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1.1 Prostitution[1] has been the subject of considerable public debate in South Africa recently. The topic remains an emotive one, and opinions on prostitution are generally strongly polarised.[2] It is specifically the question of how the South African legal system should respond to prostitution that has recently received unprecedented attention.[3]
1.2 Any discussion of adult prostitution draws together a number of themes, ranging from the constitutional protection of human rights to the question of the role of the law in enforcing moral or religious values. This Issue Paper attempts to explore these themes against the backdrop of complex South African realities, including the socio-economic marginalisation of women and the impact of the HIV/AIDS pandemic.
1.3 Although this Issue Paper focuses on adults, the impact on and consequences of adult prostitution for children and other vulnerable groups cannot be excluded or ignored. In this context, the manner in which the law addresses prostitution is critical.
1.4 This investigation into adult prostitution had as its starting point the investigation originally entitled ‘Sexual Offences By and Against Children’. The Commission decided to limit its investigation into sexual offences against children, as the Project Committee on Juvenile Justice was dealing specifically with the juvenile offender (i.e. with sexual offences committed by children).[4] It also became clear during the course of the investigation and at the workshops held on the Issue Paper on Sexual Offences Against Children[5] that any proposed changes in particular to the substantive law relating to sexual offences would have a far reaching effect on the position not only of children but adults as well.
1.5 This opened a lively debate as to whether all sexual crimes, including those against adults, should be covered by the investigation. However, this debate largely became irrelevant after the Commission received a request from the Justice Parliamentary Portfolio Committee and the (then) Deputy Minister of Justice to consider the position of adults affected by sexual violence. In the light of these developments, the Commission decided to expand the scope of the investigation to include sexual crimes against adults and the investigation was renamed ‘Sexual Offences’.
1.6 A considerable amount of time and energy was spent on the planning of the investigation. Questions on whether one or more discussion papers were needed and what the scope or focus of those discussion paper should be were debated. On the one hand, some felt that a particular focus (on children, for instance) might be lost in one, general discussion paper. On the other hand, practical considerations and political and other pressure made it imperative to deliver soon. In the end the Commission decided to publish four separate discussion papers (with draft legislation, where necessary).
1.7 The first Discussion Paper, published in September 1999, addressed the substantive law relating to sexual offences and contained a draft Sexual Offences Bill.[6] It had both a child and adult focus. The second discussion paper, published in December 2001, deals with matters concerning process and procedure and again has both an adult and child focus.[7]
1.8 This document forms the third in this quartet and concentrates on adult prostitution. Child prostitution has been comprehensively dealt with in Discussion Papers 85 and 102. The fourth paper will deal with pornography.
1.9 The previous Minister of Justice, Dr AM Omar, directed the Commission to conduct the investigation into sexual offences by and against children. In June 1996 the Commission accorded the investigation the highest possible priority rating and recommended that a Project Committee be appointed to assist the Commission in its task.
1.10 At the time of writing of this Issue Paper, the following persons were members of the Project Committee:
Ms Zubeda Seedat (Chairperson)
Ms Joan van Niekerk (Project Leader; Childline, KwaZulu Natal)
Ms Lebo Malepe (Canada - South Africa Justice Linkage Project)
Ms Charlotte McClain (Human Rights Commission)
Professor John Milton (School of Law, University of Natal)
Ms Bronwyn Pithey (formerly at Rape Crisis, now with the Sexual Offences and Community Affairs Unit in the office of the National Director of Public Prosecutions)
Dr Rose September (Institute for Child and Family Development, UWC)
1.11 With the kind financial assistance of the Deutsche Gesellschaft für Technische Zusammenarbeit (GTZ), a specialist consultant in the form of Ms Helene Combrinck of the Woman and Human Rights Project, Community Law Centre, University of the Western Cape was appointed in June 2000 to initially assist with and later to prepare this Issue Paper. In providing assistance to the Project Committee, Ms Combrinck also acted in terms of a funding agreement with the Swedish Development Agency (SIDA) in terms of which the Community Law Centre was to do research ‘towards addressing the current legal status of commercial sex work’. The Commission wishes to express its sincere appreciation for the work done by Ms Combrinck and the financial assistance provided by the GTZ and SIDA.
