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, which thrives in all South African cities and towns despite being proscribed.
A secondary aim is to review the fragmented legislative framework which currently regulates adult prostitution and enhance alignment with international human rights obligations for the country.
Under South African legislation voluntary selling and buying of adult sex as well as all related acts are currently all criminal offences.
The Discussion Paper has three parts.
Firstly, the SALRC discusses the social and legal context of prostitution including a range of legal, social and economic factors that are relevant to the question.
Next the Commission provides an extensive comparative analysis to look at how other countries have addressed prostitution in their laws.
Thirdly, the Commission makes general proposals in preparation for reforming the law on prostitution and proposes four alternative legal modelsthat might be employed in South Africa. This includes:
· Total criminalisation of adult prostitution (status quo);
· Partial criminalisation of some forms of adult prostitution and prostitution related acts;
· De-criminalisation of adult prostitution; or the
· Regulation of adult prostitution and prostitution related acts.
The SALRC highlights that all proposals presuppose “the criminalisation of under-aged as well as coerced prostitution and trafficking of people for the purpose of prostitution”.
To give effect to these general proposals the commission suggests Parliament should repeal the last vestiges of the 1957 Immorality Act (now the Sexual Offences Act) that once outlawed interracial relationships and which is still premised on the idea that any sexual intercourse outside of marriage is unlawful.
The SALRC also urges the repeal of section 11 of the Sexual Offences Amendment Act of 2007 and the enactment a new “Adult Prostitution Reform Act” that “may include or exclude provisions of the Sexual Offences and Sexual Offences Amendment Acts” and that “develops new terms and definitions for archaic terms” if required.
The discussion paper is to be followed by a report on adult prostitution. The report on adult prostitution will contain the final recommendations of the commission and will be accompanied by legislative proposals pertaining to adult prostitution.
The report and the Bill will, once approved by the SALRC Board be handed to the Minister for Justice and Constitutional Development for consideration.
Comments on the discussion paper must reach Dellene Clark at [email protected] by no later than June 30.
Pic: Romanian prostitutes in a German brothel, March 2009. Reuters.