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Media Briefing: Report On Sexual Offences: Adult Prostitution

26 May 2017

Deputy Minister of Justice and Constitutional Development, Mr John Jeffery
Professor Vinodh Jaichand
Members of the media

We have recently witnessed terrible reports of sexual and gender-based violence and the loss of life. As government we are concerned about these heinous crimes, especially as it affects the most vulnerable people of our society, women and children.

At the same time, consensual sexual relations and, in particular, the buying and selling of sex also demand our attention. Adult prostitution is an emotive topic, it is fraught with complexities and unwavering viewpoints in its various form and manifestations. These complexities include the definition of what constitutes prostitution.

Many people have different opinions on the issue. Therefore, it is important that we take the initiative to consider public opinion on the legal framework around prostitution and that we mobilise society to contribute in finding a lasting solution – a solution within the ambit of the Constitution. For this reason, meaningful public consultation of the topic of adult prostitution is imperative.

Our government has a constitutional responsibility to promote the values of human dignity, the achievement of equality and the advancement of human rights and freedoms. We are also obligated to observe several international legal instruments, including the United Nations Convention on the Elimination of all Forms of Discrimination Against Women, 1979 towards the combating and, ultimately, eradication of violence against women.

The selling and buying of sexual services and related activities and the question of how the South African legal system should respond has been the subject of considerable public debate in South Africa.

Currently the selling and buying of sexual services are criminalised in various sections contained in two separate laws, namely the Sexual Offences Act and the Criminal Law (Sexual Offences and Related Matters) Amendment Act.  There are also various by-laws which directly or indirectly apply (e.g. certain municipalities use the “riotous behaviour” or “loitering” by-laws to remove or prosecute sex workers).

Our experience aligns with international debates around this matter and the diverse remedies that have been employed to address prostitution and prostitution related matters showing just how complex the issue is.  Within the current South African context the debate around adult prostitution has been complicated by a number of socio economic factors which include poverty, inequality, unemployment and crime. 

In line with the Constitution and with regard to the Convention on the Elimination of All Forms of Discrimination against Women, conventions on trafficking in persons and our international obligations to eradicate violence against women and to take active steps against the exploitation of persons involved in prostitution, we are today releasing the Report on Sexual Offences: Adult Prostitution for public consultation, as approved by Cabinet on 26 April 2017. Cabinet supported the Department of Justice and Constitutional Development’s decision not to make a policy choice at this juncture and the Department’s proposal to revert to Cabinet following public consultation on the report. This report comes against the backdrop of the Constitutional Court judgment in the matter in which the court left it to government to set policy as it upheld the existing law as it did not find it necessarily to be in direct violation of the rights in the Constitution.

The report was compiled by the South African Law Reform Commission (SALRC) following extensive research relating to the circumstances around prostitution and the applicable legislation.

In the main, the report is aimed at reviewing the fragmented legislative framework that currently regulates adult prostitution. The statutory provisions under review are contained in the Sexual Offences Act 23 of 1957 and the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (the Sexual Offences Amendment Act) which criminalises the selling and buying of sexual services and related acts.

The secondary aim of the report is to consider the need for law reform in relation to adult prostitution and to identify alternative policy and legislative responses that might regulate, prevent, deter or reduce prostitution. Due to a range of legal responses to prostitution in open and democratic societies, it is essentially a matter of policy to decide which legislative model is in line with the National Development Plan’s  goals and strategies, and enjoys the support of the majority of our people without completely disregarding minority views on the matter.

In other words, it is important to note that Government is not constitutionally obligated/bound to change the existing law or to follow a particular model – it is a policy choice and there are a range of legal responses possible to address prostitution in open and democratic societies. A change of the law will only be embarked on if a policy decision has been made to do so and after that matter has been properly interrogated in Parliament. 

Consequently, the report is accompanied by two draft amendment Bills as options which contain the repeal of the Sexual Offences Act and amendments to the Criminal Law (Sexual Offences and Related Matters) Amendment Act. This consolidates all matters relating to sexual offences in one Act.

During the research process, the SALRC found that prostitution in South Africa is driven by a complex interplay of social and economic drivers that include poverty, inequality and unemployment

The report indicates that exploitation, particularly of women, is inherent in prostitution and depends on contingent external factors related to gender violence, inequality and poverty; and that such exploitation does not arise merely in response to the legislative framework. Therefore, it concludes that changing the legislative framework could create an extremely dangerous cultural shift as juxtaposed against the high rate of sexual crimes that are being committed against women and may render them even more vulnerable than at present.

The report also notes that the prevalence of prostitution in our society and the inherent exploitation associated with it are primarily social phenomena, which reflect deep-seated economic and sexual inequalities. This situation is perpetuated by the limitations in the laws that are supposed to deal with these social issues. For this reason, the report contains both legislative and non-legislative recommendations.

The first option which is the Commission’s preferred option is to retain a totally criminalised legal framework.  This option is coupled with an opportunity for people in prostitution to divert out of the criminal justice system so that they can access supportive resources and systems in order to exit prostitution if they should choose to do so.

The second option favours the partial criminalisation of adult prostitution.  This option criminalises all role-players engaged in prostitution with the exception of the person providing the sexual service.

The Commission found that despite mounting public and official concern about prostitution, South Africa has no clear strategy for dealing with prostitution, either on a primary and preventative level or on a secondary and intervention level.  

We are convinced that the legislative proposals contained in the report will improve the present system as it applies to adult prostitution and ease some of the complex realities faced by South Africans engaged in prostitution, such as socio-economic marginalisation of women and the impact of the HIV/AIDS pandemic. Non-legislative recommendations are included in the report for the attention of critical role-players within government relating to their spheres of responsibility. 
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Although this report focuses strictly on adult prostitution as narrowly defined in the law currently, there may well be issues that are brought forward in the public engagement that further expand the discourse to include related aspects.
It is important that we participate and assist in finding a solution for these challenges. We all have a responsibility to rise against gender based violence and build a human rights based society.