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4.1 There is a vast body of literature dealing with various aspects of prostitution.[133] Due to the specific purpose and scope of this Issue Paper, it is not possible to do justice to this existing corpus of work. However, in this Chapter an attempt is made to provide at least an overview of the main debates.
4.2 Arriving at the meaning of the terms ‘prostitution’ and ‘prostitute’ is not an easy task, especially in an African context. Scholars who have studied irregular sexual unions in non-Western cultures (including African societies) have confronted difficulties in identifying or limiting the boundaries of prostitution.[134] The conventional understanding of prostitution usually encompasses ‘the exchange of sexual acts for money or goods’. However, Skramstad notes that in an African context, exchange of sexual services for money is only one of many actions that may lead to a label as prostitute. Conversely, exchange of sexual services for money is not always considered as acts of prostitution.[135]
4.3 Dirasse, in her evaluation of different definitions of prostitution, proposes the approach of ‘viewing all mating patterns on a continuum that ranges from more permanent and legally sanctioned unions to casual sexual encounters with varying degrees of remuneration for sexual activity’.[136] She notes that different societies place the boundaries of legitimacy and decency at different points on this continuum: for example, in Ethiopia many different ‘mating patterns’ are found, ranging from more permanent and legally sanctioned unions to casual sexual encounters.[137] She makes the point that prostitution as found in Ethiopia differs considerably from institutions known by the same name in Europe or the United States, in the sense that Ethiopian prostitution is characterised by relatively low stigma and absence of syndicate control. In addition, there is usually a mutual emotional attachment between the prostitute and her regular clients, and these clients get additional limited domestic privileges, such as meals.[138]
4.4 The difficulties of narrowing down the concept of ‘prostitution’ are further compounded by the fact that persons who exchange sexual acts for rewards other than money (e.g. for clothes, food or lodging) may not identify themselves as prostitutes, due to the fact that the transaction does not entail the actual receipt of money. Leggett notes that less traditional forms of prostitution are practised in rural and township areas.[139]
4.5 It is therefore useful to bear in mind that current legal definitions of prostitution may be at variance with more culture-specific understandings of this notion in the African context.
4.6 An early legal definition is found in R v Kam Cham,[140] where ‘prostitutes’ were defined as persons who engage indiscriminately in sexual relations for pecuniary reward.[141] Milton and Cowling accordingly propose the following definition of a ‘prostitute’ for legal purposes:[142]
‘A person will be regarded as a prostitute if she engages in (i) sexual relations (ii) indiscriminately (iii) for pecuniary gain.’
4.7 This definition is unsatisfactory for two reasons. Firstly, the word ‘indiscriminately’ has a connotation of random, undistinguishing conduct that may be at odds with how prostitutes select and negotiate with their clients,[143] and secondly, it assumes that the prostitute will be a woman (‘she’). Although the majority of the world’s prostitutes are women, men and transgendered persons are becoming increasingly visible in prostitution.[144]
4.8 A further factor to be taken into consideration when developing a definition of adult prostitution is the fact that sexual services are occasionally rendered for rewards other than financial (monetary) reward, such as food, clothes and accommodation. Certain authors contend that the definition of prostitution should be limited to those persons who provide sexual services for financial reward, firstly because the inclusion of all rewards would cast the ambit of ‘prostitution’ too broadly, and secondly because many of the persons providing sexual services in return for, for example, food or accommodation do not readily identify themselves as prostitutes.[145]
4.9 During the 1970’s and the 1980’s, conflicting perspectives of prostitution emerged when the nascent prostitutes’ rights organisations developed a view of prostitution that distinguished between forced and voluntary prostitution in response to feminists (and others) who saw all prostitution as abusive.[146] At the risk of over-simplification, these conflicting perspectives can be divided into those interpreting prostitution as work, and those interpreting prostitution as exploitation.[147] It is especially among feminist authors that divergent views on prostitution have resulted in an apparently non-navigable rift.[148]
4.10 In addition to the moral objections, one of the principle factors that will determine the question of how the law should address adult prostitution is the issue of whether prostitution is viewed predominantly as work or as exploitation. These two perspectives are accordingly explored in more detail here.