1.12 The Project Committee began its work in January 1997. An Issue Paper on Sexual Offences Against Children was researched and developed and then released by the Law Commission on 31 May 1997.[8]
1.13 The Issue Paper briefly outlined the issues of child prostitution, procuring of a child for prostitution and child sex tourism, and posed the following two specific questions:
1.14 The Issue Paper was widely distributed to all sectors involved with managing sexual offences by and against children, as well as non-governmental and community-based organisations. Comments and submissions on the Issue Paper were invited, and a number of workshops were held with at least one workshop in each of the nine provinces.[11]
1.15 Responses received in relation to child prostitution were consolidated in the first Discussion Paper. It should be noted that due to the specific focus of the Issue Paper on sexual offences against children, the issues of concern around prostitution were quite narrowly delineated. In this sense, this Issue Paper simultaneously places both the problem statement and possible options relating to adult prostitution into the realm of public discussion. For the benefit of the reader, the Commission’s preliminary position regarding child prostitution is set out below under the general rubric ‘commercial sexual exploitation of children’.
1.16 Following the First World Congress against the Commercial Sexual Exploitation of Children in 1996 in Stockholm, a new section 50A was inserted in the Child Care Act, 1983 by means of the Child Care Amendment Act 13 of 1999. The aim of this section is to protect children subject to this form of abuse. Section 50A reads as follows:
(1) Any person who participates or is involved in the commercial sexual exploitation of a child shall be guilty of an offence.
(2) Any person who is an owner, lessor, manager, tenant or occupier of property on which the commercial sexual exploitation of a child occurs and who, within a reasonable time of gaining information of such occurrence fails to report such occurrence at a police station, shall be guilty of an offence.
(3) Any person who is convicted of an offence in terms of this section, shall be liable to a fine, or to imprisonment for a period not exceeding 10 years, or to both such fine and such imprisonment.
1.17 ‘Commercial sexual exploitation’ is defined in the Child Care Act, 1983 (as amended in 1999) as the ‘procurement of a child to perform a sexual act for a financial or other reward payable to the child, the parents or guardian of the child, the procurer or any other person’. The definition is in keeping with the definition agreed upon at the Stockholm World Congress.
1.18 Two components of the section are intended to strengthen protection for children who are subject to commercial sexual exploitation. The first is by the creation of an offence to criminalise participation in the commercial sexual exploitation of a child. This makes the client’s actions subject to criminal sanctions, in sharp contrast to the situation under the Sexual Offences Act 23 of 1957. Secondly, subsection (2) targets the owner, lessor, manager or occupier of property on which child prostitution is taking place who, whilst being aware of such occurrences, fails to report this to the police.
1.19 The Commission approaches the commercial sexual exploitation of children in a two-pronged fashion: the focus in the Sexual Offences investigation is on the use of the criminal law, while the investigation into the Review of the Child Care Act adopts a protective, social developmental approach. However, both investigations are premised on providing severe criminal sanctions against those who sexually abuse and exploit children (the perpetrators). The Commission has also made it very clear that the child who is being sexually exploited should be regarded as a victim in need of protection and that the actions of such child should not be criminalised. The investigation into the Review of the Child Care Act goes further and not only says that such child is a victim (as opposed to an offender), but also that such child is a child in need of care and therefore entitled to the care and protection and preventative measures currently embodied in the Child Care Act, 1983 and those being proposed in the draft Discussion Paper on the Review of the Child Care Act.
1.20 An overview of the legislation addressing the issue of child prostitution is given by the Commission in its Discussion Paper on Sexual Offences: The Substantive Law. In the Discussion Paper the Commission recommends a total prohibition of child prostitution, and explicitly criminalises the commercial sexual exploitation of children.[12] The Commission recommends that a criminal offence be created whereby any person who intentionally invites, persuades or induces a child to allow him or her or any other person to commit a sexual act with that child for financial or other reward to the child or to any other person will be guilty of an offence. Other provisions in the draft Sexual Offences Bill seek to strengthen the prohibition of child prostitution.
1.21 Given the focus of the envisaged new sexual offences legislation and the Government’s commitment to eradicate child prostitution, it is expected that stricter enforcement and more criminal investigations will bring to light more children involved in or affected by child prostitution. The Commission recommends that where a criminal investigation reveals that a particular child has been involved in prostitution, such child be treated as a child in need of care and be brought before the children’s court.[13] Where necessary, the child must be removed to a place of safety, but this should not be the general rule. It might be more appropriate, for instance, to arrest and remove a father who pimps his child, than to remove the child.
1.22 However, the point must be made that adult prostitutes (or commercial sex workers) are not per se unfit parents. The fact that a child’s parent or care-giver is a prostitute does not imply that that child is in need of care. Indeed, such parent or care-giver may well be prostituting himself or herself in order to maintain his or her child.
