Decriminalise sex work to stop HIV, says Human Rights Watch

South African authorities are obstructing efforts to decriminalise sex work and end the HIV pandemic, Human Rights Watch and the Sex Workers Education and Advocacy Taskforce (SWEAT) said in a report

South Africa should decriminalise the exchange of sex for money by consenting adults.

“Sex workers in South Africa face arrest, detention, harassment, and abuse from police, which also deters them from reporting rape or other brutal attacks against them,” said Liesl Gerntholtz, acting deputy executive director for programme at Human Rights Watch.

“All over the world we and other rights groups find the same patterns of abuse where sex work is criminalised.”

The 70-page report, “Why Sex Work Should be Decriminalised in South Africa,” documents violence experienced by sex workers in South Africa, and their difficulties in reporting crimes and creating safe places to work. Sex workers also reported being sexually exploited by police and forced to pay bribes to officers.

“The South African government has missed opportunities in the past to change the law,” said Nosipho Vidima, human rights officer at SWEAT. “Sex workers need the Department of Justice to take action now to decriminalise.”

Researchers interviewed 46 women who are sex workers. All but three were single mothers, many of whom supported three or more people with their work. While sex workers with other gender identities also experience violence, most sex workers in South Africa are women. Human Rights Watch also interviewed more than 35 government officials and non-governmental experts in health, law, and sex workers’ rights.

Sex workers described facing frequent arbitrary arrests and police profiling. They said that to avoid police harassment they were compelled to work in dangerous areas like dark parks, bushy areas behind bars, or back roads in towns where they felt unsafe. Sex workers also said that they often did not report crimes against them because they feared arrest or harassment. Some chose not to report out of fear that the police would laugh at them, blame them, or take no action.

“I’ve been arrested three times this year…Once I was in jail for two days; other times I paid fines or bribes,” said Rofhiwa Mlilo (a pseudonym), a sex worker from Makhado town in Limpopo province.

“You can’t report to the police. Even with armed robbery the problem still stands – they will not take you seriously. They say you’re trying to sell to that person.”

Many of the interviewees had been raped by men purporting to be clients, and almost all had been victims of robbery or serious violence, including being beaten, whipped, and stabbed. Zandile Makuyaa, a Makhado-based sex worker and mother of two young children, said that she was raped in 2017 and still has scars on her arms and chest from where the attacker beat her with an electric cable.

“If I were not a sex worker, I would have reported [the crime to the police],” she said.

Sex workers also said they faced widespread stigma and sometimes harassment by other residents of their towns.

The report highlights deep inconsistencies between different government bodies in their approaches to sex work and services for sex workers. The most notable difference was between the national department of health, which makes efforts to support sex workers with access to health care, and the criminal justice system, which takes a punitive approach.

South Africa has the largest HIV epidemic in the world – 19% of the global number of people living with HIV reside in the country. It also has the world’s biggest treatment program, 80% of which is funded by the government. The disproportionate impact of the HIV epidemic on sex workers and their clients, partners, and children led the country’s department of health, together with partners in both the government and civil society, to create a National Strategic Plan on HIV for Sex Workers. In accordance with guidance from the World Health Organization and the Joint United Nations Programme on HIV/AIDS, South Africa’s health officials have called for the decriminalisation of sex work since at least 2007.

Health workers and health rights activists interviewed said that criminalisation obstructs efforts to prevent and treat HIV infections among sex workers. Outreach workers from clinics providing services to sex workers have been arrested and police have relied on sex workers’ possession of condoms as evidence of prostitution, discouraging them from carrying them. Some sex workers also reported that arrest and detention interrupted their essential HIV treatment.

“South Africa’s laws on sex work undermine the government’s own efforts to reduce high rates of violence against women and reduce rates of HIV infection in sex worker populations,” Gerntholtz said.

The Department of Justice and Constitutional Development should introduce a new law to parliament that removes criminal and administrative sanctions against voluntary, consensual adult sex work, and supports sex workers’ constitutional rights including the right to work under the protection of labour laws.

The South African authorities should also reform or repeal overly broad laws and bylaws prohibiting loitering and related offences used to criminalise and harass sex workers. The South African Police Service should investigate abuses by its officers against sex workers, including sexual exploitation, extortion, and harassment, and place a moratorium on arrests until a new law is passed.

Those who engage in sex work are entitled to the same rights and freedoms as everyone else. Under criminalisation, these fundamental rights are routinely violated, and sex workers are denied the equal protection of the law.

Criminalisation of the sale or purchase of sex by consenting adults creates conditions in which violence and other abuse is tolerated, Human Rights Watch and SWEAT said. Decriminalisation creates safer working conditions for sex workers and maximizes their protection and dignity.

“South African sex workers deserve to live in dignity and provide for their families without fear and shame,” Vidima said.

“Decriminalising sex work is the clear way forward.”