FOR SA’s Comments on the “Prostitution Bill”

by Liesl Pretorius
23 January 2023

The Criminal Law (Sexual Offences and Related Matters) Amendment Bill was published for public comment on 9 December 2022. The Bill is known as the “Prostitution Bill” and proposes to amend South African law to fully decriminalise the system of prostitution.  Many religious leaders and other organisations have expressed serious concern about the implications of this action, but the time to make comments is short since the deadline is Tuesday, 31 January 2023. 

The “Prostitution Bill” does not specifically impact religious freedom rights, so FOR SA will not be making submissions. However, we are well aware that many members of faith communities are likely to hold strong views on prostitution (and how the law should respond to it).  We, therefore, decided to highlight several considerations which members of the religious sector may find relevant and to help them to comment on this Bill.

What will happen if the Bill is passed in its current form?

  • The selling and buying of sexual services by adults will become legal activities.
  • Related activities, such as soliciting and advertising sexual services, pimping and brothel keeping, and living from the earnings of prostitution will also become legal.
  • Those people who have criminal records for being involved in prostitution and its related activities will have these records expunged.
  • All pending prostitution cases will be withdrawn.

Here are some of the concerns that this may raise:

  • Most prostituted persons are socio-economically marginalised women, meaning that the system of prostitution sexually exploits vulnerable women. Prostitution is therefore a particularly heinous form of Gender Based Violence (“GBV”) and for this reason, for the Government to propose to legalise prostitution (or any form of sexual exploitation), is totally irreconcilable with its commitment to end GBV.
  • In the landmark case of State versus Jordan, the Constitutional Court confirmed that criminalising prostitution is not unconstitutional and that the act of prostitution infringes the dignity of prostituted persons.
  • Existing laws should only be changed on the basis of sound public policy reasons (i.e. those backed by the evidence of scientific research and prostituted persons’ lived experiences). FOR SA notes with concern that a growing body of scientific research shows that the proposed “full decriminalisation” amplifies the ills of prostitution.[1]
  • The Department of Justice (“DoJ”) – who introduced this Bill – has ignored the findings and recommendations of the South African Law Reform Commission, which produced a 485-page “Report on Adult Prostitution” in 2015. To quote:

“The Commission has concluded that changing the legislative framework could create an extremely dangerous cultural shift juxtaposed against the high numbers of sexual crimes already committed against women. Women would be considered even more expendable than at present.”

  • There are also alternatives to the full decriminalisation of prostitution. The so-called “Nordic” or “Equality Model” has been implemented internationally and it only decriminalises the actions of people who are being prostituted as it sees them as victims of a system of sexual exploitation – i.e. that their participation in prostitution is not actually a real choice.

FOR SA urges the religious sector to participate meaningfully in the prostitution law reform process. Constructively raising religious views and concerns in the public square on matters of public importance is part and parcel of fully expressing and enjoying fundamental religious freedom rights.  

Links to assist in the public participation process:

Deadline:  Tuesday, 31 January 2023

[1] See for example: NCOSE “Violence in Prostitution”; NCOSE “10 Reasons to Oppose Full Decriminalization of Prostitution”; NCOSE “Why Sex Buyers must be Stopped and How to do It”; CASE-SA “Prostitution Law Reform”; and CASE-SA “We Need to make Sense of the Transactional Sex Debate”.  

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Liesl Pretorius

Liesl Pretorius

Liesl Pretorius is an attorney of the High Court of South Africa and obtained her BA and LLB degrees from the University of Stellenbosch. See her full bio here.

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