Illustrative image: Criminalisation has undermined sex workers’ access to justice for crimes committed against them and exposed them to unchecked abuse and exploitation by law enforcement officials. (Photo: thecut.com / Wikipedia) 
Despite progressive strides in gender equality and sexual rights enshrined in our Constitution, sex work remains criminalised. Under this regime of total criminalisation, people selling and buying sex commit a criminal offence.
The criminalisation of consensual adult sex work in South Africa is a remnant of colonial and apartheid-era ideologies. These laws were designed to enforce rigid gender norms and exert punitive control.
Today, this outdated legal framework continues to exclude sex workers from constitutional protection, trapping them in a cycle of inequality, marginalisation and stigmatisation, rendering them ‘free game’.
Forced to operate in an extra-legal realm, they endure frequent human rights violations from clients and police, including physical abuse, sexual violence, and a lack of access to legal and health services. Working in the shadows of the law, sex workers are part of the informal labour market, which compounds their experiences of discrimination and inequality.
The feminisation of poverty, insufficient social services, and deeply ingrained societal attitudes about sex and gender roles intertwine with national policies and power dynamics to sustain their exclusion from legal protections. The Covid pandemic only exacerbated the instability and uncertainty in their lives.
Thousands of sex workers
Research by the South African National Aids Council estimates that there are between 131,000 and 183,000 sex workers in the country, the majority of whom are women. While some choose sex work, many are driven to it by a lack of viable alternatives.
In search of improved livelihood opportunities, personal accounts of their lives reflect stories of love, sacrifice, and longing, supported by statements of pride over hard-earned independence. Considering the complex mix of social, economic and cultural reasons for engaging in sex work, it is an active choice – but within a series of coercive circumstances that sometimes make sex work the only or most viable option for many women.
The transition to democracy in South Africa brought a shift from punishment to social justice. However, this transformation has not fully extended to sex workers.
The legal and social framework needs to evolve to address the complex realities of sex work. This requires a reframing of our approach, moving away from criminalisation and towards a recognition of sex workers’ rights and agency. Perhaps this year’s National Women’s Day on 9 August is an opportune moment for us to start thinking about how we can do things differently.
The concept of intersectionality offers a valuable lens through which to view sex work. This approach acknowledges the multiple, overlapping forms of discrimination that sex workers face, and it aligns with constitutional and human rights principles.
Intersectional lens
By understanding sex workers’ experiences through an intersectional lens, we can better appreciate their resilience, agency, and the challenges they navigate. Intersectionality, therefore, highlights how the experiences of sex workers differ – how sex work can be a choice, albeit exercised within very real constrained circumstances.
While sex work may not be an ideal profession for everybody, we are all constrained in our choices and by our own particular circumstances. So are the women who decide to enter the profession as the best choice to support themselves, feed their family, pay for costly medical care, escape abusive relationships or family circumstances, earn money for university, or due to cultural practices and norms.
In the case of Mahlangu v Minister of Labour (2021), Justice Margie Victor highlighted the need for legal interpretations that aim to remove and rectify the disadvantages caused by intersectional discrimination.
Applying this perspective to sex work means recognising the agency and tenacity of sex workers alongside the hardships they endure. It is about seeing their work as an expression of free will, influenced by broader social and economic forces.
Safety and dignity
For meaningful change, lawmakers must engage with sex workers at both personal and institutional levels. This engagement should inform policies that protect and support sex workers’ rights, ensuring their safety, dignity and agency.
Moving beyond a punitive approach to one of transformative justice acknowledges the systemic issues that perpetuate exploitation and marginalisation. It highlights how power impacts particular women.
Transforming justice for sex workers involves shifting from criminalisation to a framework that recognises and addresses the broader social structures contributing to their exploitation. By centring sex workers’ voices and experiences in policy-making, we can create a more inclusive and just society for all.
While the South African government’s most recent attempts at decriminalisation in the form of the Criminal Law (Sexual Offences and Related Matters) Amendment Bill are welcomed, the underpinning narrative has not yet done enough to cast sex workers as people with agency.
Multi-faceted
Positing the sex worker only as a victim of violence and circumstance is to deny the complex positionality of sex workers’ lives. Rather, when commercial sex is understood as a multi-faceted occurrence, the existence of various constitutive arrangements, power relations and worker experiences within the sector is accepted as a fact.
While this understanding recognises the possibility of exploitation and violence in sex workers’ lives, it also acknowledges the many variations of sex work that make it problematic to reduce sex work to either exploitation or simple sexual labour.
As with other types of work, sex work can have both aspects of exploitation and coercion and aspects of agency and choice. Sex work is, therefore, not automatically reducible to a contemporary form of slavery (trafficking) or violence.
This more nuanced approach seeks to address aspects relating to commercial sex, including stigma, discriminatory practices, and exploitation; the premise being that it is not society that needs protection from sex work, but sex workers that need protection from societal condemnation, stigmatisation and the violation of their human and constitutional rights. DM
Dr Marna Lourens is a Project Manager and Researcher at the Centre for Social Justice at Stellenbosch University.