They are regarded the dregs of society, the shunned shadows of the night.
They are sex workers, and South Africa is home to an estimated 153,000 of them. According to a 2013 study by the South African National AIDS Council (SANAC), of this total, about 8,000 are men and 6,000 transgender.
Women comprise the clear majority, selling their bodies for a living, often facing abuse, persecution and prosecution for their choice. They want rights too, they say.
Unlike some countries, such as New Zealand, where sex work is legal, in South Africa, it is a criminal offence under the Sexual Offences Act of 1957. Sex workers risk being arrested while working or when running a brothel. The amended Sexual Offences Act of 2007 includes a clause that also criminalizes the clients of sex workers.
Luckily for the sex workers, on August 11 2015, human rights watch group Amnesty International passed a vote to protect the human rights of sex workers. Delegates from around the world adopted a resolution authorizing this policy to be developed and adopted.
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In addition, there are organizations such as Sex Workers Education and Advocacy Taskforce (SWEAT) fighting for the decriminalization of the sex trade and for their work to be treated like any other job.
According to Dianne Massawe of SWEAT, sex workers are not usually arrested as per the Sexual Offences Act because it is hard to enforce. Instead, she says, police use public nuisance bylaws to arrest and fine them.
Sergeant Lloyd Ramovha, spokesperson at the police station in Parkview in Johannesburg, says sex workers are charged with prostitution when caught.
“We arrest them and they appear before a judge. There are different charges, sometimes they pay a fine or are jailed for no more than three years,” he says.
The women say the system is unfair.
“One day I was walking in town and the police stopped me and put me in the van only because they know I am a sex worker. Even though I wasn’t doing my work at the time, they arrested me,” laments Pam*, a sex worker in Johannesburg.
SWEAT wants sex workers to register and pay tax, and the industry to be regulated.
“The right of every South African to choose their trade, occupation or profession, as guaranteed in the Constitution, is denied to sex workers because their work is currently illegal. We are pushing for law reform and bylaws that will work for both sex workers and the government,” says Massawe.
She adds that criminalizing sex work will not remove the sex workers from the street.
“We have instead seen an increase in human rights violations of sex workers, which goes against the moral fabric of society, the Bill of Rights and the South African Constitution.”
Pam agrees, saying they are discriminated by most stakeholders in society, not just the cops.
“When you go to the clinic and you have an STI [Sexually Transmitted Infection], the nurses don’t care. When you go to the police station and tell them you have been raped by a client and want to open a case, sometimes they ask you why you say you have been raped yet you are a sex worker. Most sex workers are scared to go and open cases,” she says.
Nelly*, another sex worker, says police sometimes arrest them for carrying condoms in their bags.
“How can we reduce STIs and HIV if police are taking condoms from us? This means they want us to have unprotected sex.”
Nelly pleads for the government to work with them and decriminalize the sex trade.
“Work is work. I am not hurting anyone. Why is my work different when I am taking care of my family through legit means? Is it better when people are sleeping around for free? All I am doing is feeding my family using what I have, so why is my work different?” she asks.
According to Massawe, when industries are criminalized, criminality links to them.
“I once received a call from a client who said he was at a brothel and he noticed that some of the girls there were underage. Currently, the law criminalizes the client so a lot of underage sex work and other crimes go unreported because people are scared of being arrested,” says Massawe.
“Decriminalizing sex work will give sex workers legal recourse because police target sex workers for free sex and bribery. Right now when you speak back at a police officer you risk being abused, assaulted and being locked up,” she adds.
Addressing the issue of sex work and HIV/AIDS, Massawe says the government must ensure that asking a sex worker for unprotected sex is illegal.
“Sex workers are one of the most marginalized groups in the world, who in most instances face constant risk of discrimination, violence and abuse. Our global movement paved the way for adopting a policy for the protection of the human rights of sex workers, which will help shape Amnesty International’s future work on this important issue,” says Salil Shetty, Secretary General at Amnesty International.
The policy will ensure sex workers around the world benefit from the same legal protection from exploitation, trafficking and violence that everyone else enjoys.
“We recognize that this critical human rights issue is hugely complex and that is why we have addressed this issue from the perspective of international human rights standards. We also consulted with our global movement to take on board different views from around the world,” he says.
Other organizations supporting the decriminalization of sex work include the World Health Organization, UNAIDS, Human Rights Watch and the Commission for Gender Equality.
“Because sex work is a criminal offence in South Africa, authorities are feared and distrusted by sex workers. If sex work was decriminalized through appropriate amendments to the law, the sex industry would become more open to regulation and the role of the police could change from persecutor to protector of sex workers,” says fact-checking organization, Africa Check, on its website.
“In addition to broader arguments for the decriminalization of sex work [such as the positive impact on public health through improved sex worker access to healthcare services and HIV prevention], decriminalization would mean sex workers could assist police in identifying people who have been trafficked or otherwise forced into sex work against their will.”
Faith Munyati, a feminist and attorney at Lawyers for Human Rights, says it should be decriminalized because most sex workers are females who form a marginalized and vulnerable group in society.
“It is well documented that women have been, and continue to be, discriminated based on their gender. This in turn results in the occurrence of rape and other various forms of abuse. Criminalizing sex work opens up numerous women to abuse. It puts them at constant risk of exploitation,” she says.
According to Munyati, when police officers arrest a sex worker, they often shame them publicly to “teach them a lesson”.
“Sex workers should not have to succumb to such discrimination because they have the inherent right to dignity.”
Munyati adds that if sex workers were considered to be employees rather than criminals, there is a possibility the negative light they are seen in would be reduced.
“Criminalizing sex work means that there are no regulations on the nature of the occupation. Regulations such as payment of tax or channels to access legal assistance in the case where a sex worker feels an unfair labor practice has taken place,” she says.
Munyati says the solution is for government to be bold and “endorse a feminist approach to sex work, enforcing non-oppressive work structures”.
Sex workers have for years been judged for their chosen profession; is it now time for a fresh perspective on their trade?
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