4.11 Proponents of the prostitution-as-work perspective hold that women have a right to choose to engage in prostitution, as in any other form of work, and they should therefore have the same rights as other workers.[149] This movement aims to construct (voluntary) prostitution as a legitimate occupation, and argues that where some adult prostitutes make a relatively free decision to go into prostitution, they should be at liberty to do so.[150]
4.12 A fundamental premise underlying this view is that not all prostitution is forced or coerced. There is, however, a recognition that there is a difference between those who choose prostitution as ‘an expression of sexual liberation’,[151] those who choose it due to economic pressures and those exposed to overt pressure or coercion from third parties in the form of deception, violence and / or dept bondage. While proponents of this view agree that in some instances exploitation of prostitutes may occur, they contend that as a general principle women freely choose prostitution as a form of work.[152]
4.13 One feminist view resorting under this perspective, viz. contractarian feminism, sees prostitution as the contracting out of sexual services for a particular time period in exchange for money, the sale of sexual services being no different to that of workers who supply other services or labour in the marketplace.[153]
‘The contractarian concludes that we will begin to recognise that a person’s right to sell his or her sexual services is neither more nor less of a right than that involved in selling his or her labour-power in any of its multifaceted forms.’[154]
4.14 The liberal feminist position resembles that of the contractarians. The core liberal argument focuses on individual rights (including, for example, the rights to privacy, autonomy and sexual self-expression)[155] and the value of equality before the law.[156] The organisation COYOTE, an example of a liberal feminist group, had from its inception the concern to challenge the image of prostitutes as ‘fallen women’, ‘social deviants’ and ‘victims’.[157] Rather, they choose to depict prostitutes as choosing legitimate work, stating that prostitution is first and foremost a work issue and thus the master concept of work should replace the master concept of crime as the fundamental stance of society towards prostitution. Moreover, it is service work that should be respected and protected like work in other legitimate service occupations. The organisation also holds that most women who work as prostitutes choose do so, even in a society where prostitution is illegal. Finally, prostitution is work that people should have the right to choose.[158]
4.15 Supporters of the view that the majority of adult prostitutes choose to enter prostitution recognise that this may be a choice exercised within a limited range of options. Bindman provides an explanation of this ‘choice within limits’:
‘The street worker who accepts a client she would prefer to reject, for fear of being unable to meet daily expenses, or the worker in hired premises who must earn a minimum amount to pay the proprietor for the day’s hire for the premises, is facing not slavery but simple economic and social injustice, of the kind which constrains workers in every field to accept inequitable or dangerous conditions. The solution to this injustice lies beyond the scope of law alone, in the field of economic and social rights’.[159]
4.16 Building on the claim that the vast majority of prostitutes voluntarily choose prostitution and that it is a legitimate form of work, proponents of the prostitution-as-work perspective demand that the rights of prostitutes be respected in the same way that other worker’s rights are respected.[160] They attribute much of the police harassment and general violence experienced by prostitutes to society’s refusal to recognise that prostitutes have rights, and cite both gender and ethnic discrimination in police enforcement of laws against prostitution:[161]
‘From the point of view of some groups, then, it is the laws against prostitution that constitute the violation of human rights, rather than the prostitution itself’.[162]
4.17 The proponents of the view that prostitution is work argue that the ending of exploitative practices in the prostitution industry is currently held back by the distinction between prostitutes and other workers performing female, dangerous and low-status labour, such as domestic work or work in factories or on the land.[163] Bindman, for example, points to the international conventions that aim to protect all workers from exploitation. She however cautions that before the protection of these instruments can be invoked, it is necessary to first identify prostitution as work.[164]
‘The distinction between “the prostitute” and everyone else helps to perpetuate her exclusion from the ordinary rights which society offers to others, such as rights to freedom from violence at work, to a fair share of what she earns, or to leave her employer. An employment or labour perspective, designating prostitution as sex work, can bring this work into the mainstream debate on human, women’s and workers’ rights. It also allows us to recognize that the sex industry is always not where the worst conditions are to be found.’[165]
4.18 Supporters of the prostitution-as-work perspective therefore demand the decriminalisation of prostitution,[166] and argue that if the laws criminalising prostitution were removed, prostitution would be more likely to be seen as a legitimate form of work. This would in turn reduce the risk of police harassment and brutality, and would place prostitutes within the ambit of protective labour mechanisms.[167]
‘The lack of international and local protection renders sex workers vulnerable to exploitation in the workplace, and to harassment or violence at the hands of employers, law enforcement officials, clients and the public. The need for worker protection, including occupational safety provisions, is of particular relevance in the current context of HIV/AIDS.’[168]
4.19 While it is acknowledged that exploitation may result from prostitution, commentators point out that this possibility of exploitation may also apply to other forms of labour, for example, low-paid manual labour in the agriculture industry,[169] and is therefore not unique to prostitution.
4.20 In addition to seeing prostitution as economic empowerment, certain prostitutes’ rights activists have also expressed the view that prostitution is a sexually progressive practice for women, providing some women with a context for exercising power in sexual transactions. Alexander reports that many women in prostitution assert that ‘the first time they felt powerful was the first time they turned a trick’.[170]
4.21 On the other end of the spectrum is the view that prostitution is inherently exploitative, and that domination and violence are its essential features. This view is enunciated by, amongst others, the organisation WHISPER (‘Women Hurt in Systems of Prostitution Engaged in Revolt’). Like the proponents of the prostitution-as-work view, WHISPER works towards the decriminalisation of prostitution.[171] However, this is where the agreement between the two perspectives ends.
