Why Ramaphosa (and most of us) are wrong about ‘decriminalising’ sex work

Words matter, particularly when you're trying to legislate an industry that's been around since the dawn of time and is not about to go away.

File image: iStock

Among the few breaths of fresh air President Cyril Ramaphosa allowed us to inhale while his brief gust of optimism swept in following a noxious political decade was his support for “legalising” or “decriminalising” sex work.

It’s unknown, though, if the Ramaphosa presidency will ever get around to prioritising this issue when there are so many other things to worry about.

But it deserves more than a few passing words of support, and will always be an issue until we sort out the inherent injustice that lies at the heart of our laws around sex.

As I was telling a colleague earlier today, when the democratic government took over in 1994 and was confronted by a mountain of unjust apartheid laws, no one went around “debating” whether to scrap the Group Areas Act or the Immorality Act, which criminalised sex and marriage between people of different races. It was taken as self-evident that these laws were against human rights, were discriminatory and, well, completely stupid.

They were simply abolished in the 90s and dumped in the trash bin of history.

All that remains of the 1957 Immorality Act – and this may surprise you to hear – are the sections related to prostitution. The Immorality Act most of us think of as a blight on the history of this country is still, partly, with us – and whatever is left of it also desperately needs to go.

Before I continue, let’s pause for a moment of honesty.

A lot of sex in this world is transactional. When the fifty-something CEO of a bank rocks up at his company golf day with his twenty-something trophy wife in his convertible SLK, most of us know his R100 million in the bank is not an insignificant reason for why she is on his arm.

I don’t think she’s a ‘prostitute’. I think she has something he wants, and he’s willing to pay for it, and that is what she wants.

Maybe that’s love. Sure. Sure it is.

But even if it isn’t, and she’s only sleeping with him for his money, I don’t think their arrangement should be considered criminal, though his ex-wife might not agree.

I certainly don’t think either of them should go to prison if they’re not able to prove they’re together for “love” alone.

When the sexual encounter is more short term, and the exchange of money is far more candid, should we then feel something illegal is going on?

Why? Surely it’s none of anyone’s business.

I’ve always been bemused about the fact that most countries that outlaw “prostitution” are perfectly okay with the filming or photographing of actual sex acts. For some reason, if people are having sex in exchange for money, it’s perfectly legal as long as you can film them doing it and then sell the resultant footage to other people to watch.

Pornography is the most blatant form of sex work imaginable (it’s actually marketed and promoted on the basis of its explicitness), since the police don’t even need to do any investigation of whether any sex work took place. It obviously did. They just need to buy your DVD from the local Adult World or go to your porn site to find all the evidence imaginable of what you got up to, and it’s all provided by the “perpetrators” themselves.

But no. Pornography is not illegal. It’s just business. It’s even protected as freedom of speech.

The primary point is that we appear to be deceived here by language and an unquestioning acceptance of the status quo.

Ramaphosa seems to have grasped many of the main points from those lobbying for the laws to be changed. These include that sex workers are far more easily exploited when what they do is considered criminal, particularly the abundant evidence that sex workers are often raped by policemen. Sex workers have little recourse when they happen to get raped by anyone at all.

I found it extraordinary when doing research on this to read how the Constitutional Court dealt with this subject when it shut the door on extending various rights to sex workers in 2002. The court in its judgment referred to the words ‘prostitute’ and ‘prostitution’ no fewer than 233 times, while ‘sex work’ or ‘sex worker’ were only, begrudgingly, referenced 30 times, and then merely often in the same breath as the more favoured term, or when talking about the Sex Worker Education and Advocacy Taskforce (Sweat) NGO.

It’s clear that, 17 years ago, the highest court in our country was completely sold on the idea that sex work (or prostitution, as it insisted on calling it) must be considered criminal behaviour. It accepted that as a given and based the rest of its findings on an assumption the judges appeared to feel was self-evident.

No one even seemed to give much thought to the idea that this view could be against the spirit of human rights and concepts of individual liberty. At its heart, it was endorsing the mostly sexist and patriarchal view of human sexuality that has dominated since Eve supposedly talked a man into chowing an apple or the misguided Pandora opened her little box of secrets.

Female sexuality must always be policed.

Of course we know that, in theory, it’s equally illegal for men to offer sex in exchange for money, but if we’re being properly honest, then it’s almost exclusively about women and what we allow them to do with their bodies.

When I was telling a colleague about this column, she told me there was nothing I could say to her to make her change her mind about sex work being wrong.

She told me sex work is demeaning, dangerous, dirty, unhealthy, embarrassing and the last thing any woman would choose to do if she had any other choices.

Okay, sure. Even if we accept all of that is true, and not everyone does, does it automatically mean it should be illegal?

I asked her if what she was arguing was that any job that someone is doing because they have no other option should be criminalised? If a job is dangerous, should it criminalised?

Should being a miner be illegal? Or a motorcycle racer? Does it mean that people who fix sewers should be told their job is illegal because it’s dirty and exposes them to pathogens? Should plumbing be outlawed?

There are days in any job when you question if you can face another day of it. That’s why it’s called work. Few of us love our jobs, and even fewer love working all the time, but it’s a way to put food on the table, and we do what we have to do.

If women are turning to sex work because they have no other choice, surely they require our sympathy and, at the very least, the protection of a humane set of laws and a progressive justice system.

If we could give everyone a great, dream job, then let’s go ahead and do that.

But in the absence of heaven suddenly descending on earth unexpectedly, we’ll need to legislate for the world we actually exist in.

We should also, obviously, recognise that many practitioners willingly choose to be sex workers over any other profession, and they make a lot more money than most of us ever could. Power to them.

The Constitutional Court pointed out in 2002 that there are a lot of ills associated with sex work: drugs, human trafficking, abuse, gangsterism, and so on. It’s still not rational to blame all of that on the sex work itself.

If consenting adults agree to have sex, that is their business. The law should have very little involvement in it, even if it involves money.

We should legislate the things that are clearly criminal, including the exploitation of children and human trafficking. It would be easier to focus on the things that are clearly illegal if you make a decision to exclude any interest from law enforcement in things that clearly are not illegal.

So, Mr President, let’s stop talking about decriminalising or legalising sex work, and start talking about bringing these archaic laws in line with our constitution and the rights of women to expect legal protection even if they happen to sell their bodies for whatever reason.

It would be most refreshing to, in future, hear about how our laws around sex are merely going to be updated, and to again pose the challenge to the Constitutional Court to, finally, do the right thing and, as we did with our laws around same-sex marriage in 2005, set the legal bar for the world to follow.