Updated 25 June 2014

Sex work and the law

The decriminalisation of sex work is not only about human rights, but could also be a valuable tool in the fight against HIV, experts say.

While the suggested decriminalisation of sex work for the 2010 Fifa World Cup has grabbed the headlines, the wider issue of decriminalisation seems to have stalled in bureaucratic red-tape. That seems set to change, though: a legal discussion paper expected early in the new year, and a growing recognition of the potential role of decriminalisation in the fight against HIV/Aids, seems set to set the ball rolling again on this most contentious of issues.

The health benefit
While the decriminalisation debate is often reduced to little more than moral positioning, there is an increasing awareness of the difference decriminalisation could make to public health.

Earlier this year the Joint Civil Society Monitoring forum (JCSMF), a group of civil society organisations including the Treatment Action Campaign and the Aids Law Project, threw down the gauntlet for decriminalisation: "Not only is this legally necessary, but it also represents sound public health policy," it said in a statement. "Decriminalisation is the single most important (and simplest) intervention to reduce infection and vulnerability in respect of HIV and other STIs among sex workers and their clients. If government is serious about prevention then it must decriminalise sex work as a matter of urgency."

At a most basic level, decriminalisation would enhance sex workers' ability to protect themselves, and their clients, against HIV.

"Sex workers’ health is compromised by violence, stigma, the intrinsic nature and dangers of their work, economic hardship and the lack of access to services and support," says Marlise Richter, of the Steve Biko Centre for Bioethics at the University of the Witwatersrand. "All of these factors are aggravated and entrenched by a legal system that criminalises the industry."

Richter lists the following arguments against the ongoing criminalisation of sex work:

  • Increasing sex worker vulnerability to violence from clients, partners and police;
  • Creating and sustaining unsafe and oppressive working conditions;
  • Increasing the stigmatization of sex workers;
  • Restricting access to health, social, police, legal and financial services;
  • An adverse impact on safer sex practices; and
  • Impacting on the ability to find other employment.

"All of these factors impact adversely on sex workers’ ability to protect themselves from HIV, prevent HIV transmission to their sexual partners, and to access the necessary HIV-testing, treatment and support," says Richter.

The legal landscape
In 2002, The South African Law Reform Commission (SALRC) proposed the following three possible solutions to the legal questions around sex work:

  • Criminalise all aspects of adult prostitution;
  • Legalise adult prostitution within certain narrowly circumscribed conditions;
  • Decriminalise adult prostitution, which will involve the removal of laws that criminalise prostitution.

"Ongoing criminalisation of sex work in South Africa would maintain the status quo, while decriminalisation of sex work would see all laws that criminalise sex work struck down. Sex work would thus be like any other profession and enjoy the protection of labour and occupational health laws. Legalisation would entail the decriminalisation of sex work within certain areas only (zoning of sex work), but sex workers would (for instance) have to register with authorities and submit themselves to mandatory health checks," Richter explains in a policy brief.

Following the 2002 paper, the SALRC was supposed to produce a discussion paper containing proposed legislation. According to current estimates, this much-delayed paper may finally be published in January 2009.

The paper will then be open for public comment after which the SALRC will submit a final report with recommendations to the Minister of Justice and Constitutional Development.

Lack of numbers
"Due to the criminalisation of sex work, it has been difficult to accurately determine numbers of sex workers in South Africa," writes Lauren Jankelowitz, Programme Manager: Special Services and Community Engagement at the Reproductive Health and HIV Research Unit at Wits.

A recent study conducted in Cape Town found approximately 1 500 sex workers, according to Jankelowitz. "In the 1990’s it was estimated that there were 10 000 sex workers in Johannesburg, but it is unclear where this estimation comes from."

The lack of reliable figures seems to be typical of a wider lack of engagement with the issue of sex work among policy-makers and researchers. Apart from some non-government organisations and research units there is still very little being done – both in terms of research and health interventions tailored to the needs of sex workers.

Yet, with the SALRC discussion paper expected soon, and calls to decriminalise sex work for the 2010 Fifa World Cup, it seems the issue might once again be making headlines.

(Marcus Low, Health24, December 2008)


Sex work, HIV/AIDS and the socio-legal context in South Africa. Policy brief. Prepared by Marlise Richter. Commissioned by the Reproductive Health & HIV Research Unit, University of the Witwatersrand, 15 October 2008.

Concept document compiled for the Reproductive Health and HIV Research Unit at the University of the Witwatersrand


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Dr Sindisiwe van Zyl qualified at the University of Pretoria before working for an HIV/AIDS NPO in Soweto for many years. She was named one of the Mail & Guardian's Top 200 Young South Africans in 2012.

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