The basics, by now, are familiar. On 26 May, the South African Law Reform Commission released its Report on Sexual Offences: Adult Prostitution. It was a bittersweet victory for some who had been fighting for the release of the report but were dismayed at its contents.

The Women’s Legal Centre had assisted the Asijiki partners in pushing for the Department of Justice and Constitutional Development to release the report, which had been in their possession for some years. The delay, they argued, resulted in the continuation of abduction, rape, murder and unlawful arrests of sex workers.

But if they were hoping the report would call for decriminalisation of sex work, they were wrong. The report recommended one of two options: first choice being full criminalisation, second choice being partial criminalisation of adult prostitution, meaning all those engaged in prostitution would run afoul of the law except the actual sex worker.

There was an outcry from activists. The Southern African HIV Clinicians Society, the Women’s Legal Centre, Sonke Gender Justice, The Aids Healthcare Foundation, the Sexual and Reproductive Justice Coalition, WISH, the Triangle Project and Nacosa all issued statements in a matter of 24 hours.

Professor Cathi Albertyn, who earlier worked on on the report as commissioner and had worked on the discussion paper with Advocate Thuli Madonsela, told Daily Maverick the report came as a shock. According to Albertyn and other activists, the draft she was overseeing, although an early one that would still have been subject to approval, was heading towards complete decriminalisation, whereas the final version favours complete criminalisation. “So we are talking about a complete 180-degree turn,” Albertyn said.

“We understood that there was going to be resistance from various quarters, but provisionally the research was indicating a move towards decriminalisation was preferable.” After Albertyn left at the start of 2011, her position was not immediately filled.

What happened? Principal State Law adviser Dellene Clark, principal researcher on the project, told Daily Maverick there was no substance to claims there had been a sudden about-turn. Madonsela and Albertyn – and indeed anyone in their positions – would be intended to serve impartially and not to work towards a foregone conclusion, she said. “Advocate Madonsela and Professor Albertyn were assigned as commissioners with oversight over parts 3 and 4 of Project 107 dealing with adult prostitution and pornography and children,” she told Daily Maverick. “Commissioners are appointed to oversee investigations with objectivity and impartiality during their tenure as commissioners.

“The commission only deliberates on recommendations at the conclusion of an investigation after all inputs and comments by the public have been considered, i.e. at [the] report stage. It would be improper for a researcher or commissioner to hold a view and stick to it irrespective of evidence gathered subsequently which does not support his or her view.”

The full commission decided to publish the Discussion Paper on Sexual Offences (Adult Prostitution) in 2009, which detailed four possible legislative models, she added. “No preference was expressed at this point,” Clark said. “It would have been unusual for them to have expressed a personal view towards a pre-determined outcome before the final report was tabled before the commission.”

The report was finalised and approved under the new commission in 2015, Clark explains, and Judge Mandisa Maya, then Chairperson of the commission, was assigned to oversee its completion. The report was approved by the whole commission, a total of six commissioners.

So what did occur? Was it a bizarre U-turn or a correction of improper bias? Or was it simply a change of direction brought on by a lack of staff continuity or even that the research evolved organically? Or is emotive subject matter unintentionally interpreted subjectively on one or more sides of the debate?

Dudu Dlamini is a Sisonke Sex Worker Movement organiser who has been outspoken about the abuse she suffered as a sex worker, and was active during the parliamentary processes leading up to the report’s release. She told Daily Maverick that over the years – and there were many years – the report was probably updated with research and legislative models that contributed to a different final product. Nonetheless, she added, final iteration did not represent the voices of sex workers enough, despite increased pressure to engage with sex worker bodies more recently. Dlamini echoes the WLC in some respects, although the WLC believes the report outright relies on outdated research.

Marion Stevens of SRJC was blunter, citing tardiness and poor methodology. “It goes beyond the question of why it has taken 20 years to release this report,” she said. “This report’s research would not even pass a first-year law student. It is full of wild, unsubstantiated claims. The feminism is about rescuing women. There are claims that employment will be created, with no supporting evidence. One cannot make claims like that without contextualising them and breaking them down. Besides the inadequacy of the actual content, we are simply astonished at why.”

Activist Marlise Richter of Sonke Gender Justice expressed disbelief on Facebook. “This project has been dragging on for 20 years,” she wrote. “Why would the department suddenly come alive on a wintry day in late May, when the whole country is scrambling and screaming in intense anger at the scale and brutality of GBV, and demanding robust plans from government?”

Richter believes the report is a misguided attempt to provide a reassuring response to current concern over gender-based violence. “‘Ahhhh!’ I gasped … This is their response to GBV!” she added. “‘Prostitution’ apparently is inherent violence and by recommending that South Africa continues to criminalise all aspects of sex work, our government is addressing violence frankly and honestly.”

It’s poor logic, Richter argues. “The current criminal law… has helped create a context where multitudes of sex workers have been murdered, abused, raped and dumped like cheap chip wrappers. How is ‘more of the same’ addressing the problem of violence and broken female bodies?”

