The ongoing debate as to whether the sex trade in South Africa should be decriminalised or legalised has gained momentum as the 2010 Soccer World Cup approaches. In this article we take a look at various reasons why this should happen, and ask for your feedback.

The decriminalisation of sex work is recommended in South Africa’s HIV and AIDS and STI National Strategic Plan (2007-2011), and supported by both South African National AIDS Council (SANAC) and the Sex Workers Education and Advocacy Taskforce (SWEAT), but the process of changing the law remains under the South African Law Reform Commission, which began reviewing the Sexual Offences Act seven years ago. An initial bill for parliamentary debate is not expected to be ready until March 2010, and any changes in legislation would not be passed before 2011. In the meantime, advocates of decriminalisation have called for a moratorium on arrests of sex workers during the World Cup.

Marlise Richter, a Health Researcher with SANAC, says the merits of decriminalisation are many; chief among them reproductive health for sex workers. Health activist Tim Bannet of the World AIDS Campaign shares Richter’s view. Bannet says HIV transmission will be significantly reduced if sex work is decriminalised. South Africa expects at least 450,000 visitors during the World Cup and, according to Bannet, sexual activity will increase exponentially. The prospect is chilling for a country that has the world’s highest HIV and AIDS rate. (According to studies by UNAIDS, South Africa accounts for 17 % of global infections).

A recent consultation held in Cape Town on HIV, sex work and the World Cup, co-sponsored by (SWEAT) and SANAC, brought together civil society, government, and other key players to discuss the potential impact of the World Cup on the local population, with a particular focus on developing strategies to address HIV risk in the context of sex work. Richter stated “There are actually almost no sex work programmes in place at the moment. If we look at healthcare-specific programmes [for sex workers], there’s very little, and this is what we should be doing in terms of the National Strategic Plan [on AIDS].” She also noted that legalising sex work would make it easier for sex workers to protect themselves and their clients from HIV. “In a context where sex work is legal and seen as legitimate work, where we have a labour law framework in place, it will mean that sex work will be safer, and that the tourists and clients who come will be safer.”

Among the draft recommendations that emerged from the two-day meeting were the need for human rights training, a government directive to end police harassment of sex workers, public health messages specific to sex work, and a moratorium on arrests of sex workers during the event. It was also stressed that safer sex campaigns should target not only sex workers, but also their clients, non-paying partners, and the general public.

The German “Fair Play” campaign, which ran during the 2006 World Cup, was cited as a good example because it increased condom distribution and started targeting sex workers and their clients with messages about safe sex more than a year before the kick-off.

According to the recommendations, the South African campaign should include the distribution of male and female condoms packaged with a soccer logo and lubricant. Coasters printed with the message: “Don’t leave this bar without picking up a condom”, could also be placed in bars and pubs where soccer will be screened.

Vivienne Lalu, an Advocacy Coordinator at SWEAT, has warned that the distribution of condoms is only part of the answer. “You can throw 20 million condoms at sex workers and do all the safer sex workshops, but if sex workers are continuously denied their human rights, you’re never going to be able to implement that information.”

Dianne Massawe of SWEAT says that the decriminalisation of sex work would go a long way to prevent abuse of sex workers by the police, who currently harass and arrest them, although charges are very seldom brought against them.

According to the South African Law Reform Commission (“SALRC”), which is in the process of producing a Discussion Paper on possible changes to the legislation dealing with adult sex work, following on from the Issue Paper produced in 2002, not all sex work is linked to organised crime, although there may sometimes be an overlap between the two, as it is the illegal status of sex work that makes it an fitting partner to organised crime.

Because sex work is illegal, this makes it easy for criminals to get involved in the “protection racket”, as sex workers cannot or will not go to the same police that arrest and harass them, for protection or assistance if they have been beaten up or raped. Protection is therefore sought in the form of pimps, boyfriends or other sex workers.

Decriminalising the sex work industry would preclude the need for protection outside of the police services. It would also enable sex workers to access services  which are taken for granted by persons able to prove an income, such as opening a bank account, securing accommodation and access to loans, all of which are currently not available to them, and therefore makes them more vulnerable to the criminal element. Decriminalisation would make them less reliant on services provided by persons involved in organised crime.

Viz a Vis criminalising clients of sex workers: sex workers rely on their instincts when contemplating accepting a client. If clients are criminalised they become even more nervous and therefore not prepared to spend time talking to the sex worker; she has to get into the car immediately. The discussion, during which sex workers evaluate their clients, has therefore been cut short and the possibility of going with a dangerous client is increased, as is the chance of abuse, rape, and murder.

Criminalising the client also influences the ability to assist victims of trafficking. Women and children that are kidnapped and trafficked are held against their will and are controlled to such an extent that they have little or no contact with the outside world -  their only hope is the client. A client who makes himself vulnerable to prosecution and is labelled a criminal is less likely to report that women or children are being held against their will. Criminalising the client, or the industry as a whole, is therefore not an option if the motive is to assist the women and men in the industry, to protect them from harm or to help them exit the industry.

In New Zealand, the Prostitution Law Review Committee was set up to report on the Prostitution Reform Act 2003, three to five years after the act came into force. A report based on work carried out by the Christchurch School of Medicine and Victoria University’s Crime and Justice Research Centre states that a comparison between the number of sex workers in Christchurch in 1999, before decriminalisation, and 2006 – after the act was passed – showed the total had stayed about the same. A Christchurch School of Medicine survey of sex workers found that more than 90 % felt they had legal rights under the act. More than 60 % felt they were more able to refuse to provide commercial sexual services to a particular client since the enactment of the law. Decriminalisation of sex for sale in New Zealand has fostered “access to safe workplaces, the right to organise at work and the possibility of having good working conditions,” the statement added. The New Zealand experience “has also allowed sex workers, particularly those in the street, to report violent crimes against them without the fear of being arrested or having their clients arrested.

Associate Justice Minister Lianne Dalziel said the report showed the act had had a positive effect on the health and safety of sex workers and had not led to an increase in numbers of sex workers as predicted by critics of the law reform.

So,  according to valuable sources, decriminalising sex work will keep the HIV AIDS figures down, minimise human trafficking, lessen the chances of sex worker rapes and abuse, and not increase the amount of sex workers! What are we waiting for South Africa?