I am writing to you now that my fingers can type again after feeling numb with disbelief at the South African Law Reform Commission’s recommendations released just before the weekend.
Dear Sex Worker friends and colleagues and allies,
There were rumours late on Thursday afternoon that the Department of Justice and Correctional Services would brief the media on law reform options on Friday, but I found it hard to take seriously. This project has been dragging on for close to 20 years – for 10 of which I have been a proud ally in the ranks of inspirational and brave sex workers and sex worker human rights advocates calling for the decriminalisation of sex work, and pushing hard for the South African Law Reform Commission (SALRC) to release its proposals.
Why would the department suddenly come alive on a wintry day in late May, when the whole country is scrambling and screaming in anger at the scale and brutality of gender-based violence (GBV), and demanding robust plans and clear targets from government? Sex work has never been high among government’s priorities. I frowned in bafflement at this strange timing.
“Ahhhh!” – I gasped when I eventually read the report. “This is their way of responding to violence against women, to abuse of women, to the relentless endangerment that women in our country face every day!”
“Prostitution” supposedly is “inherently exploitative”. And by recommending that South Africa continues to criminalise all aspects of sex work, our government could at last address violence frankly and honestly.
I scratch my head at the commission’s own internal logic. It doesn’t make sense. The current criminal law – the one the commission says must stay – has contributed directly to a climate in which sex workers are murdered, abused, raped, exposed to HIV and dumped like cheap chips wrappers. How does “more of the same” address the problem of violence and risk and broken female bodies?
Reading further, I note that the commission has added an unexpected bonus or a little reprieve. It gives you, the sex worker, the option to avoid jail time if you apply for rehabilitation. Yes, the commission recommends that you be put into a diversion programme where you receive free “intensive therapy” to help you along the righteous path and towards the correct vocation.
Sadly, the draft legislation in the report, set out in sections 11(J)(5)(a-b), is not clear on what should happen to your children and extended family members in rural KwaZulu-Natal or the Eastern Cape who depend on you for survival while you are subjected to “compulsory attendance” in this “temporary residence”. It is also vague on the details about how you will be earning an income after their vocational training. Perhaps vocational training will include beading, making AIDS ribbons or weaving straw picnic baskets – all useful and dignified occupations, but not what those who are pushing this silliness themselves engage in. (Besides, dear friend, you probably know from personal experience that South Africa has one of the highest unemployment rates in the world with a conservative estimation of 26.5% according to the latest StatsSA data, but don’t worry – you will get a job in the respectable formal sector in no time. The SALRC and its proponents will make sure.)
I close the report. I cannot bear reading the word “prostitute” one more time, with its deliberately stigmatising contempt. I cannot bear to read the smug, moralising phrases that pepper the text – “sexual exploitation”, “prostitution is degrading to the prostitute and to women in general”; “prostitution is equated with rape”, “one theory labels prostitutes as ‘vectors of disease’ causing a cesspool of iniquity and contagion that should be curbed through criminalisation”, and “immoral purposes”. (I fear that I might stumble upon sections seriously considering flogging, burning at the stake, beheading or other related witchcraft punishments that were trending in the Middle Ages.)
My distress nearly chokes me. But then a consolation occurs to me – small, but real. I remind myself of this: The commission is not an impenetrable institution with nameless bureaucrats. This report was compiled and approved and endorsed and released by warm-blooded humans. Probably middle-class, sophisticated, comfortable humans.
They should take responsibility for its reckless travesty of justice. The report was signed off by Judge Mandisa Maya as chairperson in June 2015. She has just been appointed President of the Supreme Court of Appeal. She must feel her moral responsibility for this repugnance.
Other commissioners include Judge Jody Kollapen (former head, yes, head, of the SA Human Rights Commission and current Constitutional Court hopeful), Prof Vinodh Jaichand (recently fired by Wits Law School) , Mr Irvin Lawrence (director at ENSAfrica), Advocate Mahlape Sello (lawyer for suspended national police commissioner, Riah Phiyega), Ms Namhla Siwendu (attorney) and Dellene Clark (SALRC researcher).
These commissioners – who are comfortable, earning big salaries and living protected lives – have decreed that the safety of the law should be denied to sex workers. They should be held accountable for their shameful approach to sex worker dignity. They should take responsibility for state-sanctioned invasion of adult, consensual sex. They should take personal responsibility for a reckless continuation of the war against sex workers’ bodies. I invite them to meet with us face to face, a delegation of sex workers and sex worker activists, to listen in good faith to our stories and to our evidence. And then to look sex workers straight in the eyes and say, “You are a criminal and you need rehabilitation.”
Sex worker friends and colleagues, it is only right that I, a middle-class woman living in relative comfort and safety myself, should apologise on behalf of these commissioners for the horrors their report will inflict on you.
I am so sorry that South African lawmakers have yet again betrayed you.
I am so sorry that, like the AIDS denialists of just 15 years ago, they have rejected reason and evidence in formulating public policy. I am so sorry they have blinded themselves to our evidence, the mountain of peer-reviewed academic research on public health and human rights, the many international bodies’ support for the removal of the criminal law from sex work, and our appeals to recognise the agency and humanity of sex workers.
I am so sorry that they, instead, have hunkered down in their comfortably superior sexual moralism, their fervour to condemn and ostracise and preach, and their blindness to class.
I am so, so sorry that government may think it can use you as a scapegoat and political pawn for the GBV scourge that is engulfing our country
I am sorry – more than sorry, I am ashamed – about this inhumanity.
But, please be assured. This fight does not end here. The revulsion and anger this report with its disgraceful recommendations evoke will only generate more action, more determination, more hope. Know that you have the support, love and unrelenting commitment of colleagues and sex worker allies.
We will continue to fight this fight against the criminal law.
And we will win this fight! Stay strong!
Yours in solidarity,
Marlise Richter DM
Marlise Richter is Policy and Advocacy Manager at Sonke Gender Justice
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.