Discourses around the issue of prostitution and human trafficking, and the intersection of these issues, are laced with contention. Notwithstanding this being representative of the broader international debate, South Africa’s chapter is particularly vociferous given the current context and tension between preservationist and abolitionist agendas (see: Raphael, 2017) around the decriminalisation of the sex trade in South Africa. These two fundamental philosophical positions on the issue of prostitution are respectively grounded in a variety of contending arguments, yet both claim to hold in high regard the best interests of the person in prostitution. Those with a preservationist orientation promote the ‘sex work’ agenda and maintain that it can be a legitimate choice of employment where the decriminalisation of prostitution enhances and supports the rights of women (Bonthuys, 2012: 13; Fick, 2006: 17; Gould, 2006: 21). Preservationists have also criticised those of abolitionist orientation of fueling moral
panic and supporting an anti-prostitution agenda (Gould, 2010b: 32). On the other hand, the abolitionist stance considers even consensual prostitution as exploitative and a human rights’ violation where a context, created by patriarchy, muddles the notion of choice or agency (De Das Kropiwnicki, 2012: 236; Kruger & Oosthuizen, 2011: 55). Those of abolitionist orientation are also vocal about the day-to-day realities of human trafficking, are well represented on human trafficking task teams in South Africa and, as mentioned earlier, have been implicated in making unsubstantiated claims about the scope, nature and extent of human trafficking in South Africa.
Prostitution or ‘sex work’ is, at present, a crime in the country (Albertyn, 2016) but the difficulty in policing the issue has led to its unofficial decriminalisation (Bird & Donaldson, 2009: 44). Gould (2011: 531) describes the indoor sex industry in South Africa as being made up of three kinds of brothels. These are short-term establishments where rooms can be rented by the hour by street-based persons in prostitution. In-house persons in prostitution also work from these establishments. Secondly, there are brothels that advertise in the public domain as ‘escort agencies’ or ‘massage parlours’ and that employ persons in prostitution who meet their clients in a bar area where they gather together. The third kind of agency is found in residential areas and consists of houses that are rented by a brothel owner, who frequently happens to be a woman. These establishments are difficult to identify from the street as they do not advertise with signage on the outside of the house and clients are serviced by the women in the bedrooms of the house (Gould, 2011: 531).
With significant efforts on the go to decriminalise prostitution in South Africa, the eyes of the globe are pinned on the country’s imminent decision that may make the Republic the next Germany or Holland (Crowcroft, 2017; Diu, 2013). The promotion of a glamorous sex trade has many wondering (Kishan, 2016), particularly following claims that the balance is at present seemingly weighted towards decriminalisation (Albertyn, 2016). The debate surrounding prostitution is by its very nature complex and contentious (South African Law Reform Commission, 2017; Van der Watt, 2014b: 10; South African Law Reform Commission, 2009: 2; Luiz & Roets, 2000: 21) with no simple solution (Kenny, 2015). A number of legal options for prostitution law in South Africa were presented by the Law Reform Commission (South African Law Reform Commission, 2009; Bonthuys, 2012: 25). These include total criminalisation,
representative of the current legal position; partial criminalisation, which is in line with the Swedish model where clients, pimps and brothel owners are criminalised; non- criminalisation, where sex work is legal; and regulation, where sex work is legal and specific aspects related to health and employment conditions are regulated. Key themes in the current South African debate revolve around the issue of sex workers’ equitable access to health care (Pretorius, 2016), health risks and concerns (Doctors for Life, 2016; Bird & Donaldson, 2009: 45), abuse and violence towards persons in prostitution (Furlong, 2016; Fick, 2006). The global discussion is underpinned by a number of themes that contain conflicting views between preservationist and abolitionist stances, which are expressed through a distinctive and loaded lexicon (CATW, 2014; Sonke Gender Justice, 2014).
In a deconstruction of the movement to decriminalise sex work in the South African context, Wojcicki (2003: 84) highlights that most of those in favour of decriminalisation during the apartheid era were white, as black South Africans had neither the power nor adequate access to media platforms to make their positions known. With the ending of apartheid, the dynamics of the prostitution debate changed in several ways. First, the advantageous shift of law enforcement from public order policing to the policing of serious and violent crimes became a fundamental part of the debate. Second, the movement to decriminalise sex work in the post-apartheid period had now incorporated the human rights’ lexicon and language that was enshrined in South Africa’s Constitution. This became evident in conversations and writings about ‘sex work’ and ‘sex workers’. Third, the voice of black South Africans emerged and a counter-discourse came to the fore. This discourse suggested that prostitution and the decriminalisation of prostitution were both immoral and “un-African” and the decriminalisation process was halted in 1998 due to this view (Wojcicki, 2003: 85).
