Stefanie Kotze’s opinion piece published by the Mail & Guardian on 7 December last year speaks out against the decriminalisation of sex work, which is currently proposed in a new bill published by the cabinet. Kotze says: “All people should be able to enjoy real choices about how to make a living — and none should be forced into prostitution to survive.”
Ironically, this is exactly what sex workers and supporters of the decriminalisation of sex work are asking for — to be able to choose how they make their living and to do so in an environment free from violence and abuse.
Saying no to the decriminalisation of sex work does not defend the dignity of any adult who chooses to sell sexual services. In fact, saying no to decriminalisation denies individuals the right to choose what they do with their bodies.
Rejection of ‘biased’ Law Reform Commission report
Kotze’s opinion is based primarily on the 2017 South African Law Reform Commission (SALRC) Adult Prostitution Report that, after 27 years in the making, recommended the continued criminalisation or partial criminalisation of the sex industry.
However, this report was rejected (not “blatantly disregarded” as Kotze claims). This fact is key to understanding the path the state has taken in recognising that the criminalisation of sex work does not work — and in fact only increases the violence and abuse that those in the industry face.
The SALRC report reveals not only a weak and questionable methodology and evidence base but critically, an inherent bias in which the key assumption of women as victims drives the discussion and conclusion that sex work should remain criminalised. Shockingly the report recommended that sex workers should be rescued and “rehabilitated” — a suggestion that literally strips a person of dignity by denying them a right to choose.
The SALRC report and Kotze’s article are based on the same assumptions about sex work which continue to cloud understanding of the sex industry and of the views of sex workers themselves. This is despite — or perhaps because of — such a significant and critical move towards decriminalisation by the South African state.
Sex work is work
Selling sex is often a pragmatic response to a limited range of options for many people including those with disabilities, those unable to access documentation, those who are mothers and/or have dependents at home, and those who for various reasons have not been able to access other forms of employment.
Ignoring these realities enables support for punitive legal approaches to sex work which disproportionally punish the most marginalised and vulnerable workers. An example is the so-called “Nordic Model” which criminalises the purchase of sexual services and sex buyers and decriminalises sex workers.
Adopted in a number of countries, including the Republic of Ireland, Sweden, Norway, Iceland, Canada, France, Northern Ireland and Israel, this approach is strongly opposed by sex workers and sex worker-led organisations who argue that it leads to higher rates of violence and discrimination against the community and also fails to address the material conditions that lead people into doing sex work.
The argument of “no demand, no supply” for example ignores the fact that a sex worker has a demand — a need for work to earn money. The customer is the supplier. Taking away the customer does not remove a sex worker’s need. It takes away their survival strategy in the name of pseudo-feminism.
It also takes away protection and drives the industry underground. A 2019 study by sex worker organisation Ugly Mugs Ireland found that crimes against sex workers had almost doubled in the two years since the “Nordic” law was introduced, with violent crimes increasing by 92%.
There is no doubt that sex workers face risks and high levels of violence in the work that they do. But this is not, as Kotze argues, because sex work is inherently violent and exploitative. Stigma and misogyny (which are reproduced by the criminalisation of sex work and those that support it) enable discrimination, abuse and violence against sex workers to continue with impunity.
In fact, there is clear evidence from many contexts across the globe that directly links the criminalisation of sex work with a multitude of human rights violations against sex workers. All sex workers’ lives matter and they are asking for the removal of all criminal sanctions and the improvement of their working conditions.
Recognising choices – even for survival
Research shows that some sex workers make lots of money, and some do not. Some are mothers, breadwinners, students, fathers and transgender. Some work on streets, in brothels and in hotels.
Recognising sex work as work does not invalidate the experiences of individuals who have exited sex work or those who have been sexually exploited. Nor does it mean that sex work must be seen as empowering or an “ideal” choice of employment. It simply means acknowledging that sex workers deserve equal rights and opportunities rather than offering to protect their dignity by forcefully rescuing them from the option of making a living.
Poverty does force many people into work that Kotze may find distasteful and sex workers choose this form of work over other kinds of work that pay significantly less. Criminalising does not end the cycle of poverty and, despite the promises and assurance of many anti-sex work campaigns, they are not presenting viable alternatives.
It is unlikely that a sex worker, domestic worker or cleaner, if offered a well-paid, comfortable and practical job, would turn it down. But the reality is that these do not exist — and no amount of training in bead-making or painting nails (as recommended in the SALRC report) is going to change this.
Sex work is work, and all work exists in a reality of constrained choices, gender and other inequalities — criminalising sex work will not and does not address this.
The scapegoating of sex workers deflects from addressing the system in which we are all complicit and which fails to address the realities facing so many South Africans
Sex workers are asking for the bare minimum of being able to work in an industry that meets their current needs without having to prove its intrinsic value to deserve safety and protection.
Decriminalisation does not increase human trafficking
Kotze, like many others, also falls back on the easy but unsupported claim that the decriminalisation of sex work will increase human trafficking.
The conflation of sex work and sex trafficking is a key feature of the stigma surrounding sex work and purports a moral ideology that sex work and sex trafficking share similar characteristics of exploitation and victimhood.
The distinction between trafficking and sex work pivots on individual agency — where trafficking is defined by coercion, forced movement and exploitation, sex work is defined by consent to the sale of sex. This distinction is critical. It not only prevents misrepresentation of the sex industry but also supports efforts to tackle trafficking and protect trafficking victims.
Conveniently, Kotze fails to mention that despite South Africa criminalising sex work for the past 50 years, with clients explicitly criminalised for the past 16 years, this has not led to a decrease in trafficking. Therefore, suggesting that sex work should stay criminalised to prevent an increase in trafficking is not only misleading but again exposes a failure to engage with credible research and evidence.
Research shows that sex workers can play a critical role in anti-trafficking and addressing issues like underage persons selling sex. Proponents of a decriminalisation model of sex work in fact hold that this model of non-criminalisation will open up the industry and will enable police to locate trafficked victims and instances of exploitation as well as minors entering the industry. Indeed, a five-year review of the decriminalised system in New Zealand reported that cooperation between sex workers, police and other agencies provided useful information about criminal activity.
Dignity to work in a legal system without abuse
The move by the South African government to decriminalise sex work has taken decades of hard, painstaking and relentless work, pushed by sex worker-led organisations, supported by civil society and rights-based organisations, and carrying with it the lives of many sex workers lost to the violence and brutality that the criminalisation of the industry has sanctioned.
Decriminalisation offers opportunities for redress related to human rights abuses and working conditions within the sex work industry. The National Strategic Plan on Gender-Based Violence and Femicide explicitly set out under Pillar Three the need for the decriminalisation of sex work by 2023.
The government is listening to facts and evidence when it addresses the repeal of outdated and harmful laws. There is abundant evidence, for example, that policing authorities are high on the list in relation to violence and abuse against sex workers.
Decriminalisation will drastically reduce these forms of violence and reposition governmental services to protect and assist persons who happen to be selling sex. Sex workers themselves are positioned, willing and able to improve their working conditions and address the health and safety concerns within the industry.
No doubt strong and polarised views regarding the decriminalisation of sex work will continue to be shared, especially as we get closer to the realisation of the decriminalisation bill.
However, as we engage in discussions and debates, let’s follow the decisive steps of the government in finally listening to sex workers, in rejecting claims that they can only ever be victims and spoken for by those who claim to know more about their lives and needs than they do.
Sex workers are not asking for their dignity to be defended, they are asking for the freedom to work in a legal system that does not penalise them for making a living.
