SAY 'YES' TO HUMAN DIGNITY AND
‘NO’ TO SEXUAL EXPLOITATION
Dear CFJ Supporter,
The Department of Justice and Constitutional Development is set to reform South African prostitution law. Currently, adult prostitution, i.e. the selling or buying of sexual services and all prostitution-related activities, is criminalised in its entirety. The legal status of prostitution has far-reaching implications – not only for prostituted persons but for society in general. South Africans are being called upon to make an informed decision about the legal status of prostitution should be.
But first, we need to make sense of the prostitution law reform debate.
Is There A Need For Law Reform?
Law reform will only be necessary – and justified – IF the fact of criminalising prostitution:
Is unconstitutional, and/or
There are policy considerations that militate so strongly in favour of legal reform, that a change in the law is necessary.
If neither of these two conditions is met, law reform is unnecessary. Read on to find out if law reform is actually necessary.
Constitutional perspective: Is fully criminalising the system of prostitution constitutional?
In the seminal judgement of State v Jordan (2002), the Constitutional Court considered and found that the full criminalisation of prostitution, both the supply and demand side, is constitutional.
In answering the question whether the full criminalisation of prostitution violates the human dignity of prostitutes, South Africa’s highest court said: (at para  of the judgment)
“Our Constitution values human dignity which inheres in various aspects of what it means to be a human being. One of these aspects is the fundamental dignity of the human body which is not simply organic. Neither is it something to be commodified.”
“The very nature of prostitution is the commodification of one’s body.”
“[T]he dignity of prostitutes is diminished not by [the law’s criminalising of prostitutes’ actions, i.e. selling him/herself for sex] but by their engaging in commercial sex work. The very character of the work they undertake devalues the respect that the Constitution regards as inherent in the human body.”
“The fact that a client pays for sexual services does not afford the client unlimited license to infringe the dignity of the prostitute.”
Public policy perspective: What public policy considerations would justify decriminalising prostitution?
From a public policy perspective, prostitution should only be decriminalised IF the following conditions are present:
IF the harms and the socio-economic marginalisation of prostitution flow either solely or mainly from the fact that prostitution is fully criminalised, as opposed to from the nature/practice of prostitution itself and its underlying causes; and
IF the decriminalisation of prostitution, whether fully or partially, would result in achieving the policy objectives of reducing or negating the harms of prostitution, including improving the quality of life for prostituted persons.
If the South African state decriminalises prostitution fully, it will be doing so in spite of the fact that nothing beneficial will be achieved for either prostituted persons or society. What is more, it would also mean that our law and policy makers, inexplicably, are disregarding the authoritative recommendations of the Report on Adult Prostitution and the large body of research evidence showing that full decriminalisation will only exacerbate the already detrimental impact of the system of prostitution.
From a human rights perspective, the position cannot be more clear: criminalising prostitution is constitutional. In fact, any violation of human dignity suffered by prostituted persons is not caused by the law, but by prostitution itself.