Just over a month ago the South African government announced that it was suspending its bid to push through a controversial bill to decriminalise prostitution. What does this development mean? And what next? Gateway News discussed these questions with Dr Marcel van der Watt, Director of the Research Institute at the National Center on Sexual Exploitation, in Washington DC, who has dealt extensively with sex trafficking and sexual offences committed by sex buyers in South Africa’s sex trade from both a law enforcement and research perspective.
Prostitution is a great injustice against women and fully decriminalising it or regulating it in a way that tells men they can pay to do whatever they please with women, would create more demand for prostituted persons and increase sex trafficking, says Dr Marcel van der Watt. Therefore, the SA government’s decision not to go ahead with the bill is commendable and while it may mean that full decriminalisaton is off the table, “the next topic of conversation will likely be the regulation of the sex industry”. This topic may only rear its head next year or beyond – but the stakes remain high and if the outcome is a law that does not hold sex buyers accountable a new wave of “intergenerational trauma” will be unleashed on women, children and communities, he says.
Ground for hope
But he says there is much ground for hope. The “sleeping giant” – a well-informed and active civil society – has begun to arise. In the past five months – in response to an aggressive bid by the SA government (aided by legalised-prostitution proponents and the media) to get its controversial bill approved – many people, including those in the anti-trafficking movement, have acquired much research-based knowledge from around the world about the dire consequences of decriminalising all parties in the sex trade and have made counterfactual submissions to the Department of Justice and Constitutional Development. He said he is also reliably informed that there was an “upswell” of resistance to the bill by people in government.
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The reason given by Deputy Minister of Justice and Constitutional Development John Jeffery for holding back on the bill now is concerns about its constitutionality. However he said they would be drafting new provisions on the regulation of sex work so that the bill could be reintroduced at the beginning of the next administration. He added that decriminalisation of “sex work” and the human rights of “sex workers” remain high on government’s human rights agenda.
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Van der Watt says that “everyone agrees with the minister that the human rights of prostituted women are important and his words leave room for him to claim a win for the women’s rights if his department’s current policy proposal fails and an “equality model” is adopted in which prostituted women are decriminalised but buyers, pimps and brothel keepers are not. The proposed bill was sloppy and “like a car being sold without wheels,” it lacked significant detail or any heed to the warning by the 2017 South African Law Reform Commission Report, namely that changing the legislative framework could create an extremely dangerous cultural shift and that “women would be considered even more expendable than at present”, he says.
‘Breathing space’
Van der Watt says that it is vital that civil society – especially the religious community – uses the “breathing space” time as a result of the suspension of the bill – to mobilise opposition to passing of a law that will expose prostituted women and children to more exploitation and abuse and lead to an increase in trafficking.
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“The multilayered threats posed by state-approved sex buying, pimping, and brothel-keeping must be raised on every possible platform. Both rural and urban communities will bear the brunt, as will several government departments, which will be confronted by the dizzying reality that prostitution never exists in a clinical vacuum. It seamlessly overlaps with sex trafficking, gender-based violence, organised crime, drug trafficking, child endangerment, contact crimes, community complaints, and public health harms,” says Van der Watt.
He says that there is a longstanding history of dissing the Church in the debate about prostitution. “The faith community has a massive role to play. They are frequently the first responders and caretakers when prostituted women and children go home to seek comfort – many of whom die. The faith community embraces them and sits at their bedside in the last days of their lives. We need to hear these stories of exploitation and life-altering consequences, stories of intergenerational cascading of prostitution with a girl of 14 years old, a mother of 30, and a grandmother of 45, who are all in prostitution. How has it worked out for them?”
Ideological subversion of facts
What about media reports quoting studies that legalising prostitution leads to better protection of “sex workers” from violence and HIV Aids and dignifies their work, I ask Van der Watt. He says the ideological subversion of the true realities of the sex trade, the massive undercounting of trafficking victims, and obviating and obfuscating the devastating role of sex buyers who care precious little about the dignity and well-being of those they pay for sexual access is prevalent in pro-”sex work” research. The omission of vital criminal justice data and the minimisation of the amount of abuse and coercion implicit in the sex trade in furtherance of a benign view of the sex trade, is commonplace.
