A critical review of the criminalisation of sex work in South Africa : a comparative legal study

Abstract

The objective of this research is to critically examine the causes and consequences of the criminalisation of sex work between consenting adults in South Africa by means of a comparative approach. In order to achieve this objective, the Constitution of the Republic of South Africa, foreign- and international law were consulted. Sex work is criminalised in South Africa in terms of the Sexual Offences Act, 1957 and the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. It is argued in this study that the criminalisation of sex work and sex workers unfairly discriminates against the sex work profession as other transactional sexual acts are deemed acceptable. It seems that the law is applied selectively and discretionary to the detriment of sex workers. The criminalisation of sex work infringes on the sex worker’s right to equality; dignity; freedom and security of a person; privacy; freedom to receive and pass information or ideas; freedom of trade, occupation, and trade; and fair labour practises. The issue of prostitution should not be dealt with on a moral basis, but on a human-rights basis. In order to test the impact of the criminalisation of sex work in South Africa, it was necessary to investigate comparable countries’ legislative approaches to the purchasing of sex, and their various models of prostitution. The laws and policies pertaining to prostitution in three common-law countries of similar legal background to South Africa, i.e. Canada, India and Great Britain (UK), were compared to the approach followed in South Africa. International instruments that impact on sex work were also examined, and a conceptual and historical analysis of sex work and the law undertaken. After researching the adequacy and implications of the criminalisation of sex work in South Africa and comparing sex work legislation and policies in comparable foreign jurisdictions, the research recommends that sex work be decriminalised, amongst other substantive suggestions.