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Gender, HIV and AIDS seminar Socio-economic Rights Project Community Law Centre, UWC 1 July 2009 Marlise Richter Wits University

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Presentation on theme: "Gender, HIV and AIDS seminar Socio-economic Rights Project Community Law Centre, UWC 1 July 2009 Marlise Richter Wits University"— Presentation transcript:

1 Gender, HIV and AIDS seminar Socio-economic Rights Project Community Law Centre, UWC 1 July 2009 Marlise Richter Wits University Pimp my Ride for 2010 Sex Work, Legal Reform and South Africa’s AIDS epidemic

2 Structure 1. Title 2. Definitions 3. Simple facts 4. Background 5. Connection between HIV/AIDS and sex work 6. Legal reform – a history 7. AIDS sector responses 8. The Way Forward 9. Conclusion 10. Recommendations

3 Definition of Pimp 17 th Century 1.) A pimp finds and manages clients for prostitutes and engages them in prostitution (in brothels in most cases and some cases street prostitution) in order to profit from their earnings 21 st Century 2.) In the first years of the 21st century, a new meaning of the word has emerged in the form of a transitive verb which means "to decorate" or "to gussy."

4 How would you define “Sex for reward” ?

5 Definitions The term “Sex Work” is preferred to “prostitution” UNAIDS definition: “Female, male and transgender adults and young people who receive money or goods in exchange for sexual services, either regularly or occasionally, and who may or may not consciously define those activities as income-generating “ The SALRC definitions: The conventional understanding of prostitution usually encompasses ‘the exchange of sexual acts for money or goods’. ‘Prostitution’ means indiscriminately having sex with another person(s) for reward Would survival sex, transactional sex and ‘Sugar Daddy’ relationships fall under this definition?

6 Sex Workers’ own definitions RHRU’s research: “Sex workers clearly identify what they are doing as work, or ‘doing business’, and distinguish this from their non-working lives as women who are girlfriends, mothers and providers. This is evident from the constant comment by sex workers that they perform a service, a job for men. They define their service as penetrative, vaginal sex with a condom, resulting in ejaculation in exchange for cash (usually R20). There is also an expectation that the sexual exchange will take place within a particular timeframe, up to 15 minutes. “

7 Sex work in South Africa Sex work has almost received no attention in South Africa. Often regarded as a social ill and a symbol of a society’s “moral degeneration”, sex workers are expediently ignored in public consciousness or alternatively focused on as: “vendors of vice” “a core reservoir of STDs and HIV” “vectors” or “source” of disease”; “a potential hazard to society” “bitches, chippies, floozies, gentoos, Harlots, hookers, molls, sluts, strumpets, tarts, trams, trollops, wenches, whores” makosha isikhebereshe, umahosha and isifebe.

8 Simple fact No criminal sanction, religious prohibition or moral condemnation will eradicate sex work

9 Simple facts Sex work is not “the oldest profession” for nothing Examples of sex work clamp down: AD 590 (ca.): Reccared Bans Prostitution Visigoth King of Spain, banned prostitution as part of an effort to bring his country into alignment with Christian ideology. There was no punishment for men who hired or exploited prostitutes, but women found guilty of selling sexual favours were whipped 300 times and exiled, which in many cases would have been tantamount to a death sentence. 1586: Pope Sixtus V Mandates Death Penalty for Prostitution Penalties for prostitution--ranging from maiming to execution--were technically in place in many European states, but generally went unenforced. The newly-elected Pope Sixtus V grew frustrated and decided on a more direct approach, ordering that all women who participate in prostitution should be put to death. 1864+ in Britain: If found suffering from gonorrhea or syphilis, a prostitute could be interned in a certified lock hospital (a hospital containing venereal wards) for a period not exceeding nine months. Any woman could be identified on the word of a police official as a ‘common prostitute’, and therefore any woman (especially a working class woman) on her own in a certain area at a certain time could be detained and forced to submit to the internal examinations.

