1. Commission’s Task
The Commission's task is to develop, improve and modernize the law in South Africa. Project 107 focuses specifically on sexual offences and part of this project focuses on adult prostitution.
2. Explain the law reform process on adult prostitution?
The Commission published and released the Discussion Paper on Sexual Offences: Adult Prostitution (Discussion Paper 1/2009) for public comment on the 6th May 2009. The aim of the discussion paper was to elicit comments which will be used to assist the Commission in preparing a report and draft legislation.
The primary aim of this investigation is to review the fragmented legislative framework which currently regulates adult prostitution. A secondary aim 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.
The release of the Discussion Paper on Sexual Offences: Adult Prostitution will be followed by a Report. We plan to have the Report finalised by the end of February 2011. The Report will contain the final recommendations of the Commission and will be accompanied by draft legislative proposals pertaining to adult prostitution. The Report will, once approved by the Commission, be handed to the Minister for Justice and Constitutional Development for consideration.
3. Explain the different options you have already identified for public debate?
To start off it is important to say what the current law is and to explain the parameters of the investigation. Firstly under South African legislation voluntary selling of adult prostitution, buying of voluntary adult sex as well as all prostitution related acts are criminal offences.
Secondly, all of the proposed options presuppose the criminalisation of under-aged and coerced prostitution and trafficking of people for the purpose of prostitution. The Commission is of the view that criminalisation of coerced adult prostitution must be included in the option which is ultimately recommended in the report.
The Commission poses four alternative legal options that might be employed in South Africa.
Under the total criminalisation option the conduct of all persons involved in adult prostitution, including the prostitute, the client and any third parties involved is criminalised (the existing position in South Africa).
The partial criminalisation option criminalises the actions of pimps, brothel-keepers, traffickers and sometimes clients. Prostitutes are not criminalised because they are considered to be victims.
The regulation option also known as legalization seeks to control prostitution by means of a regulatory scheme such as licensing of brothels, registration of prostitution or identification of ‘red light zones’ where prostitutes may work. Under this option, prostitution is legal but regulated. Prostitution and related activities falling outside of the regulated scheme are criminalised.
The non criminalisation option involves an absence of criminal sanction. It is often combined with the acceptance of prostitution as a legitimate form of work – but the application of labour law is not an automatic consequence of non-criminalisation. This is a policy choice.
4. Briefly explain why you have no view on the World Cup?
This investigation was not brought about for the purposes of the World Cup and is not aimed at short term solutions for South Africa. The Commission's mandate in respect of Project 107 is not linked to the 2010 FIFA World Cup in any way, and that is why the Commission has not and will not be making any recommendations in this regard.
The broader Sexual Offences investigation (Project 107), which started in 1998 has a broad mandate. It seeks to effect a comprehensive overhaul of the criminal justice system in relation to all sexual offences, including adult prostitution by evaluating existing statutory and common law crimes and to make non-legislative recommendations for the reform of the processes employed by the criminal justice system in its response to sexual violence to ensure that the proposed legislative changes are implementable.
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