Sex work amendment bill open for public comment

The Criminal Law (Sexual Offences and Related Matters) Amendment Bill of 2022, which seeks to decriminalise sex work, has been published and is now open for public comment.

The bill proposes the repealing of the Sexual Offences Act (previously Immorality Act), 1957 (Act No. 23 of 1957) and Section 11 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act No. 32 of 2007) to decriminalise the sale and purchase of the adult sexual service.

Justice and Constitutional Development Minister, Ronald Lamola – who addressed media on progress on the bill on Friday – explained that the proposals of the bill are a response to Pillar 3 of government’s National Strategic Plan (NSP) on Gender-Based Violence and Femicide.

“Pillar 3 of the National Strategic Plan… contains a list of key interventions, key activities and indicators. One of the key activities under Pillar 3 is the finalisation of the legislative process to decriminalise sex work.

“This follows the view that the ongoing criminalisation of sex work contributes to GBVF, as it leaves sex workers unprotected by the law, unable to exercise their rights as citizens and open to abuse generally, not least when they approach State facilities for assistance,” Lamola said.

The Minister emphasised that although current legislation and municipal by-laws continue to criminalise the adult practice, this has not “stopped the selling or buying of sex, nor has it been effective”.

“If anything, [criminalisation] has led to higher levels of violence against sex workers. In addition, criminalisation affects predominantly women, with the female sex worker usually being the one who is confronted by law enforcement, but the male client isn’t. The National Prosecuting Authority has also indicated a very low percentage of cases or prosecutions for such transgressions,” he said.

As explained by Lamola, the bill has clauses that seek to:

• Repeal the Sexual Offences Act, 1957 and section 11 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007.
• Deal with the expungement of criminal records of persons convicted of, engaged in, rendering or receiving sexual services from persons 18 years or older.
• Handle the transitional provisions pertaining to criminal proceedings relating to sexual services rendered or received by persons 18 years or older, which were instituted prior to the commencement of this Act.

“It is hoped that decriminalisation will minimise human rights violations against sex workers. It would also mean better access to health care and reproductive health services for sex workers, as well as compliance with health and safety and labour legislation. It would also afford better protection for sex workers, better working conditions and less discrimination and stigma,” Lamola said.

Regulation

Lamola told the briefing that the bill will follow a “two-step approach”, with decriminalisation preceding regulation of the industry.

“It [is] important to deal with decriminalisation first, so as to ensure that sex workers are no longer criminally charged. This will mean greater protection for sex workers. Decriminalisation will destigmatise sex work and enable access to basic services and protection by law enforcement agencies. Existing laws prohibiting children from selling sex and trafficking for sexual purposes remain in force.

“With regards to regulation, municipal by-laws would still be able to provide where solicitation in public spaces may or may not take place, for example, prohibiting the selling of sex in certain areas. This is similar to the prohibition on the location of taverns and shebeens, where there can be restrictions imposed to prohibit trade in residential neighbourhoods, near schools and/or religious buildings,” he explained.

Public comments on the bill can be sent on or before 31 January 2023 to the department’s Chief Directorate: Legislative Development in the following ways:

• Comments via post can be addressed to: The Director-General: Justice and Constitutional Development, Private Bag X 81, Pretoria, 0001. Marked for the attention of Tsietsi Sebelemetja.
• Comments can be e-mailed to Bills1@justice.gov.za.
• They can be faxed to 012 406 4632.

A copy of the bill can be accessed at www.justice.gov.za.