He says while full decriminalisation proponents hold up New Zealand as “the torchbearer” of what a progressive prostitution legal framework should look like, New Zealand’s 2023 downgrade to Tier 2 for the third consecutive year in the annual State Department Trafficking in Persons Ranking List raises serious concerns. Not only is sex trafficking significantly under-reported and under-detected in the sex trade, but New Zealand police are constrained by legal restrictions on their ability to proactively screen for sex trafficking victims “within the legal commercial sex industry”.
In another example, the recent piece entitled Raped, Forgotten, Lost – published in Der Spiegel – provides a sobering look into the “fatal mistake” of Germany’s 20-year-old legal sex trade. A former chief detective that is quoted in the Der Spiegel piece points out that the “red light environment is a parallel society with its own values, with its own rules of the game. The laws benefit the perpetrators and abandon the victims”. Van der Watt says: “How on earth will this play out in South Africa?” Simply put, if sex buying, pimping, and brothel-keeping are normalised, prostitution and sex trafficking and associated physical, sexual, and psychological harms will skyrocket.”
Ethical dilemma
Urging civil society to seize the moment to tell the ugly truth about prostitution, he says the SA government is caught in an ethical dilemma where on the one hand it says it is committed to fighting gender-based violence, while at the same time it is proposing laws on prostitution that would “unleash violent men” to perpetrate unrestrained gender-based violence on women. Bizarrely, he says, SA is currently proposing new tobacco laws that will include a maximum sentence of 20 years imprisonment for selling tobacco products to children, but they turn a blind eye to sex buyers who are abusing children in brothels where a fair amount of smoking is also taking place. Even though evidence of horrid sex buyer impunity has been piling up for almost three decades, a recent South African human trafficking study and the case of Gerhard Ackerman and the child sex abuse ring that had more than 160 “clients” confirms this tragedy. This amounts to countless rape cases that have never been reported, and neither will they be solved, says Van der Watt.
So then, I ask, is the solution to change our prostitution law to adopt the Nordic, or equality model, where prostituted women are decriminalised but the sex buyers, pimps and brothel keepers are not?
Van der Watt says the principle of equality embedded in that model is good but “I don’t think we should simply copy and paste”. First, we must pause, listen, and engage meaningfully with every stratum of South African government and society at large – rural, urban, and suburban. Striking an even-handed balance includes reading the quintessential recent doctoral study of Advocate Dellene Clarke, and listening to the critical voices of sex trade survivors like Mickey Meji and the international thought leadership of women like Rachel Moran. “There are no shortcuts,” says Van der Watt.
‘Our own solution;
”We need our own solution” that is geared to the South African context, he says. This must include creating off-ramps out of the system of prostitution instead of paving more on-ramps into it. Normative change in response to inequality and gender discrimination that underpins prostitution and holding men accountable should take centre stage. Expunging criminal records of women associated with their being in prostitution, and reforming existing laws around gender-based violence and trafficking which provide pipelines of help for women, could be broadened to accommodate persons in prostitution. This would cost money, but why not have sex buyers fund these exit services through fines, he suggests. “We have documented at least 15 demand reduction tactics that target sex buyers and have been successfully employed by law enforcement in more than 2 600 cities and counties in the United States. These tactics have proven to be effective and can be employed within a human-rights-based approach while generating revenue for sex trade survivor support services,” says Van der Watt. “This is not a pipe dream, but it is going to require humility and openness from the government of the day,” he says.
State-approved sex buying, pimping, and brothel-keeping fundamentally cast the government as an enabler and perpetuator of harm, and any form of financial profit that the government pockets from the sex trade will mimic the actions of a pimp. This would resemble the antithesis of the spirit and the letter of SA’s Constitution.
“It’s time for a paradigm shift on the whole debate. We should be far more excited to be part of the fight for people not to go into prostitution than fighting for their rights to be in it.”
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How does one make contact with Marcel please?