While government has been toying with the idea of decriminalising sex work for almost two decades, it has hesitated to act with ‘the necessary courage’ to regulate the industry in a progressive way.

Dr Rinda Botha, a senior lecturer in Public Law at the University of the Free State, says the reluctance to take bold action to decriminalise the sector has detrimental effects for sex workers. 

‘Decriminalisation would give sex workers access to labour rights and help prevent the spread of sexually transmitted diseases. Most importantly, it would give sex workers more protection from violence.’

She believes progress on this issue is hampered by the government’s fears of what might follow.

‘The two biggest fears are that it will lead to a spike in the sex work industry and the possibility of child prostitution.’

Writing on The Conversation site, Botha says these fears do not warrant inaction.

‘Government needs to start drafting a legislative framework to regulate the industry and decriminalise sex work. This is the only way to protect sex workers from further abuse and violence.’

She says because of the illegal status of their work, sex workers are forced ‘underground’, which makes them more susceptible to violence than other citizens – who are already ‘at high risk’.

She adds the only way to stop violence against sex workers and protect their basic rights is to decriminalise sex work. ‘The longer this reality is ignored, the more violence, including murders, will follow.’

Botha notes sex work was originally criminalised in terms of section 20 (1A) of the Sexual Offences Act, which stipulates the sex workers (mostly females) are the perpetrators of the crime, and their clients are accomplices.

But in criminal law terms, the conduct of a perpetrator (in this case the sex worker) is considered more blameworthy than that of the accomplice.

A 2002 Constitutional Court judgment declared the section inconsistent with the Constitution. The legislature then responded by introducing section 11 to the Sexual Offences Related Matters and Amendment Act.

However, Botha says its wording simply shifts the ‘more blameworthy’ role of being a perpetrator to the client, while the sex worker becomes the accomplice.

‘Although this removes gender discrimination and is more compliant with the Constitution, it is not a progressive step in the direction of decriminalisation. Both the sex worker and client are still liable for prosecution and punishment and are forced to operate underground.’

She adds the opportunity to make changes was missed again recently when the Sexual Offences and Related Matters Amendment Act failed to decriminalise sex work.

Botha says fearing what might follow decriminalisation does not justify continuing to criminalise sex work.

‘It is here to stay, whether legal or illegal,’ she says, adding it is time SA took more progressive steps.

‘Decriminalisation will come with its own challenges and teething problems, but continuing to turn a blind eye to the plight of sex workers will mean that they live in danger. The government can learn valuable lessons from other countries, such as New Zealand, were sex workers are regulated by law. They enjoy better protection against violence, have labour rights, can decline clients and have access to healthcare. Brothels are only allowed to operate in certain areas and child prostitution remains a crime.’

Full analysis on The Conversation site