Stop Decriminalization of Prostitution


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23 September 2002

Philip Rosenthal, Editor, writes:

Please find below, a summary of the South African Law Commission issue paper on prostitution, by Christian activist Jan Eksteen. The law commission paper is 227 pages long, so the summary below should help you to respond more easily. Please do so before the end of October and if possible do so in the name of your church or Christian organisation.

Best wishes
Philip Rosenthal, Editor
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Summary & Analysis of the SALC Issue Paper on Adult Prostitution

The South African Law Commission’s issue paper on adult prostitution (hereafter referred to as ‘the document’) contains no draft bill but sets out three options before the general public without endorsing any one specifically, namely criminalisation of prostitution, legalization (implying limited operation, e.g. ‘red light districts’), and decriminalization (virtual unrestrained operation). The commission will also be informed by the constitutional challenges presently underway (§1.30). Submissions (to This email address is being protected from spambots. You need JavaScript enabled to view it. , anonymous submissions also welcome) that call for criminalisation must indicate (§10.22):

1. Whether total or partial criminalisation is called for, in other words, criminalisation of the act of prostitution itself also, or only of related activities such as soliciting, brothel keeping, etc., 2. Whether clients are also guilty of offenses (the commission seems to take strong exception to gender imbalance here – don’t let this become the prime issue), and 3. What measures are recommended to address the concerns arising from the current system of criminalisation.

Aside for minor technical problems with the definition, prostitution is defined as a women’s engagement in indiscriminate sexual relations for pecuniary gain (§4.6). In South Africa the committing of an act of prostitution as well as related activities, such as soliciting and brothel keeping, are currently illegal. The government has stated that the existing legislation possibly violates a number of constitutional rights (§2.7). If criminalisation is opted for after all, the legislation will reportedly require some streamlining to pass constitutional scrutiny. The current government in general and the Gauteng cabinet in particular appears to show a consistent inclination towards decriminalization. Non-governmental initiatives serving prostitutes’ interests in S.A. include SWEAT (Sex Worker Advocacy and Education Taskforce), and DECPRO (Decriminalization of Prostitution Network), consisting of members of SWEAT, Lawyers for Human Rights, and law academics, but subsequently demised due to a lack of funding. The document was in fact prepared, together with the SALC and others, by a specialist consultant who was a member of DECPRO, operating on, amongst others, German and Swedish funding, and who is with the University of the Western Cape.

The document presents the ancient, wide acceptance of prostitution outside the Judeo-Christian world, and its toleration inside it. Criminalisation is, however, ultimately credited to the Protestant reformers. No Judaist authorities are mentioned and no biblical scriptures are given. The abolitionist approach is represented in this document as treating all prostitutes as victims of ‘exploitation’ to be saved like as from slavery. It maps the abolitionist approach as a counter-reaction against Britain’s regulationist approach in the 1800s to its supposed pinnacle in the 1949 Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others (hereafter referred to as the ‘1949 Trafficking Convention’). This might create an impression of the 1949 Trafficking Convention as being a carry-over from a naïve period characterized by distorted perceptions and sensational, untested abduction rumors. Wherever mentioned, the document is careful to cite criticism of the 1949 Trafficking Convention. Main debates around modern prostitution are presented as discussions around ‘prostitution as work’ and around prostitution as inherently ‘exploitative’. Exploitation in prostitution is expounded as the elements of violence, domination and fear testified to by those who were in the business. Proponents of prostitution-as-work often claim that the exploitation in prostitution won’t end until it is recognized as a legitimate job.

The seeming solution would have been obvious, were it not for the other elements of the main debates around prostitution, namely the traditional concerns over prostitution as attracting crime, as being harmful to family values and society and as being a public nuisance. Much criticism is cited in the document to these concerns, in fact, the sterile treatment and aggressive antagonistic dissection of some dearly held values is at times shocking, particularly §4.48, 51. Christianity is portrayed as a ‘taught pattern of behavior’ and a ‘religious ideology’, and moral concerns about the threat to family is consequently reduced to mere religious claims. Nothing is done to explore any merit in the claims or any real consequences of family breakdown and no references in support of these claims are cited. Cited objections to the other conservative concerns are numerous, at times difficult, and often not satisfactory or convincing, particularly §4.43-47. Absent from the main-debates discussion is what to many if not most is the main point of concern, namely the inherent impact of prostitution on the mental and spiritual health and social acceptance of the prostitute and any children she might have – regardless of whether violence is involved and regardless of whether it is legalized or decriminalized. It appears as if the document attempts to class this all-encompassing concern with one small, alluded reference under ‘exploitation’ and furthermore fails to disconnect it from violence. (The same applies to the document’s previously mentioned definition of abolitionist’s concerns as being merely about ‘exploitation’.) Also absent is any mention – let alone discussion – of the corresponding mental and spiritual impact of prostitution on the ‘client’, who might not have premeditated his involvement.

The advanced state of development of the illegal prostitution industry in S.A. is described in relative detail. Attempts to chart and explain the growth of the local industry, which could have indicated corrective measures, appear lacking except for statements that the current state of criminalisation makes any quantitative studies ‘difficult’. Elsewhere it is stated, however, that due to various reasons there appears to be no national policing strategy (§5.50,53,56) and that prostitutes advertise their services almost freely in daily newspaper classified sections despite the current state of criminalisation (§5.16). Interestingly, the industry is divided, amongst others, into ‘subsistence prostitutes’ (typically black, rural, poor and up to 60% HIV positive (§8.18)) and ‘high living prostitutes ’ (usually white, urban, financially better off, and drug users). A major recurrent theme in the report is that the criminal status of prostitution deprives prostitutes of their right to personal security, access to labor legislation, access to occupational safety legislation (§5.28), and of hindering proper management of the HIV/AIDS pandemic amongst prostitutes by themselves and concerned institutions. No mention is made of any possible tendency of the current legislation to have helped to limit the influx of economically marginalized women into this harmful and dangerous practice.

After all of the above considerations, the wording of the 1949 Trafficking Convention can be relieving: ‘…prostitution and the accompanying evil of the traffic in persons for the purpose of prostitution are incompatible with the dignity and the worth of the human person and endanger the welfare of the individual, the family and the community.’ (§7.3) The convention currently has 73 signatory states and is still the major international instrument dealing with prostitution. Sadly the relief is short-lived due to the document’s cited criticism on the 1949 Trafficking Convention’s ‘abolitionism’ seemingly in favor of the CEDAW convention (§7.9-15). This convention recognizes that poverty drives many women into prostitution and calls for their equal protection under law, but then fails to impute any harmful effects to prostitution per se or criticize prostitution per se.

Jan Eksteen

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