CASE-SA MEDIA STATEMENT: Anti-Sexual Exploitation Advocates emphasise need for laws that effectively defend prostituted persons’ fundamental rights
MEDIA STATEMENT BY THE CENTRE AGAINST SEXUAL EXPLOITATION, SOUTH AFRICA
DATE: 21 SEPTEMBER 2022
* FOR IMMEDIATE RELEASE *
SUBJECT: ANTI-SEXUAL EXPLOITATION ADVOCATES EMPHASISE NEED FOR LAWS THAT EFFECTIVELY DEFEND PROSTITUTED PERSONS’ FUNDAMENTAL RIGHTS
The 2022 Coalition to End Sexual Exploitation (CESE) Africa Summit is being held from 20 to 22 September 2022, in Pretoria, South Africa. An influential and diverse cohort of local and international experts are converging in the nation’s executive capital to share their knowledge and experiences on addressing sexual exploitation and abuse on the African continent.
Critical discussion on the legal status of prostitution
On Tuesday, 20 September, the Centre Against Sexual Exploitation, South Africa (CASE-SA) participated in an insightful afternoon session dedicated to ventilating important issues around prostitution. [See 2022 CESE Africa Summit from 03:46:40].
The discussion held at a critical time: the Department of Justice and Constitutional Development has embarked on reviewing South African prostitution law. According to CASE-SA, as a compassionate society based on human rights and freedoms, South Africans need to be aware of which legal response will best protect and promote the fundamental rights of prostituted persons.
The human rights and public policy case for reforming prostitution laws in Africa
Ms Stefanie Kotze guided delegates through the human rights and public policy rationale which underlies the legal regime currently regulating prostitution in South Africa, explaining under which circumstances prostitution law reform will be necessary and justified. [See 2022 CESE Africa Summit at 04:51:40 to 05:10:55]. This will only be if criminalising the system of prostitution is unconstitutional and or when very strong policy reasons demand a legal regime change.
Turning to the Constitutional Court’s landmark 2002 judgment in State versus Jordan, Ms Kotze explained why South Africa’s highest court found that fully criminalising prostitution (i.e. both the supply and demand side) is indeed constitutional and does not infringe human rights. According to the Constitutional Court, the “Constitution values human dignity which inheres in various aspects of what it means to be a human being. One of these aspects is the fundamental dignity of the human body which is not simply organic. Neither is it something to be commodified”, yet the “very nature of prostitution is the commodification of one’s body.” It turns out that it is prostitution itself which is the real human rights infringement.
From a public policy perspective, prostitution should only be fully decriminalised if the harms of prostitution flow from the legal status of prostitution (i.e. from the legal fact of it being criminalised) instead of the nature or practice of prostitution itself (and its underlying causes). In addition, full decriminalisation will only be defensible if it would result in achieving the policy objectives of reducing or negating the harms of prostitution, including improving the quality of life of prostituted persons. In this regard, Ms Kotze referred to the existence of very strong evidence confirming that the harms of prostitution are inherent in prostitution itself.
This means that the harms of prostitution originate from and exist where and whenever prostitution is practiced – irrespective of the legal regime governing prostitution. This is the conclusion reached by the South African Law Reform Commission (SALRC) in its authoritative 2017 Report on Adult Prostitution. Following a thorough thirteen year investigation, the SALRC found that prostitution is inherently exploitative in nature and characterised by dominance and violence. According to the SALRC, prostitution is not work in any conventional sense of the word and not a reasonable means of securing a living in South Africa, but rather a survival strategy.
The presentation emphasised that the socio-economic origins of prostitution cannot be ignored. To effectively reduce its physiological and psychological harms, the known causes of prostitution – developmental challenges such as inequality and poverty – must be addressed. The solution is not fully decriminalising prostitution, but rather pro-active socio-economic interventions and effective law enforcement.
The legal status of prostitution and its implications for pornography, prostitution and sex trafficking
Ms Liesl Pretorius examined the close similarities and symbiotic relationship between prostitution, pornography and sex trafficking, from a legal perspective. [See 2022 CESE Africa Summit at 03:52:00 to 04:13:35]. All three are forms of sexual exploitation that commodify human bodies and sexuality by abusing the vulnerabilities – including socio-economic marginalisation, youth, drug dependence, and disability – of those being exploited and violating their fundamental right to human dignity.
The presentation shared internationally recognised experts’ thought provoking insights. For example, the UN Special Rapporteur on the Human Rights Aspects of the Victims of Trafficking in Persons, Especially Women and Children has pointed out that in reality, for the most part prostitution as actually practiced, satisfy the elements of sex trafficking. Similarly, Dr Gail Dines and Dr Melissa Farley, who have extensively studied the phenomenon of prostitution, have both concluded that most pornography is essentially filmed prostitution. Dr Max Waltman has emphasised that sex trafficking cannot be addressed effectively without reducing prostitution and the demand for it.
Ms Pretorius cautioned that lending legitimacy to any part of an exploitative industry by legalising it – for example, by fully decriminalising prostitution – will only further entrench all three forms of sexual exploitation, exacerbating existing high levels of physical violence, psychological trauma and human rights violations. In the end, pornography, prostitution, and sex trafficking cannot be abolished separately or independently: it must and can only be abolished together.
CASE-SA is adamant that the full decriminalisation of prostitution is simply not an option. Viable solutions will focus on effectively reducing demand for commercial sex, abolishing the sexual exploitation industry in its entirety, and addressing the socio-economic deprivation and marginalisation that drive and entrap persons into the system of prostitution in the first place.
CASE-SA is committed to the creation of a world free from pornography and all other forms sexual exploitation – where the human dignity of each person is protected and promoted.
The Summit can be viewed on the University of South Africa’s YouTube channel:
See also the Collective Against Sexual Exploitation, South Africa’s prostitution law reform webpage for more information and resources.
[MEDIA STATEMENT ENDS]
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[OTHER CASE-SA MEDIA STATEMENTS]
- South Africa Hosts Historic Summit on Ending Sexual Exploitation on African Continent [20 September 2022]