4.22 Supporters of WHISPER and others who categorise themselves as radical feminists renounce a number of the principles of the prostitution-as-work movement.[172] They challenge the latter perspective’s notion that prostitution is a victimless crime, relying on studies and interviews with current and former prostitutes documenting the fear and violence they experienced while in prostitution.[173] According to this perspective, the sexual acts of prostitution per se constitute violence, even where the prostitute ‘consents’ to such acts. Carter and Giobbe add:
‘Then there are the ancillary harms: the rapes, the robberies and the inevitable beatings punctuated by shouts of “bitch” and “whore” and “slut”, gratuitously meted out by pimps, by johns and by the police. These are the commonplace insults to injury that are directed at prostitutes simply because they are prostitutes.’[174]
4.23 Proponents of the prostitution-as-exploitation view also argue that the physical and sexual abuse inherent in prostitution results in many health complications and lasting damage, ranging from physical injuries such as gunshot wounds, knife wounds and broken bones to depression and post-traumatic stress disorder.[175]
4.24 They reject the claim that prostitution is a valid employment opportunity for women,[176] and instead note that it is ‘one of the most graphic examples of men’s domination of women’.[177]
‘Prostitution is not like anything else. Rather everything else is like prostitution because it is the model for women’s condition, for gender stratification and its logical extension sex discrimination. Prostitution is founded on enforced sexual abuse under a system of male supremacy that itself is built along a continuum of coercion – fear, force, racism and poverty.’[178]
4.25 Opponents of prostitution refute the notion of women freely choosing to enter prostitution, claiming that most women are coerced or physically forced into a life of prostitution and cannot escape.[179] This coercion may consist in the above forms of ‘direct’ coercion, or may consist in the economic marginalisation of women through educational deprivation and job discrimination, which ultimately renders them vulnerable to recruitment into prostitution.[180] This is expressed as follows by MacKinnon:
‘What is woman’s best economic option? Aside from modelling (with which it has much in common) hooking is the only job for which women as a group are paid more than men.’[181]
4.26 According to this analysis, therefore, the economic marginalisation that ‘forces’ women into prostitution constitutes a more subtle form of coercion, which ultimately implies that even where women appear to freely choose prostitution as the only or the most lucrative form of employment available to her, this choice is not really made voluntarily.[182]
4.27 Closely linked to the debate on whether prostitution should be viewed as work or as exploitation, there is also the question of whether prostitution is a ‘harmless’ form of immorality (that does not belong within the ambit of the criminal sanction) or alternatively, is inherently harmful and should therefore be subject to state control through criminalisation.
4.28 Burchell and Milton note that the enforcement of (sexual) morality through the medium of criminal law has long been a contentious issue.[183] The authors define the function of criminal law as follows:
‘The criminal law is thus a social mechanism that is used to coerce members of society, through the threat of pain and suffering, to abstain from conduct which is harmful to various interests of society. Its object is to promote the welfare of society and its members by establishing and maintaining peace and order’.[184]
4.29 They proceed to explain that many forms of ‘immorality’ are therefore punished because they are considered to be ‘harmful’ to others. However, where one assumes that a particular activity is not inherently harmful, the question arises whether the law should punish such ‘immorality’ merely because it is immoral?[185]
4.30 This issue rose into prominence in Britain during the 1950’s with the publication of the Report of the Wolfenden Committee on Homosexual Offences and Prostitution.[186] The majority of the Committee defined the function of the criminal law as being to preserve public order and decency, to protect citizens from what is ‘offensive or injurious’ and to provide sufficient safeguards against exploitation and corruption of others, particularly those who are especially vulnerable. In the view of the Committee it is not the function of the law to intervene in the private lives of citizens, or to seek to enforce any particular behaviour beyond what is necessary to carry out the functions outlined.[187]
4.31 The Wolfenden Committee also referred to the importance that society and the law should give to individual freedom of choice in matters of private morality:
‘Unless a deliberate attempt is to be made by society, acting thought the agency of the law, to equate the sphere of crime with that of sin, there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law’s business.’[188]
4.32 The publication of the Wolfenden Report led to a debate as to whether the preservation of morality is essential to the welfare of society. Lord Devlin argued that the ‘loosening of moral bonds’ is often the first stage of disintegration of a society, and therefore society is justified in taking the same steps to preserve its moral code as it does to preserve its government and other essential institutions:
‘The suppression of vice is as much the law’s business as the suppression of subversive activities...’.[189]
4.33 Hart presented the counter-argument that there is no empirical evidence to support Devlin’s assumption that immorality threatens the very existence of society,[190] and notes that Devlin moves from the acceptable proposition that some common morality is essential to society to the unacceptable proposition that ‘a change in morality is tantamount to the destruction of society’.[191]
4.34 The regulation of sexual morality by means of criminal sanction is not unknown in South African criminal law. For example, adultery, inter-racial sexual relations and sodomy have at different times all been subject to criminal prohibition.
4.35 This question recently received the attention of the Constitutional Court in National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others,[192] where the court was called on to determine the constitutionality of (inter alia) the common law offence of sodomy. In evaluating the impact of this offence on gay men, Ackerman J held that the nature and purpose of this common law offence is to criminalise private conduct of consenting adults which causes no harm to anyone else.
‘It has no other purpose than to criminalise conduct which fails to conform with the moral or religious views of a section of society.’[193]
4.36 The court also notes, in its subsequent inquiry into the purpose of the common law prohibition, that the enforcement of the private moral views of a section of the community, which are based to a large extent on nothing more than prejudice, cannot qualify as a legitimate purpose.[194] Ackerman J emphasises that the Constitution does not debar the state from enforcing morality; however, he does add the following cautionary note:
‘What is central to the character and functioning of the state, however, is that the dictates of the morality which it enforces, and the limits to which it may go, are to be found in the text and spirit of the Constitution itself.’[195]
4.37 The question that arises next is whether this basic premise changes if it transpires that the majority of society disapproves of particular activities.
