Sex for sale : a comparative analysis of legal models and the socio-economic determinants informing law reform in South Africa

Abstract

The overarching purpose of this research is to establish the need for legislative and policy reform in respect of the exchange of sexual acts for reward and peripheral crimes in South Africa. It has sought to do so through interrogating the context and the socio-economic determinants at work in South Africa, Canada, Sweden and India; and how each country’s unique context intersects with the chosen policy and legal framework. As a starting point the current criminalised legal framework is positioned as a constitutionally permissible legislative choice. In light of the fact that legislatures the world around draft legislation which regulates sensitive areas of morality, it would seem that the underlying question is which interpretation or understanding of morality should be used to inform legislative reform. This thesis is based on the assumption that the chosen legal framework is a policy choice and argues that this policy should be informed by available evidence and rational analysis, as opposed to political ideology. Evidenced-based research has been used to consider the complexity of the primary socio-economic drivers of poverty, inequality, unemployment and intersecting vulnerabilities such as early exposure to sexual violence as causal to entry into the sale of sexual services. Three global themes underpinning the need for law reform have been considered comparatively, including documenting the unfolding developments around law reform. This research has considered South Africa’s obligations in terms of binding international instruments to bring about normative change in respect of gender-based violence; recognise economic and social rights; curtail aspects associated with the exploitation of prostitution; guard against sex tourism; suppress all forms of trafficking in women, and address patriarchy and traditional stereotypes of women as sex objects. It is axiomatic that the solution to a problem sustained by socio-economic drivers is to be found in the disruption of those very same drivers. The outcome of this research is a recommendation in favour of substantive equality in the form of a country-specific legal framework of partial criminalisation coupled with the realisation of socio-economic rights.