Is the sale of sexual favours work?

Unfortunately, news of the latest demand to change legislation in South Africa regarding what is generally called the world’s oldest profession, was swamped in the media by the crises emerging in the mining, metals and engineering industries. But the debate continues and the two human rights groups calling for change are at loggerheads about what change is necessary.

Embrace Dignity (ED), wants partial criminalisation while the Asijiki coalition wants all aspects of the sex industry decriminalised. Asijiki includes the Sex Workers Education and Advocacy Taskforce (SWEAT), Sonke Gender Justice and the Women’s Legal Centre.

In line with a policy initially adopted in Sweden, ED wants it to remain a crime to buy or benefit financially from the sale of sex. Asijiki wants sex workers to be treated in the same way as any other workers with the same rights and obligations as workers in any other business. However, both groups have common ground in that they oppose human trafficking, child prostitution and other such abuses.

But while ED agrees that removing criminal sanctions from the sellers of sex will mean “acceptance of prostitution as a legitimate form of work” the group considers that “prostituted persons” are victims. ED also tends to equate “pimps and brothel keepers” with traffickers.

Asijiki disputes this and points to the fact that criminalisation drives sex work underground and therefore encourages abuses; that sex workers should be treated in the same way as any other workers.

However, both groups also acknowledge that the majority of those involved in prostitution are women in a “patriachal society” where violence against women is rife and that the law, as it stands, does not work. They also agree with findings that policemen are responsible for nearly half the abuse and assault cases reported by women in the South African sex trade.

As matters now stand, the law in South Africa makes the sale and purchase of sex a criminal offence for sellers, buyers and “any third person”. Such third persons are usually people who manage sex workers and who, therefore, “live off immoral earnings”.

The point, say both ED and Asijiki, is to provide the best possible protection to those who sell sexual favours. How best to do this is the argument.

For me, there is one simple question: is the sale of sexual favours work? The dictionary definition of work is “activity involving mental or physical effort done in order to achieve a purpose or result”.

But such a broad definition means that even housebreakers and robbers are workers. Yet no sane person would call for their activities to be regarded as anything other than criminal. This is because their “work” victimises and damages others. Levels of theft and assault are regarded as crimes in all societies.

However, in our modern, industrial society work usually means activity, not involving theft or violence, with the purpose of earning an income in order to survive. This means receiving wages in regular employment or working on a freelance or entrepreneurial basis. As the Bill of Rights states: “Every citizen has the right to choose their trade, occupation or profession freely…regulated by law.”

In our grossly unfair society of mass unemployment, many citizens have little choice in how they can sell their labour in order to survive. But, although there are many abuses in the workplace, these are rightly criminalised because, as the Bill of Rights also notes: “Everyone has the right to fair labour practices.”

So if the sale of sexual favours is regarded as work, the sellers are workers and, as such, should be protected not only by the Constitution, but by the labour laws. This position was summed up by a slogan displayed by one sex worker at the Women’s Month launch of the Asijiki coalition: My body is my business — sex work pays my bills.

Views expressed are not necessarily GroundUp’s.