4.38 Almodovar argues that societal disapproval of certain activities or practices does not necessarily mean that these activities should also be criminalised.[196] Behaviour that is unacceptable to the majority of society is not always penalised or prohibited. She notes that, for example, ‘not that long ago’, laws prohibiting homosexuality were actively enforced:
‘Well-meaning people believed that a stint behind bars would convince homosexuals to modify their offensive, immoral behavior... The question is, who determines which values, opinions and preferences become law in this society? Who decides what is offensive to us all? If there are a sufficient number of people who do not like gays, and they are vocal enough, should we return to incarcerating homosexuals because they offend society?’[197]
4.39 The South African Constitutional Court again noted the effect of the Constitution in this regard in its recent judgment in Carmichele v Minster of Safety and Security and Another.[198] The Court (per Ackermann J and Goldstone J) points out that before the advent of the ‘interim’ Constitution,[199] the refashioning of the common law entailed ‘policy decisions’ and value judgments’, which had to reflect ‘the wishes, often unspoken, and the perceptions, often but dimly discerned, of the people.[200] A balance had to be struck between the interests of the parties and the conflicting interests of the community according to the court’s perceptions of what justice demanded.
‘Under section 39(2) of the Constitution concept such as “policy decisions and value judgments” reflecting the “wishes... and the perceptions... of the people” and “society’s notions of what justice demands’ might well have to be replaced, or supplemented and enriched by the appropriate norms of the objective value system embodied in the Constitution’.[201]
4.40 It should further be noted that the difficulties of enforcing sexual morality by means of criminal sanction are compounded in a heterogeneous and diverse society such as the South African one.
4.41 The above analysis is contingent on the assumption that prostitution is in fact a harmless form of immorality. However, in stark contrast, there is also the contention that there are certain harms that are inherent to prostitution. Certain of these harmful aspects have been included in the discussion on prostitution-as-exploitation above. Additional facets that may be regarded as harmful include:
4.42 The latter aspect is addressed in more detail in Chapter 6 below. The first three aspects will be discussed here.
4.43 Historically, prostitution has been seen as undesirable because of its close connection to other crimes. Organised crime, robbery, assault, and drug trafficking are often cited as crimes associated with prostitution. Jenness notes that the classic argument is that these crimes proliferate in the environment fostered by prostitution.[202] In addition, neighbourhood decay is perceived to be closely associated with prostitution.[203] By criminalising prostitution, it is argued, the tide of crime that seems to accompany prostitution will also be stemmed.[204]
4.44 This motivation for the prohibition of prostitution has been criticised for its ‘circular reasoning’ in that it attributes the results of the criminal prohibition of prostitution to prostitution itself.[205] This criticism therefore holds that problems of ancillary crime may arise from the conditions created by the criminalised status of prostitution (which would not be the case if prostitution were to be removed from a criminalised framework).
4.45 Levick argues that in situations where there is a substantial demand for the criminalised activities and a concomitant potential for economic profitability (as is the case with prostitution), criminalisation serves to drive the industry underground and encourages the involvement of organised crime.[206]
4.46 Posel is of the opinion that the proscription of prohibition in South Africa has had the effect of increasing the criminal element in prostitution, producing the secondary crime that has become associated with the prostitution industry.[207] She notes that because prostitution is illegal, prostitutes seek assistance from pimps and others who ‘can make their job easier’, thus increasing the leverage that outsiders have in exploiting prostitutes. In many cities, the prostitution industry is therefore now highly organised and tightly controlled by pimps, gangs and / or drug dealers.[208]
4.47 Davis reports that studies have found no direct link between prostitution and ‘crime, drugs and urban decay’.[209] On the contrary, a 1977 study found that the connection between urban decay, crime and prostitution resulted from the fact that prostitution was only allowed in areas ‘the city had already written off’.[210] By contrast, where small brothels were integrated into ‘healthy’ neighbourhoods in Holland, such a decline did not take place.[211]
4.48 Levick notes that in the Western world, the dominant pattern of behaviour that has been taught and reinforced is Christianity.[212] Flowing from this religious ideology is the claim that prostitution is hostile to the notion of the family, ‘the union of one man with one woman in the holy estate of matrimony’.[213] Prostitution thus threatens the powerful vision of the family unit as the foundation of society, and presents us with the spectre of a woman who defiantly refuses to comply with expectations of fidelity and chastity.
