Mail & Guardian (Johannesburg) - September 01, 1995
Rehana Rossouw

South Africa's growing sex industry offers consumers sex in books and magazines, on pornographic videos and over sex chat lines, but the law still prohibits them from buying the real thing.

This anomaly should be removed from the statute books, according to researchers at the Centre for Applied Legal Studies (Cals) at the University of the Witwatersrand, who have drafted a Bill on Prostitution.

Asked by the National Department of Health to look at possible strategies to regulate prostitution, Cals researchers Andrew Murphy and Tracey Cohen researched the industry and concluded that the Sexual Offences Act, which prohibits intercourse for reward, was an "archaic and moralistic approach that is inconsistent with social realities".

"We have to move away from the moral majority perspective informing legislation. It is not the concern of the law to legislate morality. It is, however, the concern of the law to provide necessary, reasonable and justifiable measures that serve and protect the interests of society," said Murphy.

The draft Bill envisages "decriminalisation with controls" -- the legal recognition of prostitution in brothels with government regulation of some aspects of the trade.

Murphy said the criminalisation of prostitution was expensive to police and unfair because only sex workers were prosecuted, not their clients.

"Criminalisation also contributes significantly to the exploitation of prostitutes, enhancing the opportunities for pimps to exploit their vulnerability," he said.

"It also falls foul of the constitution, which guarantees every person the right to equality before the law and to equal protection of the law."

However, the draft Bill retains instances in which prostitution would still suffer criminal sanction: in public places (soliciting on pavements), when prostitutes are younger than 18 years, receiving the proceeds of child prostitution and forcing women into

"Although the age of consent is 16, we believe prositution should only be allowed if a person is 18 years old," Murphy said. "One only has to look at Thailand, where children are exploited in a most horrific way, to see the benefits of such a

The most controversial clauses in the draft bill relate to the health of prostitutes and their clients. It allows for criminal sanctions to be imposed for unsafe sex practices, where prostitutes fail to use condoms and owners of brothels fail to take steps to ensure that their staff and clients use condoms.

Brothel owners who employ prostitutes infected with sexually transmitted diseases, including HIV, should also be prosecuted, the draft Bill suggests. They should take "reasonable steps" to ensure their staff are STD-free by ensuring they undergo regular medical examinations.

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