1.23 Trafficking in children is not limited to the commercial sexual exploitation of those children and legal provisions need to cover trafficking for other purposes such as, for example, labour or trade in organs. To this end, the Commission has recommended the inclusion of specific child anti-trafficking provisions in the new children’s statute.[14] Although South Africa has no anti-trafficking legislation, several legal remedies in the Child Care Act, 1983 can be used to protect children who have been or are being trafficked for purposes of commercial sexual exploitation.[15]
1.24 Where a child is trafficked to South Africa from another country, the Commission has recommended in the Discussion Paper on the Review of the Child Care Act that such a child should be afforded refugee status,[16] entitling the child to the protection measures such a classification will bring. In particular such a child should enjoy full legal protection, in accordance with the rights set out in the Bill of Rights to the Constitution and the Refugees Act 130 of 1998, in South Africa. Where such a refugee child is found under circumstances which clearly indicate that the child in question is in need of care as contemplated in the Child Care Act, 1983, he or she must be brought before the children’s court. The children’s court enquiry can then trigger the full possible range of protection measures available under the Child Care Act, 1983.
1.25 Research shows that South African children are increasingly being trafficked by their own parents into slavery or prostitution in order to generate an income or to pay off a debt. The Commission believes the authorities and the Children’s Court will have little difficulty in proclaiming such a trafficked child a child in need of care; to summarily remove that child, and to place that child in alternative care. In these circumstances, it seems rather pointless to expect social workers to perform family reunification services in order to have the child returned to the very person(s) who trafficked him or her in the first place. This is not to say that other welfare services should not be rendered to such family. Indeed, given the extremes to which the parent(s) have gone to traffic their own child, it should certainly be a cause for concern. This should be particularly true where other siblings remain with the parents. For this reason, the Commission has recommended that if a court finds that a child has been trafficked for purposes of commercial sexual exploitation by his or her parents or any other person legally responsible for the child, some or all of the parental rights of that person be suspended pending an enquiry, that the court holding such an enquiry may terminate all parental rights, and may order that a permanency plan for such be developed.[17]
1.26 The Commission believes that severe criminal sanctions linked to trafficking and the other forms of commercial sexual exploitation, the strengthening of the sexual offences legislation, the application of extra-territorial legislation, etc. will serve as a significant deterrent and therefore preventative measure.
1.27 The Films and Publications Act, 65 of 1996, as amended by Act 34 of 1999, defines child pornography to include ‘any image, real or simulated, however created, depicting a person who is or who is shown as being under the age of 18 years, engaged in sexual conduct or a display of genitals which amounts to sexual exploitation, or participating in, or assisting another person to engage in sexual conduct which amounts to sexual exploitation or degradation of children’. The Act makes it an offence for any person who ‘knowingly creates, produces, imports or is in possession of a publication which contains a visual presentation of child pornography; or creates, distributes, produces, imports or is in possession of a film which contains a scene or scenes of child pornography’. The production and possession of child pornography is thus completely prohibited.
1.28 However, while these provisions of the Films and Publications Act 65 of 1996 are on the statute book, it appears that it is very difficult in practice to prosecute and convict any person for contraventions of this Act. As a result, the Commission has decided to focus specifically on pornography and its impact upon children in a separate paper to be prepared in 2002.
1.29 Given the work already done by the Commission on the commercial sexual exploitation of children, this Issue Paper will focus on adult prostitution only.
1.30 This Issue Paper represents the current thinking and opinion of the Commission on the legal status of adult prostitution as it has been predominantly informed by research and consultation at local, national and international levels. It presents various options to deal with the problem of prostitution such as criminalization, legalization and decriminalization in Chapter 10. The advantages, disadvantages and implications of adopting a particular option are also set out in this Chapter. The Commission therefore deliberately refrained from taking a particular position regarding the approach to be adopted to the legal regulation of prostitution at this stage of the investigation. Obviously the Commission will be informed by the public consultation process following the release of this Issue Paper and the outcome of the constitutional challenges presently underway.
1.31 Due to the contentious nature of this subject, the Commission wishes to invite submissions and discussion on this Issue Paper from as broad a range of sources as possible. The Commission has committed itself to consult on this Issue Paper and interested parties are invited to avail themselves of this opportunity to participate in the legislative process.
1.32 After submissions and input from the consultation process have been integrated into the proposals, a discussion paper with draft legislation (if appropriate) will be prepared. The discussion paper and draft legislation will set forth the Commission’s preliminary recommendations and submissions will again be invited. After taking the submissions received into consideration, a report will be prepared. The report will contain the Commission’s final recommendations. This report will then be submitted to the Minister for Justice and Constitutional Development. It remains the prerogative of the Minister to implement the Commission’s recommendations.
1.33 The Commission believes that it is essential to involve all stakeholders in the consideration of the legal response to prostitution. Specific efforts will therefore be made to ensure that the debates are as inclusive as possible.