10 In a context where women Are poorer than men Have less access to education Have less access to formal employment Are increasingly heading more households than men Are responsible for the care of children, the elderly and the ill And where there will always be a demand for sex, Sex work is inevitable Simple facts

11 Violence: Sex workers often report police harassment and brutality to researchers Their complaints include police assaults, getting sprayed with tear gas, rape, extortion, and demands for sex or money as bribes. Working conditions: A study in 2001 on sex workers in Hillbrow reported the high level of sexual coercion, and the high level of concurrent sexual partners. On average, the respondents had had sex with 10 clients in the past seven days. Most sex workers interviewed in the year 2000 in Hillbrow said that they would leave sex work ‘immediately’ if they were given the option. Summary of the research

12 Rape: Almost one-third of sex workers in the RHRU study reported they had had sex against their will in the last six months. In a recent study in Cape Town, 12% of streetbased sex workers had been raped by a police man. Barriers to Safer sex: A range of barriers to using condoms is often reported. Sex workers in Hillbrow noted that it is difficult to persuade clients to use condoms and that they feared a violent reaction if they insist on condom use. Summary of the research

13 Barriers to Safe sex (contin.) Some clients demand paying half-price when condoms are used, while the intense competition for clients weakens individual workers’ bargaining power as the client could threaten to make use of the services of another available sex worker who does not insist on condom use.11 Summary of the research

14 Stigma & health care: Judgmental health care worker attitudes prevent sex workers from seeking health care services. In the RHRU study, just under a quarter of the respondents reported having one or more STI symptoms. Summary of the research

15 Catherine Campbell – Carltonville Mine study (1998) Four general themes of why sex workers took up sex work at the mine: 1. The death of a parent or both parents; 2. Leaving school after becoming pregnant; 3. Running away from the hardships of home; and 4. Leaving an abusive man Sex workers in this study – as in many other places in South Africa - live in poverty and sex work becomes one of the few options open to them to survive. Summary of the research

16 Given this, and in the context of a raging AIDS epidemic in Southern Africa, what would be a progressive Human Rights and Public Health response to sex work?

17 Sex work and HIV/AIDS Sex workers as a group have been at high risk of contracting HIV and STIs since the advent of HIV/AIDS Factors that impact on vulnerability: criminalisation of sex work; concurrent sexual relations; the difficulties in negotiating safer sex; on-going exposure to high levels of violence; stigma; and and the barriers to accessing health care services.

18 HIV Prevalence amongst sex workers Zambia: Ndola: 69% Namibia: Katutura: 70% South Africa Hillbrow: 45% (in 1998) Carltonville: 69% (in 1998). sex workers had a HIV prevalence rate that was more than 3x higher than the prevalence rate of that segment of the general population. KZN Midlands: 50.3% (in 1997)

19 What effect does criminalisation of sex work have on sex workers? Increases stigma of profession Limits access to health care, legal and social services Access safer sex education? Access to condoms? Access to STI/HIV testing and treatment? Mobilisation? Increase exploitation and abuse of sex workers by clients, partners, brothel-owners, pimps and the police Barriers to legal recourse Sex workers often have no choice but to live in dangerous, squalid conditions – these conditions attract social and criminal ills May force sex workers to relocate often – social disintegration Increase the risk of contracting HIV

20 What is the legal position at present? Sex work in SA is illegal Section 20(1)(aA) of the Sexual Offences Act of 1957 Before 1988 = sex work was not illegal “soliciting, brothel-keeping and procuring” were regarded as offences under the Sexual Offences Act Sexual Offences Act is amended to include sex workers Section 11 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act of 2007 – can prosecute the client Not many sex workers are charged under the Act - Obvious difficulties with providing sufficient evidence that someone has engaged in a sexual act for “reward” Authorities persecute sex workers through a plethora of municipal by-laws that relate to “public nuisance” or “indecent behaviour”

