A criminal justice system under which sex workers are not protected from abuse is unlikely to uphold any human rights. While the Law Commission continues its decade-long hemming and hawing over its recommendations to amend legislation, South Africa’s streets will remain places of rape, murder, bribery and brutality.
Just less than a month ago, a small group of sex workers and sex worker allies and activists congregated in Hillbrow, Cape Town and elsewhere to remember their colleagues who were killed or harmed in 2012. Indeed, 17 December is “International Day to End Violence Against Sex Workers”. You might not have known this. Perhaps the more prominent Day of Reconciliation on the 16th was more on your mind at that time, or you decided to take a well-deserved holiday from news, policy conferences, strikes, symbolic public holidays and speeches, and just revel in the festive spirit.
These two days in December were not synchronised by design, but yet both point to the need to contemplate cruelty, violence and intolerance and how we can free our societies from it. The former was instituted in 2003 by USA-based Annie Sprinkle, a former sex worker who now holds a PhD (evidence that the two are not mutually exclusive), to commemorate the victims of the Green River Killer in Seattle, Washington. On 18 December 2003, Gary Ridgeway was convicted of 48 murders. He confessed to 71, but he also noted that he had killed so many that he had lost count.
“I picked prostitutes as victims because they were easy to pick up without being noticed. I knew they would not be reported missing right away and might never be reported missing. I picked prostitutes because I thought I could kill as many of them as I wanted without getting caught,” said Ridgeway, who continued on his devastating trail of murder for more than 20 years, even though several people knew that he was responsible. Many in the sex work community in Seattle were too scared to speak out. Those who did, were not believed.
This pattern of preying on sex workers by serial killers is discernible elsewhere. There are Sheen Changing and Sheen Changing from China (11 sex workers), Hiroaki Hidaka from Japan (four) and, of course, London’s Jack the Ripper (number of victims unknown). South Africa’s Stewart Wilkes (AKA “Bowtie Boer”) was convicted in 1998 of seven murders, some of them sex workers, in Port Elizabeth. Several of these killers were not brought to book for years.
It would seem that sex worker murders and abuse do not count for much, perhaps particularly so in bloody South Africa. Violence and crime permeate our consciousness. Public responses to bloodshed, aggression and brutality often depend on whether a family member, friend, acquaintance or neighbour was attacked. Chances are that you are not related to any of the sex workers killed or maimed by serial killers, vicious clients or ruthless police. Why should you care? In fact, with the limited capacity for caring each of us has, can you afford to care?
Let’s move beyond personal responses, and focus on the system that could have produced these atrocities, and our limited capacity to respond to it.
Sex work in South Africa is a crime. Remnants of the old Immorality Act are still alive and kicking in 2012 in the form of S 20(1A)(a) of the Sexual Offences Act. This provision makes you a criminal for having sex “for reward”.
What is reward? The vagueness of the definition should trouble you, since this dinosaur law does not provide guidance on what this entails. Fortunately, the Department of Justice has recognised that we are no longer living in the 1950s. It charged the South African Law Reform Commission with the responsibility of coming up with recommendations on how South Africa should approach the emotive issue of sexual morality and the role of the state. The Law Commission has hemmed and hawed for more than a decade and has not yet given us any concrete recommendations. It does not help that the Law Commission is currently without commissioners because Minister of Justice Jeff Redebe has overlooked his duty to reappoint them. This has been the case since the beginning of 2012, leaving law reform processes in limbo despite promises from the acting deputy chief state law adviser that these appointments are “imminent”.
While we wait for the Law Commission to re-start, consider this: The world’s foremost female philosopher, Martha Nussbaum, recently explained in the New York Times that “Keeping prostitution illegal only increases the threats of violence and sickness and abuse that women face because illegality prevents adequate supervision, encourages the control of pimps and discourages health checks.”
When sex work is a crime, the law gives sex workers little protection. Sex workers are beaten, raped, bribed and pepper-sprayed by lawless members of the police force. This happens to them while on the streets, while walking to shops or sleeping (alone) in their homes. Sex workers are often ridiculed at the police station front office when they try to report rape, theft or other crimes. In Rustenburg in September last year, 14 sex workers found working on the street, were forced into a closed police van, pepper-sprayed and left overnight. Legato battled to breathe throughout the ordeal, and everyone in the van shouted and begged the police to open the van for air or to assist her. Their pleas fell on deaf ears. Legato died at dawn. One of her colleagues notes in an affidavit how she closed Legato’s eyes after she had stopped breathing. Yet, despite the danger to themselves, Legato’s colleagues are bravely seeking justice for what had happened. The Women’s Legal Centre and Lethabong Legal Advice Centre brought a complaint on behalf of the Sex Worker Education and Advocacy Taskforce (Sweat) and the sex workers involved, to the Independent Police Investigative Directorate. Their complaint and follow-ups have not yet been successful.
The vulnerability of sex workers is also our vulnerability. A criminal justice system that brutalises sex workers is one that is likely to do the same to others. An Independent Police Investigative Directorate that is reluctant to act on acts of inhumanity by members of the police, is one that is likely to disregard other complaints too. A society that ignores cruelty against its most vulnerable members, will continue its heartlessness irrespective of how many Days of Reconciliation are observed.
What is also clear is that outdated laws, old-school moralism about a “good and virtuous” woman and careless mindsets all play lethally into a situation where brutal killings and police malice barely raise a response from us, the public, or those who oversee the police.
Or worse: where some may quietly think “they got what they deserved”.
And the law? The law contributes to our own callousness and disregard. This is because it makes criminals of women, men and transgender people seeking to sell sexual services. One important step is to change the laws that criminalise sex work, and to respect sex workers and how they make a living.
Abolishing all criminal penalties for sex work would challenge the stigma that surrounds sex workers. It would help secure theier human rights and dignity, and make for safer work and living conditions for them. And for us.
While law reform is no panacea for age-old “social problems”, it is a vital first step.
Making sex workers criminals is counterproductive, irrational and cruel. Every day that the police spend resources on “raiding”, “clamping down on” or harassing sex workers, is one more day that makes others more vulnerable, and is one more day during which fewer resources can be used to round up real criminals, and bring them to justice. DM
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Marlise lives in Cape Town, is an avid Ultimate Frisbee player, a Guerrilla Gardener and a fan of Fast & Furious movies. She works within the Policy Development and Advocacy Unit at Sonke Gender Justice and focuses on the areas of decriminalisation of sex work, as well as prison reform. She aspires to - one day - write like Peter Singer, debate like Eusebius McKaiser, have the courage of Steve Biko, the hairstyle of Yo-landi Vi$$er and a vegan lifestyle like Carl Lewis.
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