Richter’s blistering response also took the employment promise to task. “[W]hile swallowing down nausea I note that government added in an unexpected bonus … It gives you, the sex worker, the option to avoid jail time if you apply for rehabilitation,” she wrote. “Yes – the commission recommends that you be put into a diversion programme – where you receive free ‘intensive therapy’ to help you on the righteous path and towards the correct vocation. Sadly, [the report is] not clear on what should happen to your children and extended family members … who depend on you for survival when you are in ‘compulsory attendance’ in this ‘temporary residence’. It is also vague on how you will earn an income after their vocational training, that I suspect will include beading, making AIDS ribbons or weaving straw baskets. South Africa has a 30%+ unemployment rate, but don’t worry – you will get a job in the respectable formal sector in no time.”

One interpretation is that the report is well-intentioned, wishing to tackle social problems surrounding sex work. But critics like Richter and Stevens argue that its proposed solutions are unrealistic.

“It is because they don’t understand the situation of sex workers,” Dlamini says. “If they understand better, the report will look very different.”

The report’s stated objective is to “consider the need for law reform in relation to adult prostitution and identify alternative policy and legislative responses that might regulate, prevent, deter or reduce prostitution”.

“The commission has sought to move beyond popular rhetoric to give a clearly reasoned investigation that is based on an analysis of local and international legal principle, precedent and experience,” it adds.

The SALRC’s argument is, essentially, that a radical change in the legislative framework could cause a cultural shift that would leave women more vulnerable. It does not go into detail on the situation of male or trans* sex workers.

Irrespective of the policy chosen, it says, a national strategy to deal with prostitution should be implemented which supports reskilling and health initiatives; that SAPS should receive training to deal with sex workers and stop confiscating their condoms or harassing them; guidelines for healthcare workers should be developed; and the Department of Social Development and the Ministry of Women should be mandated to deal with issues of poverty. The debate is not one of judgement, it stresses. “Given the nature of the service provided through prostitution, the core question seems to be whether prostitution should be considered to be work and more specifically decent work in the context of an employment relationship.”

Constitutional law expert Pierre de Vos previously questioned what happens when a sex worker fights for basic employee rights. A further issue is whether the report succeeds in providing recommendations that will “regulate, prevent, deter or reduce prostitution”. The Swedish model, which uses partial criminalisation, has been widely criticised. The Swedish government has been unable to prove that partial criminalisation reduced the number of sex workers or had a positive impact on human trafficking. Instead, according to the UNAIDs Guidance Note on HIV and Sex Work, there is very little evidence to suggest that any criminal laws related to sex work stop demand or reduce the number of sex workers; rather, they make a more dangerous working environment. Sex workers are more vulnerable to harassment and extortion from within the police force. Some forms of “indoor” sex work have increased.

Dlamini told Daily Maverick that police harassment was a key concern in South Africa. Partial criminalisation, she believes, is open to exploitation by corrupt officers, because it is most lucrative. “The clients have more money than sex workers,” she says. “It is one thing if you can confiscate the sex worker’s money. It is better if you can confiscate the client’s money.” Partial criminalisation also opens the door to more harassment of sex workers for tip-offs or increased pressure and threats from clients who fear exposure, she says.

Albertyn echoed this sentiment, saying that criminalisation placed sex workers in danger. “Police officers told us arresting sex workers led them to related crimes, for instance drug crimes and theft,” she said. “But the increased health risks and physical dangers related to criminalisation are not a trade-off for incompetence.” Besides, Dlamini added, decriminalising sex work could eventually enable a working relationship between sex workers and police. This occurred in Leeds, where the instituted “safe zone” for sex workers was so successful in improving communication with police that the programme is being considered in Newport.

The main problem seems to be a soup of imperfect solutions. “The report does not adequately tackle the system that leads sex workers either into voluntary sex work or human trafficking,” says Stevens. But decriminalisation does not offer a complete solution either. It does, however, not increase marginalisation or drive sex work underground, where it cannot be monitored and where sex workers fear reporting crimes or health risks; and research to date does show that there is some improvement in circumstances where decriminalisation is instituted.

Mosima Kekana, attorney at the Women’s Legal Centre, explains: “[T]the decriminalisation of sex work… is the only system which will reduce human rights violations… it will reduce arbitrary and unlawful arrests of sex workers, and allow sex workers to freely report cases of trafficking without fear of being arrested. It will promote autonomous bodily integrity, enabling sex workers to negotiate condom usage [and reduce the] spread of HIV.”

One suspects the SALRC would say that’s precisely what they are aiming for, too. But, says Dlamini, there is room for a better solution following public comment. “This is not something for one day,” she says. Minutes from an earlier Committee meeting report that the SALRC notes the existing law passes constitutional scrutiny and there is no obligation to change it. But Dlamini is confident that increasing engagement with sex worker representative bodies cannot but make for more informed revision of the report. “We will not stop fighting,” she says. DM

Photo: Photo of “Mary” by Greg Nicolson.