FMF: One leap forward and two steps back on sex work decriminalisation
The Free Market Foundation (FMF) welcomed and embraced, completely, the November 2022 announcement by the Department of Justice that it would finally align the law with the constitutional guarantee on professional freedom, by decriminalising sex work.
The Department’s latest about-face, revealed by the Sex Workers Education and Advocacy Taskforce, to revise the decriminalisation bill to also provide for the “regulation” of sex work, is condemnable.
That the Department and the State Law Adviser believe that a mere decriminalisation bill would not pass constitutional muster, is misguided. The FMF encourages the Department to proceed with the Criminal Law (Sexual Offences and Related Matters) Amendment Bill as it stood in November 2022.
Section 22 of the Constitution provides that all South Africans have “the right to choose their trade, occupation, or profession freely. The practice of a trade, occupation or profession may be regulated by law.”
Regulating the practice of a profession like sex work is discretionary, not compulsory.
As a newly decriminalised profession with a long history of repression, the new legal framework that applies to sex work should be conducive, rather than burdensome, for sex workers to practice their trade. The common law rules that provide for the safety of both workers and clients must be observed and enforced, but ideally no discriminatory dispensation that makes practicing sex work or purchasing such services unduly onerous should be adopted.
A discriminatory dispensation would additionally be inappropriate given the intimate nature of sexual intercourse. South African governments have a long and unfortunate history of making sexual intercourse a matter of legislation, and this should not be repeated in 2023.
If such a dispensation is adopted, it is likely that many sex workers will choose to continue engaging in prostitution in the dangerous underground and unmonitored market. The Department of Justice should ensure the transition of sex work from an unlawful to a lawful profession does not impose undue costs on its participants. A liberal approach would benefit employment, economic growth, and civil liberty in South Africa.
The FMF recommends that the Criminal Law (Sexual Offences and Related Matters) Amendment Bill be adopted in substantively the same form it was announced in 2022.