21 Legal Sector Responses Constitutionality of the Sexual Offences Act challenged – Jordan v State (2002) Main argument: Distinction between sex workers and their clients = gender discrimination SOA infringed on sex workers’ rights to dignity, privacy and economic activity Majority decision (6): SOA does not constitute indirect discrimination on the basis of gender Minority decision (5): Indirect discrimination on the basis of gender SOA does not infringe on sex workers’ rights to dignity and privacy

22 Legal Sector Responses “In this respect, we have to bear in mind that the whole question of how to deal with prostitution in our society is a complex one that defies simplistic solutions. Accordingly, we feel that justice and equity would best be served by giving Parliament a fair opportunity to undertake a comprehensive review of the matter, producing a balanced and well thought-through approach to the manner in which commercial sex can and should best be regulated in contemporary South Africa, bearing in mind the principles of equality that run through our Constitution.” - Jordan vs State (per O’Regan J & Sachs J at para 126) South African Law Reform Commission (SALRC)

23 Law Reform Processes 1997: Investigation into adult prostitution had as its starting point the investigation originally entitled ‘Sexual Offences By and Against Children’. SALRC expands the scope of the investigation to include sexual crimes against adults and the investigation was renamed ‘Sexual Offences’. Sept 1999: 1 st Discussion = substantive law relating to sexual offences and contained a draft Sexual Offences Bill. Dec 2001: 2 nd Discussion = process and procedures 3 rd document = Adult Prostitution 4 th Document = Pornography 2002 = Adult Prostitution Issue Paper released 2002 = Jordan vs State (CC) judgment given 2009?! = Discussion Paper Input from public SALRC prepares report & submits to Minister of Justice and Constitutional Development “It remains the prerogative of the Minister to implement the Commission’s recommendations.”

24 What is in the SALRC Discussion Paper? The Commission (May 2009) gives 4 options on law and sex work: 1. Totally criminalise all aspects of sex work as criminal offences; 2. Partially criminalise aspects of sex work as criminal offences; 3. Legalise sex work within certain narrowly regulated conditions; 4. Non-criminalise (or decriminalise) sex work which will involve the removal of laws that criminalise sex work

25 What do these four options mean? 1.) Totally criminalise all aspects of sex work as criminal offences Keeps things as they are Sex work continues to be illegal Make the currents laws on sex work simpler Example: South Africa

26 What do these four options mean? 2.) Partially criminalise aspects of sex work as criminal offences; Selling sex is not illegal but buying sex is Examples: Sweden and the United Kingdom - Sex worker = legal Client, pimp or brothel owner = illegal Germany - Sex worker, client and brothel ownership = legal; pimping = illegal

27 What do these four options mean? 3.) Legalise (also called regulation) adult prostitution within certain narrowly regulated conditions; Sex work is only legal within specific areas The state regulates sex work In other countries, this has meant that: Some sex workers had to carry cards to show that they are sex workers Sex workers have to go for compulsory health checks Registration of sex workers with the authorities Designation of specific areas – ‘red light districts’ Example: Amsterdam

28 What do these four options mean? 4.) Non-criminalise (or decriminalise) adult prostitution which will involve the removal of laws that criminalise prostitution Protect the rights of sex workers Sex workers regulate the industry themselves Sex workers working on their own become “independent contractors” If sex workers work for someone else such as in a brothel, South Africa’s labour laws will apply Amnesty to sex workers who have a criminal record for prostitution who wish to exit the industry Example: New Zealand

29 AIDS Sector Responses South Africa Hillbrow: 45% (in 1998) Carltonville: 69% (in 1998). sex workers had a HIV prevalence rate that was more than 3x higher than the prevalence rate of that segment of the general population. KZN Midlands: 50.3% (in 1997)

30 10 abstracts out of 285 (3.5%) 7 abstracts out of 400 (1.75%) 2 abstracts out of 702 (0.2%) 3 abstracts out of 552 (0.5%) SA AIDS Conference Abstracts Analysis of abstracts according to “sex work” word search

31 National Strategic Plan The South Africa’s National Strategic Plan 2007- 2011 explicitly rejects discrimination against sex workers, acknowledges the increased vulnerability of sex workers to HIV; and recommends the rolling out of customised prevention packages for sex workers. Significantly, the NSP recommends that sex work in South Africa is decriminalised Yet, little progress has been made on any of these targets or recommendations.