4.49 As the idea of (non-commercial) sexual relations outside of marriage has become more accepted, the emphasis of the moral condemnation of prostitution has shifted to the impersonal and unemotional aspects of performing sexual acts for reward.[214] The contemporary argument, derived from Kantian ethics, holds that commercial sex is wrong because it involves ‘the alienation of the body to the will of another, and thus undermines the ultimate roots of the integrity of the moral personality’.[215] Levick remarks that the Kantian perspective, which subscribes to unity of sex and romantic love, directs its analysis at expectations of a woman’s sexuality, while ignoring the male client’s equal participation in the transaction and his concomitant moral responsibility.[216]
4.50 The male demand for prostitution has traditionally been explained through the proposition that men possess more intense and insistent sexual urges, and because of this, they desire a variety of sexual partners.[217] These urgent and inevitable sexual needs ‘entitle’ men to the transgression of the norm of unity of sex and romantic love. Thus the role of men in the prostitution transaction is explained by fundamental, ‘natural’ biological differences between men and women.[218] Levick explains how these stereotypical biological explanations raise social expectations of sexual behaviour:
‘In the social setting of prostitution, the expectations of the behaviour of men and women constitute a double standard of sexual morality. And these double standards are translated into legislation which invariably penalise sex workers, who are mostly women, and ignore the customers, who are mostly men’.[219]
4.51 She argues that the South African legislation on prostitution is situated squarely within the realm of the moralist standpoint. The current prohibition of prostitution is not attributable to concerns that prostitution may permit and perpetuate the sexual objectification or subjugation of women. Rather, the legislation arose from the ‘white, male Christian Nationalist Government which chose to construct the statute in a way that reinforced the stereotypes that sustain the commercial sex industry’.[220]
4.52 Public nuisance resulting from prostitution, notably street prostitution, is frequently cited as one of the reasons why prostitution should be criminalised. These nuisance factors may include, inter alia, excessive noise, traffic congestion, condoms left on pavements or in gardens and other forms of littering, and trespassing.
4.53 Police often cite complaints from residents as the main motivating factor for their invoking municipal by-laws against street prostitutes. Davis explains that ‘police containment is defined by public demand’, and notes that police will allow prostitution to exist in one area in order to keep it out of another.[221] She describes how, during the 1970’s, public pressure caused the closure of two notorious sex clubs in Vancouver, Canada.[222] As a result, the prostitutes formerly working in these clubs were displaced onto the streets.
4.54 The areas where prostitution was unofficially tolerated were unable to accommodate the new influx of prostitutes,[223] with the result that the ‘new’ street prostitutes spilled into more upscale residential areas. Residents and local business of these areas, unhappy with this development, lobbied police for action. They saw the sudden appearance of prostitutes in their area as evidence that the laws were not ‘tough’ enough or broad enough to enable the police to do their jobs (not taking into account that it was ‘tougher’ enforcement that had upset the status quo and caused the redistribution of prostitution into their area in the first place).[224]
4.55 Davis notes that police and municipal authorities, reacting to pressure from citizen groups, typically resort to exerting pressure on higher levels of government to enact laws giving police wider latitude in enforcement. The main aim is removal, so that –
‘... respectable citizens are not offended by the sight of prostitution and so that police and public officials are not offended by the sight of prostitution and so that police and public officials may appear to have moved quickly to satisfy their constituency.’[225]
4.56 Milton remarks that while there is no question that in some of its manifestations prostitution may produce conditions that are a nuisance to the public, these conditions are relatively easily controlled without demanding that the actual practice of prostitution be prohibited by the criminal sanction.[226]
4.57 Another issue that has been the subject of considerable debate, is the question why women and men enter prostitution. Although it may be tempting to attempt to identify the ‘causes’ of prostitution, it is important to note the complexity of prostitution and of the dynamics underlying the decision to work as a prostitute.[227] As Posel explains, the supply of prostitution cannot be explained in a ‘deterministic fashion’, and the decision to prostitute should be understood in terms of economical criteria, socio-psychological factors and the demand for commoditised sex.[228]
4.58 Economic factors constitute a significant driving force behind prostitution, with prostitution serving both as a means of economic survival for women with few skills and as a more lucrative form of employment than that available to them in the formal labour market.[229] The prostitution ‘market’, therefore, should be examined against the broader background of the economic status of women.[230]
‘What is key for all streetwalkers (and for most female prostitutes generally) is that there is no other job at which they could make anywhere near a comparable wage.’[231]
4.59 Pauw and Brener point out that South African women are usually poorer than men, often unemployed or only able to enter into informal trade.[232] Escalating unemployment, as well as poor levels of education and skills decrease women’s employment opportunities and wages, thus creating an environment where ‘a desire for upward mobility and access to resources may lead to the exchange of sex for economic survival’.[233]
4.60 The reasons given by prostitutes themselves bear out this analysis. South African prostitutes have explained their entry into prostitution as follows:
4.61 Once it is recognised that prostitution has a strong economic foundation, an examination of the relationship between the growth of the prostitution sector and general economic development logically follows.[237] Lim notes that certain macro-economic development policies may influence the proliferation of the prostitution sector through their impact on, for example, the availability of viable or remunerative employment alternatives for the poorly educated or persons with limited skills, growing income inequalities and their cumulative socio-economic consequences and the strategies adopted by poor families for survival, especially in the absence of ‘social safety nets’.[238]
4.62 Not all persons who are poor or who seek to increase their income make the decision to work in prostitution. In addition to the pivotal role played by economic determinants, this decision is also contingent on the individual characteristics and personalities of the person concerned. Early scholars devoted much time and effort to the development of physical and psychological profiles of prostitutes.