The contested interrelationship between human trafficking and prostitution adds an additional layer of intricacy to this debate. Raphael (2017: 16) rightfully argues that research on human trafficking for sexual exploitation is difficult enough, but, when positioned in the aforementioned context, the challenges are compounded. It remains important, though, that prostitution and human trafficking for the purpose of sexual exploitation not be equated (Huisman & Kleemans, 2014: 216; Zheng, 2010; Cameron, 2008: 80). When contemplating the operation of the sex industry and its influence on
human trafficking, Cameron (2008: 80) advises that a broad perspective on the issue is not lost. Outshoorn (2015) points to deep divisions within feminism about prostitution and human trafficking and posits that different feminist groups have conflicting views on such basic issues as the definition and nature of prostitution, and its relationship to trafficking (Outshoorn, 2015: 12). A fundamental weakness in the sex worker’s rights framework (the preservationist perspective) that is pointed out by Outshoorn (2005: 146) is that, in practice, it is often difficult to distinguish between forced prostitution and voluntary sex work. An example might be where some adult women who entered prostitution as minors characterise it as their choice as adults. Or, other income- generating options may be so constrained as not to present a meaningful alternative (Outshoorn, 2015: 13). Abolitionists claim that the legalisation of prostitution will increase the supply of and demand for such services. The argument that sex trafficking will increase when prostitution is legalised also originates from this philosophy. Juxtaposed with this view, preservationists often claim that, by legalising prostitution, the position of persons in prostitution and the transparency of the prostitution sector will improve, with a concomitant reduction and even eradication of sex trafficking (Huisman & Kleemans, 2014: 216).
Gould (2014: 199) draws conclusions from two South African studies (Gould & Fick, 2008, and Richter & Delva, 2010) that reflect a gamut of working experiences for those involved in prostitution that question the central contentions within the abolitionist movement. With reference to the South African context, Gould (2014: 199) continues by stating that there is “little evidence to substantiate” the widely held notions that:
“It is common for deception and force to be used in recruitment into prostitution;
There are many child prostitutes;
Trafficking results from clients’ demands for young and foreign prostitutes;
Rural women and girls and those from poor backgrounds are attractive targets for
traffickers;
The sex industry is dominated by organised criminal groups;
Sex workers are typically controlled through drugs and addiction; and
Foreign sex workers are trafficked in significant numbers into the South African sex
In her paper entitled 'Sex Trafficking and Prostitution in South Africa', Gould’s (2014: 200) concluding assertion that sex trafficking appears to have been created as a social problem in South Africa remains, as mentioned in Section 1.2, quite mindboggling and in stark contrast to the lived experience of practitioners and stakeholders that participated in this research. In a comprehensive and meticulous investigation into the methodology, interpretation of human trafficking and the conclusions made by Gould (2014) and Gould & Fick (2008), a number of shortfalls are identified by Dempsey (2017). Dempsey points out that Gould (2014) has “radically truncated the scope of
the definition” of human trafficking and has even gone so far as to “exclude cases involving the use of force” (Dempsey, 2017: 73-74). Furthermore, in the study by Gould
and Fick (2008), three case studies (‘Sarah’, ‘Chantal’ & ‘Xing Xing’) were documented as cases not fitting the description of trafficking. In response, Dempsey, in applying the same set of facts to the definition of human trafficking in the Palermo Protocol, meticulously argues that Gould and Fick (2008) incorrectly coded the cases as not being trafficking and, thus, “undercounted the prevalence of trafficking for the purpose
of sexual exploitation” (Dempsey, 2017: 75-77).
In her chapter entitled ‘Trafficking: new scandals of slavery amidst old regimes of power’, Palmary (2016) similarly critiques dominant claims about human trafficking for sexual exploitation in South Africa. In her tracing of the ‘invention’ of trafficking in South Africa, Palmary makes a number of valid points pertaining to sensationalist and unsubstantiated narratives about the scope of the problem in the country. She goes on to argue that international influence and anxiety about migration control have contributed to legislation that is incongruent with South African realities. This, Palmary argues, “created a new way of conceptualising gender violence” (Palmary, 2016: 77) that attends to certain forms of violence at the expense of others and in this way creates new categories of exclusion and entitlement. In her attempts to deconstruct South Africa’s ‘preoccupation’ with trafficking, Palmary (2016: 55), similar to Gould (2014), appears to truncate the definition of trafficking radically and fails to explicate the comprehensive definition as set out in section 4 of the PACOTIP Act. Instead, Palmary refers to three criteria:
That there is some movement or harbouring of a person; That a level of coercion and deceit is required; and
That this must be for the purpose of exploiting the victim.