32 SANAC SANAC = South African National AIDS Council New engagement with sex work in 2008 – Women’s Sector and Human Rights & Legal sector Wrote to the Minister of Justice and Constitutional Development urging the release of the SALRC Discussion Paper Powerful resolutions taken by the Programme Implementation Committee (PIC)

33 What would a progressive Human Rights and Public Health response to sex work be?

34 Implement the NSP & decriminalise sex work

35 Thandi’s submission “One day, 20 September 2002, I met a man in the hotel in which I am staying. We agreed that the man will pay me R150.00. He agreed but then he refused to use a condom, was very rude and brutal, and he forced himself on me after he told me that he was HIV+. I was too afraid to go and test, the situation was too painful. I started to hate myself and men. Finally I went to the clinic and there they mocked me. I also went to the police station and it was worse: they made a joke about my rape. I felt useless and dirty. From:

36 Thandi’s submission Now I want the government to treat sex workers as people who are doing a job. And I want the police to take us seriously if we are opening up a case of rape. That is their job. Government must also create jobs for ex-sex workers or people who would like to stop being sex workers. Many of us want to change our lives but we can’t because we have no alternative job to provide income for our children and families. For instance, in my case I went to the clinic for the HIV test and it came out negative. I decided to change my work but could not because of my family back home who depend on the money I send back. They need about R1000 each month and if I don’t send it back they will suffer. Government must do something about this problem because we are trapped.” From:

37 Recommendations 1. Utilize the window of opportunity offered by the FIFA World Cup 2. Mobilise civil society to engage with the SALRC processes & encourage organisations to attend public hearings 3. Write or support submissions to the SALRC on the decriminalisation of sex work 4. Monitor the implementation of the NSP 5. Keep pressure on SANAC to implement sex work provisions of the NSP and the PIC decisions taken in March 2009 6. Raise awareness of sex work as a gender, human rights & HIV/AIDS issue

38 Selected Sources M. Richter “Sex work, reform initiatives and HIV/AIDS in inner-city Johannesburg” African Journal of AIDS Research 2008, 7(3): 323–333 Chandre Gould & Nicole Fick “Selling Sex in Cape Town” Institute of Security Studies, 2008 E. Bonthuys “Women’s sexuality in the South African Constitutional Court” Feminist Legal Studies (2006) 14391-406 Rees, H., Beksinska, M. E., Dickson-Tetteh, K., Ballard, R. C. & Htun, Y. E. (2000) Commercial sex workers in Johannesburg: risk behaviour and HIV status. South African Journal of Science, 96, pp. 283-284. South African Law Reform Commission (2002) Issue Paper on Sexual Offences: Adult Prostitution. Pretoria, South African Law Reform Commission. SWEAT, CALS & RHRU (2002) Amicus curiae submission in the case Jordan v State. Johannesburg. Trotter, H. (2008) Sugar Girls & Seamen - a journey into the world of dockside prostitution in South Africa, Auckland Park, South Africa, Jacana Media (Pty) Ltd. Wojcicki, J. M. (2002a) Commercial sex work or ukuphanda? Sex-for-money exchange in Soweto and Hammanskraal area, South Africa. Culture Medicine and Psychiatry, 26, pp. 339-70. Wojcicki, J. M. (2002b) "She drank his money": survival sex and the problem of violence in taverns in Gauteng province, South Africa. Medical Anthropology Quarterly, 16, pp. 267-93. Wojcicki, J. M. (2003) The Movement to Decriminalize Sex Work in Gauteng Province, South Africa, 1994-2002 African Studies Review, 46, pp. 83-109. SWEAT “Why you should support decriminalisation even if you are against sex work” Available: Pathfinder International Technical Guidance Series Number 6 “HIV Prevention Among Vulnerable Populations: The Pathfinder International Approach”. Avail:

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