4.63 Parent-Duchatelet, in his anthropological study of Parisian prostitutes,[239] presented a statistical description of the physical types of prostitutes, the quality of their voices, the colour of their hair and eyes, their physical abnormalities, their sexual profiles in relation to childbearing and disease, their family background and education.[240] He developed a stereotype of the prostitute as ‘plump’, filthy and speaking in a harsh voice.[241] He also composed a personality sketch of the prostitute, which noted (inter alia) that prostitutes were women with ‘lightness and mobility of the spirit’, women who have difficulty in following ‘a chain of reasoning; the smallest things distracts and carries them away’.[242]
4.64 As bizarre as Parent-Duchatelet’s findings may appear to the modern reader, Bell observes that his study was the prototype for most nineteenth-century research on prostitution in Europe, and served as a model for the British investigation of prostitution from the 1840’s to the 1880’s.[243]
4.65 It is therefore not surprising that Dirasse cautions against an uncritical reliance on social science literature for an analysis of the determinants of prostitution.[244] She argues that most psychological and psychoanalytic works emphasise perceived instabilities in the woman’s personality, leading to a view of the prostitute as a deviant, neurotic personality.[245] She criticises these analyses for their excessive focus on the prostitute rather than on the social context in which choices are exercised.[246]
4.66 The same caution should therefore be applied in noting the common denominators that have been identified in women and men who work as prostitutes. These common denominators include a sense of worthlessness and a lack of self-esteem and a high incidence of childhood incest, sexual abuse or neglect.[247]
4.67 However, when looking at these denominators, the lines between cause and effect become easily blurred. Authors have pointed out that prostitutes’ lack of self-esteem may be as much a result of working in prostitution (with the concomitant social ostracism and constant threat of criminal prosecution) as a cause thereof.[248]
4.68 The nebulous line between cause and effect becomes even more indistinct when one attempts to examine the nexus between prostitution and substance dependence. Research indicates a high incidence of substance dependence among persons working in prostitution.[249] Pauw and Brener remark that it is crucial to understand the role that drugs play in prostitution.[250] It has, for example, been suggested that drugs relieve stress and help prostitutes cope with their work.[251]
4.69 According to Leggett, the links between prostitution and drugs in South Africa more closely resemble the American situation than the British one,[252] both in terms of the drug of choice as well as the question of causation.[253] One British study has shown that about half of the prostitutes interviewed began working in prostitution in order to pay for drugs. Leggett’s research indicates that this is not the case in South Africa, but he also points out that there is currently insufficient information on the ‘direction of causation’, i.e. whether drugs are leading women and men into prostitution, or whether prostitution causes persons to use drugs.[254]
4.70 Since the 1980’s, there has been a ‘new wave’ of feminist-backed campaigns against trafficking in women, child prostitution and sex tourism.[255] However, there is a fundamental division among these activists. This division hinges on the question of whether or not a person can voluntarily choose prostitution as a form of work, or whether, as proposed by the so-called ‘neo-abolitionists’, there is always an element of coercion even where the prostitute appears to choose this option.
4.71 The strongest proponents of the ‘neo-abolitionist’ perspective are the Coalition Against Trafficking in Women (CATW), founded by Kathleen Barry.[256] CATW has defined prostitution as a form of sexual exploitation, similar to rape, genital mutilation, incest and battering.[257] The organisation sees ‘sexual exploitation’ as ‘a practice by which women are sexually subjugated through abuse of women’s sexuality and/ or violation of physical integrity as a means of achieving power and domination including gratification, financial gain, advancement’.[258]
4.72 An important recent development around trafficking is the development of a Protocol[259] on trafficking to supplement the UN Convention Against Transnational Organised Crime. This Protocol is discussed below.[260]
[133] There is, however, a lack of contemporary material focusing on sub-Saharan Africa.
[134] L Dirasse The Commoditization of Female Sexuality: Prostitution and Socio-Economic Relations in Addis Ababa, Ethiopia (1991) at 2.
[135] H Skramstad ‘Prostitute as metaphor in gender construction: a Gambian setting’ Working Paper D 1990:11, Chr Michelsen Institute, Norway (1990) at 1.
[136] Dirasse (op cit) at 4-5. Kempadoo also makes use of this notion of the ‘continuum of sexual relations from monogamy to multiple sexual partners’ as found in African and Caribbean countries – at 12.
[137] Dirasse (op cit) at 5. The provision of certain domestic services as part of the transaction between prostitute and client has also been noted in respect of colonial Kenya: see eg L White ‘Women’s domestic labour in colonial Kenya: prostitution in Nairobi, 1909-1950’ Working Paper No 30 African Studies Centre: Boston University (1980).
[138] Dirasse (op cit) at 5.
[139] T Leggett ‘The Least Formal Sector: Women in Sex Work’ Crime and Conflict No 13 (1998) at 22. See also the discussion on the determinants of prostitution below.
[140] 1921 EDL 327.
[141] At 329.
[142] Milton & Cowling (op cit) E3-76.
[143] See in this regard e.g. W Schurink and T Leventhal ‘Business women exchanging sex for money: a descriptive study’ SA Journal of Sociology (1983) at 158.
[144] See in this regard e.g. Kempadoo (op cit) at 6.
[145] J Gardner Paper read at Health Conference (February 2001).
[146] Ibid at 32.
[147] See N Bingham ‘Nevada sex trade: a gamble for the workers’ Yale Journal of Law and Feminism (1998) 77-84.
