08 Nov 2006: ISS Today: Gender Equality and the Sexual Offences Bill in South Africa

08 November 2006: Gender Equality and the Sexual Offences Bill in South Africa

 

The revised Sexual Offences Bill is likely to be passed by parliament in the near future. It has been the subject of intense media focus and advocacy by non-governmental organisations who have an interest in women’s rights. It is commendable that the Bill has broadened the definition of rape and addresses the need for the state to provide support to victims of sexual offences. Yet, the Bill goes much further by criminalising transactional sex. This article considers the implications of this for women.

 

Addressing crime, and particularly violent, sexual and gender-specific crime is, and should be, one of the primary concerns of policy makers in South Africa. There are probably as many theories about why South Africa is in the grip of an extraordinarily violent expression of male sexual power, as there are incidents of rape in a day - and as many theories about what should be done to solve the problem, as there are policy-makers. However, in our combined efforts to prevent sexual violence and sexual exploitation we should be wary of reactive policies that may, in their effort to assist women or balance the gender equation, have the opposite effect.

 

The Sexual Offences Bill seeks to address the shortcomings of past legislation regarding rape and sexual abuse. Indeed, the most recent draft is commendable for the fact that it allows for the prosecution of perpetrators of rape where the victim is male, or where anal penetration takes place. Previously the law did not view these violations as rape. The focus of NGO advocacy has been on these issues of definition and on support for victims of sexual violation. In the process women have become viewed in the dominant discourse as victims that need protection. While women who are victims of sexual abuse certainly should qualify for support and care by the state, it is ironic that in the attempt to protect women from sexual violation the Bill, perhaps unintentionally, also removes the right of women (and men) to chose how sexual transactions can take place between consenting adults.

 

There is a multiplicity of views on the morality of sexual relations between adults. Indeed, the majority of South Africans appear to hold strong views on what constitute ‘normal’ or ‘acceptable’ sexual relations. Yet, few will deny that transactional sex – whether formal or informal, is an enduring feature of any society. Patriarchy has ensured that women’s power is restricted, no more so in business than in the bedroom. Yet sex is one of the most powerful tools women have in heterosexual relationships. Whether it is a trade in a marriage between a wife and her husband or a trade outside of marriage, research shows that many women use sex to survive. Perhaps it is the minority of women that formally engage in sex solely for financial gain. A far larger proportion of women engage in survivalist sex, exchanging sex for school fees, or a place to stay. As a society we may frown upon transactional sex, yet to criminalise this behaviour is to disempower women. This is what clause 10A of the Bill does. It says that any sexual exchange between adults (over the age of 18) for financial or other gain is unlawful.

 

I am certain that the intention of the Parliamentary Portfolio Committee on Justice and Constitutional Development was to accept that selling sex (prostitution) should remain a crime as it has been in the past. It was also the intention of the Committee to balance the equation, so that women who sell sex are not the only ones guilty of an offence, but also the men who purchase it. Their starting point is iterated in the preamble of the Bill where it is stated that “women and children, being particularly vulnerable, are more likely to become victims of sexual offences, including adult prostitution.” In other words the Bill establishes in law the view that woman who choose to sell sex are victims, and should be considered in the same category as children. This is to simplify the reality to an unacceptable degree. Women are not children, and should not be viewed in law as being in the same category as children. In addition, while we may wish we lived in a world where women would not need to choose to sell sex to earn a living, the truth is that for many women who are unable to find employment, it may be the best alternative to put food on the table and clothe their children. Their decision to take a proactive step to ensuring their survival is not equivalent to them being a victim of the men who purchase their services.

 

Sex workers themselves have responded to the clause with concern, saying that it is likely to cause them both to lose income and to have to work under more dangerous circumstances. National and international organisations representing the rights of sex workers have spoken out against the clause. They draw on the experience of other countries that have chosen to criminalise the clients of sex workers and argue that such legislation “is counterproductive and inhumane, primarily because it increases the vulnerability of sex workers... Sex workers are going to continue to work but they will have to spend more time shielding their clients from the police and in driving to deserted destinations. This means they will earn less, and also once further removed from the public eye, they will be open to abuse.”  Surely this is not the intention of the Committee? Surely our past provides sufficient lessons about how forcing activities underground is no solution to social problems?

 

In the past the apartheid government reacted to opposition by banning it. It is no step forward for law makers now to ban activities that are the result of consensual undertakings between adults. Indeed, I would argue that this is not the place of the state. It is the state’s role to protect vulnerable people. But women are not children. Women make choices and decisions to ensure their survival that may be unpalatable, but to restrict the options that women have to survive is not to act in their best interests.

 

Chandre Gould, Crime and Justice Programme, ISS Tshwane (Pretoria)