Decriminalising The Condom: South Africa’s Plans to Combat Gender Based Violence by Legalising Sex Work

In October 2022, the bodies of 6 female sex workers were discovered in a building in Johannesburg. A 21-year-old man was arrested, and this incident sparked a conversation in South Africa about the treatment and rights of sex workers. Protests occurred outside the courtroom, with organisations calling for laws to protect sex workers and the decriminalisation of sex work. Now in 2023, the South African government is heeding this call and has decided to start the process of decriminalising the selling and buying of sex in a bid to reduce gender-based violence against sex workers and to tackle the rate of HIV infections.  Currently, full criminalisation is the law under the Sexual Offences Acct 1957 and section 11 of the Criminal Law (sexual offences and related matters) Amendment Act of 2007. Although South Africa’s post-apartheid constitution is seen as very liberal due to its progressive laws on abortion and being the first African country to legalise same sex marriage, sex work has always been a dividing issue. 

The proposed new legislation only deals with decriminalisation and does not regulate the sex industry; however, the government foresees further legislation to regulate sex work. Following cabinet endorsement, the proposed new legislation was published for public comment in January of this year. Public comments about the bill were sent to the Justice and Constitutional Development department’s Chief Directorate and are now under review. Following the review of public comments, parliament will then have to approve the proposed legislation for it to become law. This process is will not be complete for another few months.  

There is open opposition and lobbying from religious groups, organisations and individuals in South Africa against the proposed legislation. Arguments against the legislation come from the belief that sex-for-reward is wrong, immoral and sinful. Other rationales for opposition stem from the belief that sex workers have no agency or choice, and that sex work is inherently exploitative and degrading. Some argue that the decriminalisation of sex work would create growth in the sex industry and increase human trafficking, rape, and child abuse.  

Justice Minister Ronald Lamola commented on the proposed legislation at a press briefing in December 2022 stating “It is hoped that decriminalization will minimize human rights violations against sex workers. It would also mean better access to health care and… afford better protection for sex workers, better working conditions and less discrimination and stigma.” When sex work is illegal, sex workers are forced to unsafe, unregulated working conditions, with no legal protections as workers, and little access to health care or psychological  support.  

By following other countries such as New Zealand and the Netherlands in decriminalisation, violence against sex workers should decrease as they will be able to work more openly, in well-lit streets or in legal brothels and their own homes, making them less likely to be attacked. Simply making sex work legal is the first step, countries then tend to regulate the industry. This means sex work is then controlled by general labour laws, meaning that sex workers could organizes legally by forming a work union, strengthening the protection of their human and working rights. It would also mean brothel owners and employees would have to abide by health and safety laws, making the buying and selling of sex safer for both worker and client.  Human Rights Watch actively encourages countries to decriminalize and regulate sex work stating that the “Criminalization of adult, consensual and voluntary sex is incompatible with the human right to personal autonomy and privacy”.

In South Africa, sex workers currently suffer blatant human rights violations and high levels of violence, in part due to working in a criminalized environment.  According to advocacy groups there are over 150,000 sex workers in the country with the overwhelming majority being female. These sex workers face physical violence, intimidation, threats, sexual violence and rape. According to The Sex Workers Education and Advocacy Taskforce, a sex worker is many more times likely to be murdered than any other woman in South Africa. South Africa is already a dangerous country to be a woman. It has the highest levels of rape per capita during peacetime than any other country in the world, with a study by the South African times finding that 80% of young men surveyed believed women are responsible for sexual violence. In 2021, police minister Bheki Cele revealed there had been there had been a double-digit increase in murders of women year-on-year between July and September with almost 1,000 women killed. It was also revealed that between July and September 2021, there were 10,000 cases of rape.

Often, this violence against sex workers comes from police officers. The Open Foundation Society found that 80% of sex workers they surveyed said they had been intimidated or harassed by police for being a sex worker or doing sex work. Sex workers they interviewed in South Africa reported experiencing systematic police harassment and extortion, being treated roughly by police, sprayed with pepper spray, beaten, sexually exploited, sexually assaulted, and raped. The fact sex workers are given criminal status makes them reluctant to come forward when crimes are committed against them, especially when the perpetrator is a police officer. This criminal status is perpetuating the cycle of gender based sexual violence going unpunished and the mistrust of those meant to protect. 

Constance Mathe, the coordinator of Asijiki, an organization made up of sex workers, advocates, and human rights defenders commented that by making sex work legal in South Africa, it could lead to better relations with the police.  “Sex workers are being slaughtered like chickens. And no one cares. If sex work is decriminalized, we can at least go to the police and open up a case. At the moment, sex workers themselves are afraid to testify because they don’t have protection from the police.” 

Another motivation of South African government for decriminalizing sex work is the hope it will reduce new HIV infections. The country has the highest cases of HIV infection anywhere in the world. There are an estimated 7.5 million people living with HIV in South Africa, with around 58% of sex workers being HIV positive. Due to the current criminalization of sex work in South Africa, according to sex workers, the police have “criminalized condoms”.  In a 2012 report by the Open Society Foundation, it was found that sex workers in Cape Town were having condoms confiscated from them and the fact they were carrying condoms being used as proof of being a sex worker and thus arrested. Notably, they spoke with a 34-year-old female sex worker, who was raped by officers from the South African Police Service after finding her in possession of condoms. The current criminalization policy puts workers at risk of contracting sexually transmitted infections when it is well known and recommended by international public health agencies that consistent condom use is vital to the effort to reduce the spread of HIV. 

By decriminalizing sex work, sex workers are more likely to feel comfortable carrying and using condoms. It would also reduce the stigma surrounding sex workers testing and getting treatment for HIV as currently, many sex workers are fearful of going to clinics in case their occupation is revealed which prevents them from receiving the health services they need. 

South Africa has taken an important step in protecting the human rights of sex workers and reducing gender based sexual violence by starting the process of decriminalizing selling sex. This momentum must not be lost as the legislation proceeds to the next stage in the coming weeks and it must not stop at simply decriminalization. The proposed legislation does not regulate the sex industry and although the South African government have stated this is something they would look to in the future, regulation is crucial in solidifying the rights of sex workers and further protecting them from violence. 


Cerys Williams


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