[148] Unfortunately the scope of this Issue Paper does not allow an extensive discussion of the different and conflicting feminist perspectives on prostitution. See in this regard e.g. Jenness (op cit) at 34-36; M Levick A Feminist Critique of the Prostitution / Sex Work Debate (Unpublished LLM dissertation, University of Cape Town) 1996 at 1; S Schwarzenbach ‘Contractarians and feminists debate prostitution’ Review of Law and Social Change (1990/1991) at 104 et seq.
[149] N Bingham ‘Nevada Sex Trade: A Gamble for the Workers’ Yale Journal of Law and Feminism (1998) at 77.
[150] Lim (op cit) at 14.
[151] Lim (op cit) at 14-15.
[152] Ibid. See also NJ Almodovar ‘For their own good: the results of the prostitution laws as enforced by cops, politicians and judges’ Hastings Women’s Law Journal (1999) at 122-123; Jenness (op cit) at 69-70; Lim (op cit) at 14-15.
[153] Levick (op cit) at 11. See also Bingham (op cit) at 78.
[154] Schwarzenbach (op cit) at 105.
[155] MA Baldwin ‘Split at the root: prostitution and feminist discourses of law reform’ Yale Journal of Law and Feminism (1992) at 95.
[156] Levick (op cit) at 13.
[157] Bingham loc cit.
[158] Jenness (op cit) at 67.
[159] Bindman (op cit) Par 2b.
[160] Bingham (op cit) at 79.
[161] Bingham notes in relation to the US that female prostitutes are arrested in much greater numbers than the men who solicit them, and most of the women who are arrested are ‘minority’ women - (op cit) at 79 n 74.
[162] Lim (op cit) at 15. Our emphasis.
[163] See e.g. Bindman International Perspective at 65-67.
[164] Idem at 67.
[165] Bindman International Perspectives at 65-67.
[166] See for example Jenness (op cit) at 47-49.
[167] Bingham (op cit) at 81.
[168] Bindman (op cit) at Par 2a.
[169] Bindman notes (in the international context) that exploitation may also occur, for example, in the carpet industry in India, the growing of sugar cane in Haiti, and in domestic service in Indonesia and the United Kingdom – International Perspectives at 67.
[170] P Alexander ‘Introduction’ in F Delacoste & P Alexander (eds) Sex Work: Writings by Women in the Sex Industry (1987) at 15, cited in Baldwin (op cit) at 96. Margo St James, founder member of COYOTE, also wrote that ‘I’ve always thought that whores were the only emancipated women.’ - M St James ‘The Reclamation of Whores’ in L Bell (ed) Good Girls / Bad Girls: Feminists and Sex Trade Workers Face to Face (1987) at 84, cited in E Bernstein ‘What’s wrong with prostitution? What’s right with sex work? Comparing markets in female sexual labor’ Hastings Women’s Law Journal (1999) at 98. See also S Chun ‘An uncommon alliance: finding empowerment for exotic dancers through labor unions’ Hastings Women’s Law Journal (1999) at 233.
[171] See however V Carter & E Giobbe ‘Duet: Prostitution, racism and feminism discourse’ Hastings Women’s Law Journal (1999) at 54-55 contra.
[172] Bingham loc cit.
[173] Idem at 82. See also E Giobbe ‘Prostitution: Buying the right to rape’ in AW Burgess (ed) Rape and Sexual Assault III: A Research Handbook (1991) at 499, cited in B Balos & ML Fellows (op cit) at 499.
[174] Carter and Giobbe (op cit) at 47.
[175] Ibid at 47-48.
[176] See Schwarzenbach (op cit) at 108-109.
[177] C Pateman ‘Defending prostitution: charges against Ericsson’ Ethics (1983) at 561, cited in Schwarzenbach (op cit) at 106.
[178] S Wynter ‘WHISPER: Women Hurt in Systems of Prostitution Engaged in Revolt’ in Delacoste & Alexander (op cit) at 268, cited in Bingham loc cit. ‘Sarah Wynter’ was the pseudonym used by Evelina Giobbe until 1989, when she took back her birth name – see Baldwin (op cit) 47 n 3.
[179] Bingham (op cit) at 82.
[180] Carter and Giobbe (op cit) at 43.
[181] C MacKinnon Feminism Unmodified: Discourses on Life and Law (1987) 23-25, cited in Bernstein (op cit) at 104.
[182] A Marxist feminist analysis of prostitution attempts to draw a parallel between prostitution, capitalist labour and the nature of the bourgeois marriage (Levick (op cit) at 15.) According to Marx, ‘prostitution (in the ordinary sense) is only a specific expression of the general prostitution of the labourer’.
[183] Burchell & Milton (op cit) at 34. See in this regard also South African Law Commission Project 85: Fifth Interim Report on Aspects of the Law Relating to AIDS: The Need for a Statutory Offence aimed at Harmful HIV-related Behaviour (2001) Par 7.3.1.
[184] Burchell and Milton (op cit) at 2.
[185] Ibid at 35.
[186] Cited in Burchell & Milton loc cit.
[187] Par 13-14.
[188] Section 61.
[189] Lord Devlin The Enforcement of Morals (1959) at 14-15, cited in Burchell & Milton (op cit) at 35-36.
