The decriminalisation of prostitution in South Africa: towards a legal framework

Abstract

This mini-thesis seeks to provide a substantiation for the need for a new legal framework for South Africa in order to address prostitution. It will argue that the current legal framework has failed in its desired aims and in addressing prostitution effectively. It will begin by explaining the connection between prostitution and human rights in order to establish the basis from which to proceed in an attempt to legislatively address prostitution. It maintains that whatever legislative framework is adopted, it needs to be entrenched in a human rights approach to prostitution. The international and domestic legal framework that currently governs prostitution will be unpacked. In terms of the international legal framework, this mini-thesis establishes that the international legal framework proceeds from the presumption for the need for total criminalisation of prostitution to the presumption of choice of legislative answer to prostitution. The legislative framework is entrenched in the acceptance that all forms of forced prostitution should be eradicated. Moreover, it finds that the current domestic legal framework, which criminalises prostitution, is insufficient in meeting its desired aims. This mini-thesis critically analyses the underlying reasons for prostitution in South Africa and discovers that it is influenced by a myriad of interrelated factors. The current level of poverty and the prevailing socio-economic paradigm in South Africa have contributed to its complex nature. The demand for prostitution acts as a catalyst for both the further exploitation of prostitutes and women, while making them vulnerable to sexually transmitted diseases. I establish that criminalisation alone is not sufficient to address prostitution, especially given the HIV/AIDS epidemic. The current judicial discourse on prostitution is critically analysed and it is found that it entrenches stereotypical notions of gender and sexual roles in South Africa. Even in the Constitutional Court, these notions form part of judicial decision-making. As such, judicial decisions have highlighted the need for a human rights approach to prostitution that is victim -centred.