Decriminalisation of sex work in South Africa will only bring more harm

Originally published in Daily Maverick

Arguments in favour of the decriminalisation of ‘sex work’ is dubious. The focus should shift to reducing demand and addressing pimps, brothels and traffickers.

For the past 17 years, I have had an insider’s perspective on the abuse, rape, torture and murder inflicted on persons in prostitution. From meals in my family home to early morning coffees and conversations in brothels, my personal journey with countless persons in prostitution through my role as a criminal investigator, suicide negotiator and, more recently, researcher and expert witness in cases of Trafficking in Persons (TIP), is kaleidoscopic.

Their lived experiences of harm are real and the dangers clear and present.

Stigmatisation marginalises this community while our criminal justice system fails them dismally. Yet, the decriminalisation of prostitution and the further commodification of our women and children is not the answer.

The call for the decriminalisation of prostitution by the “sex worker” movement in South Africa and President Cyril Ramaphosa’s added voice to the debate are again echoing in South Africa’s human rights- and gender-based violence corridors. The call for decriminalisation is vociferous, draped with slogans and promises, a glowing landscape characterised by increased safety, access to health services and the protection of human rights.

With no desire to enter the complex fray of which prostitution law model is the best for South Africa, I gladly leave this in the hands of prostitution survivors like Mickey Meji and Grizelda Grootboom and organisations such as Embrace Dignity and Cause for Justice, to name but a few. Instead, I will focus on the questionable claims and fleeting promises of South Africa’s sex worker movement and its dismissive sentiment towards the intersectional realities of prostitution with sex trafficking, organised crime, child sexual exploitation and endemic drug abuse and drug trafficking.

In March 2018, convinced that two parallel universes existed – my own lived experiences, and the one crafted by the sex worker movement – I decided to make submissions to Parliament’s multi-party women’s caucus. My submission, entitled “Serious Concerns Regarding the Decriminalisation of Adult Prostitution in South Africa”, was an emergent product of numerous sources which included my own recently completed PhD research on sex trafficking, as well as interviews with brothel owners, convicted traffickers, persons in prostitution and victims of trafficking.

Prostitution and sex trafficking cannot simply be conflated. Sex buyers, however, often care precious little as to whether the object of their lust is a person “willingly” engaging in prostitution or a trafficked person. Even more worrying though, are the false dichotomies proffered by the sex worker movement of discussions around “agency” – ie those who participate in prostitution out of “free will” versus those who are “forced” – and their denial of the seamless synthesis between the two.

The convenient omission by the sex worker movement of the “abuse of vulnerability” or any reference to its full definition in South Africa’s Prevention and Combating of Trafficking in Persons Act is also disingenuous. Simply put, to satisfy the crime of trafficking in persons, “abuse of vulnerability” means any abuse that leads a person to believe that he or she has no reasonable alternative but to submit to exploitation. This includes but is not limited to, taking advantage of the vulnerabilities of that person resulting from, amongst others, addiction to the use of any dependence-producing substance; being a child; social circumstances; or economic circumstances.

These abuse-of-vulnerability considerations are not only unique to cases of sex trafficking but also feature prominently as predisposing factors and considerations for those who “choose” to participate in the sex trade. With this in mind, the ostensible differences between the benevolent pimp and the wolverine trafficker are blurred and they are much closer to each other on the liability spectrum than is currently being acknowledged by the “sex worker” movement.

It is important to note that South African researchers promoting decriminalisation of prostitution have been criticised for radically truncating the definition of TIP, excluding cases of prostitution which clearly meet the legal definition of sex trafficking and thus undercounting the prevalence of sex trafficking in the sex trade. One claim goes so far as to suggest that international pressure, as well as efforts to improve South Africa’s status on the US State Department’s TIP ranking list, contributed to the “creation of sex trafficking as a social problem in South Africa.” Bordering on the ludicrous, I will leave it to police investigators, social workers and prosecutors who work tirelessly on TIP cases to refute these claims.

Our insatiable appetite for statistics to prove or disprove social problems has also caused paralysis. The multi-dimensional complexities associated with prostitution and sex trafficking must be appreciated while acknowledging that we are nowhere close to establishing the true scope, nature and extent of TIP in South Africa. What we do know is that the systemic and subversive nature of the crime and the “dark number” of victims are well-documented. Even the South African government, recently downgraded to the Tier 2 Watchlist on the US State Department’s TIP ranking list, is encouraged to increase efforts to identify victims of trafficking and reduce the demand for commercial sex and forced labour.

Should this not be our priority?

After hearing submissions on 5 March 2018, Parliament’s multi-party women’s caucus undertook to consult further before making a decision on South Africa’s prostitution law.

Have they in fact done so? Were prosecutors and police investigators working at the intersection of prostitution, TIP and the variety of social ills consulted? What about our rural communities or the public who are bullied and intimidated by pimps and criminal elements? Residential brothels – many not visible to the naked eye – operate with impunity and in staggering numbers. If only they were merely the source of prostitution. Child trafficking, forced pornography, organised crime, drugs, burglaries, common robberies and corruption are but some of the crimes oxygenated by South Africa’s unchecked residential brothels, drug dens and lolly lounges.

Some reports received in my capacity as case manager for the National Freedom Network include persons in prostitution offering school children reduced rates for oral sex on their way home from school.

A number of other issues still beg even-handed deliberation in South Africa’s prostitution law decision. They include the blesser phenomenon, health concerns raised by Doctors for Life, police corruption as a facilitator of sex trafficking and online adult entertainment websites, advertised on public billboards, which are implicated as enablers of sex trafficking.

Most intriguing is the outright dismissal by the sex worker movement of the comprehensive South African Law Reform Commission’s report which warns that changing the legislative framework could “create an extremely dangerous cultural shift” where women “would be considered even more expendable than at present”. Further social disintegration of our communities and the sex trade as a magnet for vulnerable adults and children are other risks that must be considered.

President Ramaphosa’s sincerity in responding to South Africa’s gender-based violence dilemma is commendable. However, where does the decriminalisation of ‘sex work’ fit into the president’s lamentations about the “erosion of the country’s social fabric”? The evidence is overwhelming that prostitution harms those in it. Even the wellbeing of the child must be interrogated.

Over the years, I have seen how prostitution can be passed on from parents to their children and how concomitant vulnerabilities perpetuate with unrelenting stamina. A Hawks investigator in my research referred to the “market” increasingly “saturated with adult prostitution” where traffickers were beginning to explore “more lucrative” options and targeting children. Where there is a demand, there will always be a copious supply. Together with third-party actors, brothel owners, pimps and traffickers, we men are the overwhelming beneficiaries of prostitution and continue to use and abuse with impunity. This is why we are so shamelessly silent. I have witnessed too many acts of unspeakable vulturism at the cost of human dignity and, Mr President, at the cost of our many-hued and intricate social fabric.

In conclusion, surely the governing party cannot consider prostitution as the panacea to South Africa’s unemployment problem? How about revisiting the valuable insights gleaned from a Constitutional Court judgement on aspects of dignity and prostitution? A cultural shift and systemic response characterised by collective compassion and scenario planning across all spheres of civil society, public and private sector, is proposed.

Furthermore, The Prevention of Combating and Torture of Persons Act 13 of 2013 must be explored as a mechanism to prosecute and harshly punish police officials found guilty of harming persons in prostitution. For far too long, the white, privileged and “intellectual” voices in this debate have been deafening. It is time to consider the wisdom of the whole South African crowd – most importantly those of prostitution survivors and the girl-child who will inherit our “village” after decision-makers move on. The bar is excessively low; our women and children deserve more from our government and society.