[190] HLA Hart Law, Liberty and Morality (1962) at 50, cited in Burchell & Milton (op cit) at 36.
[191] Ibid at 51.
[192] 1998 (12) BCLR 1517 (CC); 1999 1 SA 6 (CC). See also Edwin Cameron ‘Constitutional protection of sexual orientation and African conceptions of humanity’ SALJ Vol 118 (2001) 642 at 647 et seq.
[193] At Par 26.
[194] At Par 37.
[195] At Par 136.
[196] Almodovar (op cit) at 128.
[197] Ibid.
[198] 2001 (10) BCLR 995 (CC).
[199] The Constitution of the Republic of South Africa Act 200 of 1993.
[200] At Par 56.
[201] Ibid.
[202] Jenness (op cit) at 31.
[203] Ibid.
[204] See Milton in Jagwanth, Schwikkard and Grant (eds) Women and the Law (1994) 143.
[205] Ibid; see also Almodovar (op cit) at 126-127.
[206] Levick at 29.
[207] Posel (op cit) at 29-30.
[208] Posel (op cit) at 30.
[209] Davis (op cit) at Par I.1b.
[210] Idem.
[211] Idem.
[212] Levick (op cit) at 7.
[213] Levick (op cit) at 47, see also Milton in Jagwanth, Schwikkard and Grant (eds) Women and the Law (1994) at 144.
[214] Levick (op cit) at 8.
[215] Ibid. According to Kant, the body is the repository of autonomous human personality, (the primary good). To sell the body is to alienate the personality, which is morally wrong - see Milton (op cit) at 146-147.
[216] D Posel ‘The Sex Market in the Inner City of Durban’ Occasional Paper No 28: Economic Research Unit, University of Natal, Durban (1993) at 8.
[217] Levick (op cit) at 8-9.
[218] Idem at 9; Posel (op cit) at 9.
[219] Levick (op cit) at 9-10.
[220] Levick (op cit) at 10.
[221] At Par I.2.
[222] Ibid. See also in this regard D Brock Making Work, Making Trouble (1998) at 56-57.
[223] There were estimated to be 100 prostitutes working the two clubs.
[224] Ibid.
[225] Ibid.
[226] Milton in Jagwanth, Schwikkard and Grant (eds) Women and the Law (1994) at 144.
[227] See in this regard Posel (op cit) at 19.
[228] Ibid. See also Schurink & Levinthal (op cit) at 154-155.
[229] Idem at 19-21.
[230] Idem at 21.
[231] Bernstein (op cit) at 104.
[232] I Pauw & L Brener ‘Identifying factors which increase risk of HIV infection and mitigate against sustained safer sex practices among street sex workers in Cape Town’ Medical Research Institute (1997) at 3.
[233] Idem. See also in this regard T Leggett ‘Poverty and sex work in Durban, South Africa’ Society in Transition (1999) 157 et seq.
[234] ‘Rachel’ anonymous prostitute speaking at the Conference on Adult Sex Work, Cape Town, May 2000.
[235] ‘Julie’ interviewed in ‘Sex and the city’ Student Life (March 2000).
[236] T Mbita ‘In the shade of roadside trees, the oldest trade of all thrives’ Cape Argus (9 November 1999).
[237] Lim (op cit) at 11.
[238] Idem at 11-12.
[239] AJB Parent-Duchatelet De la prostitution dans la Ville de Paris, cited in S Bell Reading, Writing, and Rewriting the Prostitute Body (1994) at 45.
[240] Bell (op cit) at 45-46. She notes that Parent-Duchatelet tried, although failed, to establish a correlation between Parisian prostitutes’ colouring and their place of origin in cities, towns or the countryside.
[241] Idem at 48.
[242] Idem at 49. Parent-Duchatelet also suggests that the prostitute personality displays a greater tendency towards lesbianism – Bell loc cit.
[243] See also Sanger (op cit), who extensively relies on Parent-Duchatelet in his chapters on prostitution in Paris – at 153 et seq.
[244] L Dirasse The Commoditization of Female Sexuality (1991) at 10.
[245] Idem at 11.
[246] Idem at 11-13. See also Posel (op cit) at 23.
[247] Idem at 22; Baldwin (op cit) at 100; Carter & Giobbe (op cit) at 43-44.
[248] Posel (op cit) at 23.
[249] See Baldwin (op cit) at 100 n 185 and authorities cited there; Carter and Giobbe (op cit) at 49. See also Pauw and Brener (op cit) at 20 for the results of their South African study.
[250] Idem at 22.
[251] Ibid.
[252] At Par 4.4.
[253] See in this regard also Par 5.72 et seq below.
[254] At Par 6.
[255] Doezema (op cit) at 37.
[256] Doezema loc cit.
[257] CATW (Draft) Convention on the Elimination of All Forms of Sexual Exploitation of Women, 1993 Article 2(b), cited in Doezema (op cit) at 37.
[258] Article 1 of the CATW (Draft) Convention, cited in Doezema loc cit.
[259] Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially women and Children, Supplementing the United Nations Convention Against Transnational Organised Crime [hereinafter referred to as ‘the Trafficking Protocol’.]
[260] See Chapter 9 below.
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