothels and all third party offences.

Further concerns
• Identification as a sex tourist destination will affect branding and brand value of SA - unintended and serious long term economic consequences (Minister of Tourism submission);
• Increase in stigma and discrimination - makes women more vulnerable as they must sacrifice anonymity to be recognised as legal prostitutes; HIV Stigma Index HSRC;
• Increase in child prostitution – preference for younger women and one cannot strictly compartmentalise between child and adult prostitution;
• No social net for able-bodied unemployed working population if they want to leave;
• Increase in legal and illegal migration or trafficking – supply will increase;
• Legalising will not address the power imbalance or reduce the demand for unsafe or high-risk sex.
• Changing the legislative framework could create an extremely dangerous cultural shift juxtaposed against the high rate of sexual crimes already committed against women rendering them even more “expendable” than at present.
• Comparatively, violence continues unabated – non-criminalisation does not neatly excise prostitution from other illegal activities – continues to be shaped by the same socio-economic factors that concentrate crime in areas plagued by poverty, inequality and unemployment.

Conclusion
The aim of legislative intervention is to protect the rights of poor and vulnerable persons, particularly women and girls predominantly affected by inequality, poverty, unemployment and exploitation. SA needs to ensure that it has a coherent legal framework to deal with prostitution and prostitution related crime which includes money laundering, drugs and trafficking.

Discussion
Ms J Basson (ANC) said that she did not understand why there is no separation between child and adult. Was the Children’s Act considered when making this report? The law reform need to address the social ills that prostitution has stemmed from.

Ms M Chueu (ANC) said that South Africa cannot be equated with other countries because they were never oppressed or pushed into reserves. This law, and future laws presented, needs to reflect these circumstances. Men who are violent need to be prosecuted right away. Anyone who buys sex must use condoms. Prostitution must be decriminalised and the buyers need to be prosecuted. SALRC needs to stop giving examples of prostitution policies from other countries that are not similar to the history and structure of South Africa. Justice must be an African justice, not designed after European or Western cultures.

Ms B Dlulane (ANC) stated that SALRC needs to listen to the people. Next time they have a meeting on the subject of prostitution, the Caucus needs to invite the Commission on Gender Equality (CGE). A few years ago, CGE announced, after engaging SWEAT, that they would decriminalise sex work. As a democracy, everyone needs to listen to the sex workers who say they want to be called sex workers. The report needs to be changed to reflect the requested terminology. The matter needs to be looked at from a human rights perspective, not a moral perspective. There should be regulation regarding sex work.

Ms D Raphuthi (ANC) said that women are being demonized for selling their bodies, but men are not. There is not enough work being done about this; women need to be protected. Sex work should be decriminalised.

Ms M Pilane Majeke (ANC) said that the SALRC consultations did not cover all of South Africa and they should hold more consultations to get more opinions from citizens; especially the women who have to do sex work due to unemployment.

A caucus member stated that the caucus previously asked SALRC about the number of constituents they have reached, and they gave them the same number in November 2016 as they gave them today. The people dealing with the project need to listen to the Multiparty Women’s Caucus and take what is being said seriously.

Ms P Bhengu (ANC) asked why this law has taken so long to be finalised. As legislators, she feels as if the executive are the ones who are prolonging this process. The only people who are complaining about this are African people, where are the whites? This law is letting the African people down. Parliament listened to the people and made progress in abortion and legalising gay marriage, but why is this legislation taking so long?

The Deputy Minister clarified that this presentation is the SALRC report, which was released after Cabinet approval and the Cabinet’s decision to release it to the public. It is now up to Parliament and the public to engage in the debate to decide what to do next.

The Chairperson said that she is personally disappointed that no progress has been made so far. South Africa is a democracy, and from experience, this will get chaotic if there is no progress.

Ms Chueu recommended that Parliament engages on the matter, like the Deputy Minister said, and change this legislation.

Electoral Commission (IEC) briefing on amending Electoral Laws
The presentation was given by Mr Sy Mamabolo, Acting Chief Electoral Officer, who was accompanied by Mlungisi Kelembe, Head of Commission Services, and Rekha Raath, Senior Manager Legal Services.

The IEC presented proposed amendment regarding elections. A national meeting identified these proposals with all political parties and the IEC present. The first item that should be amended is section 8(3) of the Electoral Act to ensure that a person may be registered in any voting district in the ward in which they live. The second is that when a person changes their registration; they must ensure they are registered in the correct ward. Given previous incidents, people have voting stations close to where they live, but these are not in their voting district. The third is to amend Schedule 3 of the Act, which is the voting timetable. The amendment would make it possible for objections to be made before the voters’ roll is certified. Currently a certified voters’ roll is given to all political parties. However, on the eve of an election, some parties come and state that certain people do not live in the ward they are registered in. This is long after they have been provided with the voters’ roll. This will protect the IEC from political parties challenging the outcome of the election by limiting the time in which they may challenge the voters’ roll. The roll may still be challenged on Election Day for matters outside of this matter such as when a voter has been impersonated. The Commission wants to introduce section 16(4) which states that an absence of an address does not invalidate the voters’ roll. South Africa has uneven human settlements, so as long as a person is present in a ward, the roll is validated. Section 8 should be amended to state that the Chief Electoral Officer cannot register a person who is declared as someone without a sound mind. Section 27 should be amended to allow for the electronic submission of candidates.

Possible interventions by the Multiparty Women’s Caucus on legislating for a mandatory quota is via the National Party Liaison Committee [which represents political parties and the IEC] which has until late in June to make a submission on the draft bill. Once the Bill is introduced into Parliament, MPWC can make a submissions on the Bill to the Portfolio Committee on Home Affairs.

Discussion
A caucus member said that the IEC needs to understand that there are unemployment problems in South Africa. People are not always in the same place; sometimes they are in one city and then they are in the next because they are finding work. The 50/50 gender equality rule should be a policy enforced by government.

The Chairperson asked if there were any plans to review the Electoral Act to ensure gender inclusivity. If yes, will the review be provincially conducted? If not, why has the IEC not recommended a review of the current legislation?

Ms Chueu asked who is going to transform South Africa if the IEC does not reform the law. If no one does, South African men will be appointed into leadership. The IEC is responsible for elevating racial groups, Africans in particular, because that is what the democratic revolution was all about. It is a part of the Constitution that women have equal rights and that women are represented in all political groups. The IEC has to ensure that all political parties present women candidates, and legislation is the only way to ensure this happens.

A caucus member said that the IEC needs to look into the practice where parties concentrate on the 50/50 method during the elections, but during the term when people are replaced, they do not follow that.

Ms Bhengu stated that the IEC should also ensure that political parties have members with disabilities.

Mr Sy Mamabolo, Acting Chief Electoral Officer, said that there has been a review, and it will be coming to Parliament. This caucus has the scope to craft a provision on a quota that will be mutually acceptable to all key role players, including the disabled, in terms of election candidates.  They will take the messages back to the IEC.  When the parties come before the National Party Liaison Committee, they can make their concerns known.

The meeting was adjourned.