Sex for sale: The state as pimp

By Zuki Mqolomba

Debates on adult prostitution have been raging on in South Africa’s public and legal domains since the 1990s. Debates surfaced in 2007 when Labour Court judge Halton Cheadle ruled on the “Kylie” vs Michelle van Zyl case. The debates spiraled once again in light of the foregone 2010 Fifa World Cup, with the former national police commissioner Jackie Selebi propositioning for temporary relaxation of criminal law on adult prostitution. The African National Congress Women’s League (ANCWL) has since come out of the shadows in ardent support of the campaign to decriminalise South Africa’s sex industry. Their support comes in light of the upcoming ANC policy conference and on the back of the regulatory work of the South African Law Reform Commission (SALRC), who have proposed models to address the challenges of adult prostitution in South Africa.

However, debates rage on without a firm grasp of the nuances of South Africa’s sex industry or a set of policy perspectives to ground the debate.

Prostitution as work
There are those who argue that prostitution needs to be legitimised as any other form of employment. Prostitution is compared to wage labour – as the contracting of the sale of sexual services (labour/commodity) in exchange for money. Adult prostitution is seen as an exchange not different to that of a commodity and/or labour in the market place, and as a consensual contract between two individuals of equal power. However, this view negates the fact that in the South African context, most women are directly or indirectly coerced into a life of ‘sex for sale’ from which they cannot escape.

Prostitution as violence and encouraging organised crime
“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.” (Carter and Giobbe, cited by SALC, p60)

This perspective has challenged the view that asserts that adult prostitution is a victimless act of service. It argues that those who enter the trade often come from histories of sexual violence and that the nature of prostitution erodes even the choices made by some to enter the industry out of free will. This distinction between voluntary work and trafficking also remains meaningless to women and children in positions of trafficking as clients do not distinguish between the two. Criminalising the procurement of sex (the demand side) is seen as critical.

Some maintain, however, that adult prostitution remains a vulnerable trade largely as a consequence of criminalisation. Criminalisation exacerbates such appalling conditions by pushing the industry underground and beyond the ‘regulatory eye’ of the state.

Prostitution as exploitation of women
Some feminist perspectives oppose prostitution on the grounds that it degrades and dehumanises women by objectifying them and imposing a commercial value on women’s bodies. The gendered view hinges on the fact that prostitution largely trades in women and young girls, with clients being almost exclusively male. Prostitution is seen as an intrinsic component of gender-based subjugation, reflecting the imbalance of power between women and men in society more generally. Decriminalisation therefore reinforces the gender contradictions that plague society today.

South Africa’s sex industry also reflects the racial, gender and class contradictions prevalent in the country today, with those at the bottom of the ‘food chain’ often being exclusively black, female and from the rural areas.

Some argue the contrary, however: they see prostitution as an assertion of sexual freedom and independence in which women can determine where and how they want to use their bodies free from moral coercion etc.

Prostitution as a health hazard
Prostitution also reports high HIV/Aids incidence rates in prostitution globally, despite reports of increased condom use and best practice for HIV/Aids prevention for the industry. Resident prostitutes have reported extreme difficulty in negotiating condom use, often reported as being responsible for client loss and more frequent non-payment.

Whereas the above raise serious questions about the appropriateness of full decriminalisation, limited access to healthcare also raises questions about the appropriateness of criminalisation. It is an undisputed fact that a criminalised environment makes it impossible to enforce health standards and practices amongst prostitutes due to stigmatisation.

Role of the law
Over and beyond varied political perspectives, a bigger philosophical question emerges about the role of criminal law in regulating morality and social behaviour more generally.

My instinctive response is that no girl-child nor adult women should be forced to trade in sex in a legitimate bid to sustain livelihoods. Secondly, the vagina should not be commodified nor commercialised: the vagina should not be rendered available for sale nor for auction. Secondly, I do not believe that prostitutes should be treated as criminals. Most often than not, prostitutes are victims of structural inequality, and a broken society more generally. They have limited options, particularly in light of high unemployment and gendered poverty. This is particularly true in the South African scenario. However, I am fully aware that an “inappropriate” legal response further exacerbates the conditions of risk and vulnerability of these very same women: a bad response is as good as no response at all. Government needs to weed out sex slavery, as well as put into place meaningful exit programmes that will expand the choices of vulnerable women.

There are no easy answers, only difficult questions.

However, what remains is that the state can no longer turn a blind eye to the shocking realities of the industry. It’s simply not enough to adopt narrow morality without due consideration of the appropriateness of legal and enforcement response(s) in addressing structural risks and vulnerability. Nor does it suffice to adopt blind neo-liberalism for its own sake without duly considering the social and personal risk(s) “inherent” in the trade etc. Any state solution will have to be a considered one.

In this instance, it will need to consider and be fully aware of the varied ideological thrusts that inform the debate, as well as the contradictions between theory and practice. Decision-makers are obliged to observe the intricate nuances that characterise the trade, and ask both theoretical as well as tactical questions such as:

What kind of society do we want to build? What are the imperatives of our social transformation project?
How do you find alignment between competing social ideals, whilst respecting the plurality of South African society?
What is the best response bearing in mind prevailing circumstances?
How do we frame our response in ways that unite rather than polarise, and mobilise society towards a treasured unity premised on a shared vision for the future?

Zuki Mqolomba is a scholar activist. She has two Masters degrees, from the University of Cape Town and the University of Sussex respectively. She is a former student leader. She has a heart for society’s vulnerable poor.