Background

At present, South African law regards the performance of sex work as a criminal offence (sec 20(1)(aA) of the Sexual Offences Act 23 of 1957. Because of the criminalised status of the sex work industry, commercial sex workers are often unable to make use of existing legal mechanisms when they are subjected to violence (for example, in the form of sexual assault) in the course of their work. In addition, sex workers are vulnerable to violations of human rights in the form of police harassment and unlawful arrest and detention.

Sex workers may also find it difficult to access public health services. Our experience has shown that the current status of criminalisation of sex work contributes to the violations of human rights. In addition to making efforts to ensure that the legal and health care systems are more accessible to sex workers, it is essential to re-examine the present criminal status of sex work.

Recently, the courts saw challenges to legal provision relating to sex work in the Sexual Offences Act and stripping in the Liqour Act. The High Court declared these provisions unconstitutional. The Constitutional Court has subsequently ruled that the provisions in the sexual offences act prohibiting sex for reward and brothel keeping are constitutional (Jordan and others v S CCT 31/01). The Constitutional Court judgment on the Liqour Act provision is still pending (Phillips and another v Director of Public Prosecutions and other CCT 2/02).

The South African Law Commission has completed the first step in the review of the Sexual Offences Legislation pertaining to sex work, an issue paper was released in August 2002 and is available at the SALC website (Sexual Offences: Adult prostitution, Issue Paper 19 Project 107). The SALC is inviting submissions on the issue paper which must reach them before the end of December 2002.

Current Research

The Gender Project is in the forefront of progressive legal research in this area. We produced a pamphlet on decriminalisation and legalisation to inform sex workers of the implications of each strategy.

Helene Combrinck of the Gender Project acted as consultant to the South African Law Commission in its drafting of the Issue Paper on Sexual Offences. The Gender Project also did consultancy work on the possibilities for and implications of law reform with regard to adult entertainment at local government level. The Project has also conducted research on the experiences in other jurisdictions where attempts have been made to change the legal status of sex work.