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The primary aim of the Discussion Paper is to consider the need for law reform in relation to adult prostitution and to identify alternative policy and legislative responses that might regulate, prevent, deter or reduce prostitution. A secondary aim is to review the fragmented legislative framework which currently regulates adult prostitution. Under South African legislation, voluntary selling of adult prostitution, buying of voluntary adult sex as well as all prostitution related acts are criminal offences.
In this Discussion Paper the Commission defines prostitution as 'the exchange of any financial or other reward, favour or compensation for the purpose of engaging in a sexual act'. As there is a marked distinction between the conditions, environment and demographic profile of prostitutes, the Commission makes a further distinction between indoor and outdoor prostitution.
The Discussion Paper is divided into three parts.
First, the Commission analyses the social and legal context of prostitution by referring to a range of legal, social and economic factors relevant to the question of whether reform of the law relating to adult prostitution is needed. The Commission explores the impact of the current law on prostitutes and also examines enforcement of the law. The socio-economic determinants of prostitution suggest that prostitution is driven by a complex intersection of social and economic factors in which poverty and inequality are key drivers. The Commission further examines what motivates the supply and the demand for prostitution and considers the links between prostitution and crime, prostitution and drugs and between prostitution and HIV.
The Commission raises the question of what is an appropriate response to prostitution in the context of a Constitution committed to advancing human rights and social justice. It also explores international law in relation to prostitution and suggests that the current law might fail to comply with South Africa's international obligations.
Second, the Commission engages in an extensive comparative analysis as to how other countries have addressed prostitution in their laws.
Third, the Commission makes general proposals in preparation of reforming the law on prostitution.
Regulation of adult prostitution and prostitution related acts.
All of the proposed options presuppose the criminalisation of under-aged and coerced prostitution and trafficking of people for the purpose of prostitution. The criminalisation of coerced adult prostitution must be included in the option which is ultimately recommended in the report.
The Commission requests the public and other role players to comment on the proposals in the Discussion Paper or to propose alternative models to assist the Commission to identify an appropriate legislative model for South Africa.
In Chapter 8 of the Discussion Paper the Commission makes general proposals in preparation of reforming the law on prostitution.
A new Adult Prostitution Reform Act which may include or exclude provisions of the Sexual Offences and Sexual Offences Amendment Acts See the proposals on worksheets 2-5.
Do you agree with the general proposals If not, please motivate your disagreement?
all prostitution related acts.
How must prostitution (currently 'unlawful carnal intercourse') be defined in the new Adult Prostitution Act?
reduce the demand for prostitution?
reduce harm and vulnerability to abuse and exploitation of prostitutes?
assist prostitutes to enforce their rights to equality and access to health?
avoid the stigmatisation and discrimination of prostitutes?
address concerns regarding prostitution and crime?
address concerns regarding public health and HIV?
assist to create an environment for prostitutes to exit prostitution?
How must the issue of criminal record for prostitution when leaving prostitution and seeking alternative employment be addressed?
In one, activities related to prostitution such as soliciting, brothel-keeping and living off the earnings of prostitution are prohibited, while prostitutes themselves are free from criminal sanction.
Another version criminalises persons who solicit or facilitate the performance of sexual services of prostitutes i.e.
criminalise some or all acts related to unlawful prostitution, the Commission proposes a new Adult Prostitution Act to criminalise specific acts related to unlawful prostitution e.g.
procurement of unlawful prostitution.
living on earnings of unlawful prostitution.
assistance for purposes of unlawful prostitution.
enticing, soliciting or importuning unlawful prostitution.
How must indoor prostitution be defined?
How must outdoor prostitution be defined?
Engaging outdoor sexual intercourse of persons 18 years and over for reward outside a brothel?
Having outdoor sexual intercourse for reward with persons 18 years and over?
What would the purposes of the new law?
South Africa's international obligations?
How must the issue of criminal record for prostitution (under the current dispensation) when leaving prostitution and seeking alternative employment be addressed?
The focus of the non-criminalisation model is on self-regulation of prostitutes and prostitution and prostitution related acts are not criminalised.
Prostitutes working for an employer in a legal prostitution venue are employees under a legal service contract and the general labour-, tax-, unemployment insurance law apply.
Prostitutes working as independent contractors do not fall in the scope of laws such as the Labour Relations Act of 1995, the Employment Equity Act of 1998, the Basic Conditions of Employment Act of 1997, the Occupational Health and Safety Act of 1993 and the Unemployment Insurance Act of 2001.
The law of contract applies to any agreements between prostitutes and clients to buy and sell sexual services.
No action is criminal purely because it took place in a prostitution context.
Prostitutes and prostitute organisations are involved in systems and processes to design measures to protect the general welfare and human rights of prostitutes.
Other stakeholders in prostitution such as management, clients and the communities where prostitutes work are involved in systems and processes to develop measures regarding advertising, zoning, ownership of property and trade unions.
develop exit strategies for prostitutes who want to leave prostitution.
Systems and procedures for regular consultation?
A prostitution supervisory body, representing the key role players in prostitution, to review the prostitution regime and make recommendations to government on a regular basis?
Protecting the rights of prostitutes to at any time, refuse to provide or to continue to provide, a commercial sexual service to any other person?
Protecting the right of the other party to recover contractual damages for the provision of sexual services that is not performed?
Exclusion of persons from running a prostitution business if they are convicted offenders of specific offences?
Amnesty to prostitutes with a criminal record for prostitution and prostitution related offences who wish to exit prostitution?
Safe sex practices in prostitution?
Enjoyment of human rights by prostitutes and their clients?
Should the matters listed in question 1 be dealt with in this law or elsewhere?
What are you hoping to achieve with this option?
To what extent can this aim be achieved through the law?
Are there further matters that need to be addressed in this law?
legal but strictly regulated outdoor prostitution.
outdoor prostitution is restricted to prostitution zones1 the Commission proposes a new Adult Prostitution Reform Act to regulate specific aspects of prostitution and restrict outdoor prostitution to prostitution zones.
Which aspects of prostitution should be regulated?
selling and buying of unlawful prostitution YES/N?
procuring for the purposes of buying unlawful prostitution YES/N?
living on earnings of unlawful prostitution YES/N?
detention for purposes of unlawful prostitution YES/N?
non-compliance with the regulatory system YES/N?
advertising of prostitution?
implementation by the police or similar state law enforcement agencies?
police access to venues where prostitution takes place?
legal mechanisms and procedures for the closing down of illegal venues?
Must regulatory powers be housed within administrative authorities or medical authorities?
Must the regulatory functions be at national, provincial or local level?
Will provincial administrations and/or local authorities have some discretion e.g. may local authorities choose to criminalise prostitution?
1 The Commission proposes this version because it allows a fuller description of the possibilities under this option.