1.34 The question of whether this Issue Paper should employ the terms ‘prostitution’ / ‘prostitutes’ or ‘commercial sex work’ / ‘sex workers’ received considerable attention in the deliberations of the Commission. While the latter terms have recently gained more popularity, and are generally regarded as less offensive or judgmental as ‘prostitution’ / ‘prostitute’, there were also objections against the use of ‘sex work/ worker’.
1.35 There is no consensus among sex workers / prostitutes themselves as to what the ‘appropriate’ terminology should be. Prostitutes may refer to themselves as ‘business girls’, ‘sex therapists’, ‘masseurs/ masseuses’, and a wide range of related terms. Colloquial terms for prostitution have also developed: for example, in Cape Town, the phrase ‘sy is op die pad’[18] is used to indicate that a woman is working as a prostitute (here, specifically an outdoor prostitute).[19]
1.36 The Commission notes that the commercial sex industry strictly speaking extends beyond what is typically referred to as ‘prostitution’ to also include, for example, the pornography industry and sex-based entertainment such as ‘live sex shows’.[20] The phrases ‘prostitution’ / ‘prostitutes’ would therefore be useful to connote a specific ‘sub-category’ of the all-encompassing concept of ‘the commercial sex industry’.
1.37 Due to the considerations outlined above, as well as the fact that the terms ‘prostitution’ / ‘prostitutes’ are familiar to most members of South African society, the Commission elected to resort to these terms for purposes of this Issue Paper. In addition, the term ‘prostitution’ is used in the Sexual Offences Act.
[1] See Par 1.37 below on the use of the term ‘prostitution’.
[2] See, for example, K Magardie ‘Put an end to prostitution by removing the demand’ Mail & Guardian, 18-24 August 2000; N Distiller ‘Criminalising prostitution won’t end it’ Mail & Guardian, 1-7 September 2000.
[3] This legal response was recently thrown into sharp focus by the judgment of the Transvaal Division of the High Court in Jordan and Others v The State 2002 (1) SACR 17 (T), where it was held that the pivotal provision in South African law dealing with prostitution, viz. section 20(1)(aA) of the Sexual Offences Act 23 of 1957 was inconsistent with the Constitution of the Republic of South Africa Act 108 of 1996 [hereinafter referred to as ‘the 1996 Constitution’] and therefore invalid. This finding is currently awaiting confirmation by the Constitutional Court in terms of section 172(2)(a) of the 1996 Constitution. In addition, certain provisions of the Sexual Offences Act are also currently being challenged in Philips v Director of Public Prosecutions (Witwatersrand Local Division) and Others 2002 (1) BCLR 41 (W). The applicant in this matter has applied for a declaratory order to the effect that certain provisions of this Act are inconsistent with the Constitution. This application is discussed in more detail in Par 6.147 below.
[4] This was done in an attempt to minimise overlap between this investigation and other related investigations, most notably Project 106 – Juvenile Justice and Project 110 – The Review of the Child Care Act.
[5] South African Law Commission Issue Paper 10 (Project 107): Sexual Offences Against Children.
[6] South African Law Commission Discussion Paper 85 (Project 107) Sexual Offences: The Substantive Law [hereinafter referred to as ‘’Discussion Paper 85’’].
[7] South African Law Commission Discussion Paper 102 (Project 107) Sexual Offences [hereinafter referred to as ‘’Discussion Paper 102’’].
[8] South African Law Commission Issue Paper 10 (Project 107): Sexual Offences Against Children.
[9] Par 4.11.13.
[10] Par 4.11.
[11] See Par 7.4.7 – 7.4.12 of Discussion Paper 85 for details of this workshop process.
[12] See section 9 of the draft Sexual Offences Bill as contained in the Commission’s Discussion Paper 102: Sexual Offences.
[13] Par 13.7.5.5 of Discussion Paper 103.
[14] Para 13.7.4 and 22.5.4 of Discussion Paper 103.
[15] See, for instance, section 51 of the Child Care Act, 1983.
[16] Para 13.7.4 and 22.5.4 of Discussion Paper 103.
[17] Par 13.7.4 of Discussion Paper 103.
[18] Literally translated: ‘she is on the road’.
[19] As an aside, it is interesting to note that especially in the international sphere, terms such as ‘whore’ and ‘slut’, which were traditionally used in a derogatory sense, are now being ‘reclaimed’ by prostitute activists. Gevisser and Cameron explain this phenomenon in the preface to Defiant Desire: Gay and Lesbian Lives in South Africa Braamfontein: Ravan Press 1994.
[20] See Chapter 3 below.
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