Also, no mention is made by Palmary of the ‘abuse of vulnerability’ as comprehensively deconstructed in section 1 of the Act. Palmary asserts that South Africa’s legislation “does not take much account for [sic] issues like internal trafficking
or labour trafficking” (Palmary, 2016: 58), despite specific reference in the Act to forced
labour and “any form or manner of exploitation” (South Africa, 2013). Palmary’s interpretation and understanding of South Africa’s PACOTIP Act lead her to assert that “women are not deceived and coerced, but know perfectly well that their work will
be exploitative”. She states that women are in fact exploited, but concludes that this
exploitation “falls short of trafficking” (Palmary, 2016: 73). This again is contrary to section 11(1)(b) of the PACOTIP Act, which clearly states that it is “no defence” to a trafficking-related offence if “an adult person who is a victim of trafficking has
consented to the intended exploitation” (South Africa, 2013). The irrelevance of initial
consent is also highlighted by the U.S. Department of State (2017: 17). In her final analysis, Palmary’s ostensible disregard for and lack of understanding of the Act and the multilayered complexities of human trafficking trickle through her assertion that South Africa’s PACOTIP law is based on “mythology” (Palmary, 2016: 77), qualified earlier in her text as “common sense cultural belief” (Palmary 2016: 64).
Most recently, Yingwana (2018: 197) arguing for the decriminalisation of sex work in South Africa, refers to “numerous studies” in South Africa which indicate that human trafficking in the sex industry “is not a significant issue” compared to other human rights’ violations. Here reliance is again placed on the ‘Selling Sex in Cape Town’ study by Gould and Fick (2008). With reference to the 2017 US TIP report, Yingwana (2018: 207) suggests that “there is little to no empirical evidence to support” the notion that South Africa is a source, transit and destination country for men, women and children subjected to forced labour and sex trafficking. This sweeping assertion by the author is not deconstructed or qualified. It also totally disregards the micro-level lived experiences of multi-disciplinary stakeholders who provide inputs into the annual US TIP report; the content of published and unpublished research; the increasing number of cases being reported; the escalating conviction rates in trafficking cases; and the plethora of media reports and investigative journalistic documentaries on the human trafficking phenomenon in South Africa. In a piecemeal fashion, Yingwana (2018: 208)
extracts chunks of the PACOTIP Act as a means to describe a ‘human trafficker’ as follows:
“‘[a]ny person who delivers, recruits, transports, transfers, harbours, sells, exchanges, leases or receives another person within or across the borders’ of South Africa through force, coercion and deception, with the victim being trafficked for exploitation purposes.”
Interestingly, ‘the abuse of vulnerability’ or any reference to its loaded definition in Chapter 1 of the PACOTIP Act is again omitted and the definition as operationalised by Yingwana truncated. Findings from focus group interviews are then shared by Yingwana (2018: 212-226), some of which contain the remarkable qualitative insight that human trafficking could very well be considered prevalent among sex workers, most of whose fragmented understanding of the crime relates only to “some form of
exploitation linked to movement” (Yingwana, 2018: 216). The author continues:
“When sex workers listed their main challenges…human trafficking was not initially mentioned. However, when we started discussing trafficking in general, some began recalling trafficking cases they had heard of in the course of their work. A few even started sharing how they now suspected that they too might actually have been initially trafficked into sex work.” (Yingwana, 2018: 216)
A number of lived experiences shared by sex workers in the study by Yingwana (2018) beg further deconstruction and unconcealing, especially when they relate to children being harmed in the sex trade. These experiences include a statement by a local sex worker who refers to ‘Nigerians’ who sell drugs and “use our children” (Yingwana, 2018: 214) and respondents who “also identified the stigma and abuse that filter down
onto their children because of their sex work…” (Yingwana, 2018: 214). Yingwana
concludes with, amongst other things, calling on the South African government to
“decriminalise all aspects of consensual adult sex work” and anti-trafficking
organisations to stop the conflation of “sex work and human trafficking” (Yingwana, 2018: 228).
The ideological chasm between the preservationist and abolitionist perspectives on human trafficking, prostitution and the sex trade is clearly problematic, and so is any dismissal of the multilayered complexities of these phenomena by opting for an either-
or and reductionist approach. Noteworthy in the study by Yingwana (2018) is how the experiences of sex worker respondents reflect the seamless interpenetration of sex work and human trafficking. Problematic here are the use of a truncated definition of human trafficking and the resulting knowledge deficit on the part of sex worker respondents regarding the whole meaning and scope of their own lived experiences, the crime and its related abuses. The call for decriminalisation of ‘consensual’ adult sex work also becomes increasingly murky when the significant role of third party beneficiaries is ignored and ‘the abuse of vulnerability’ or any reference to its full definition in Chapter 1 of the PACOTIP Act omitted.
Fully cognisant of the complex narrative and politics around the South African sex trade, the researcher found the almost frantic attempts from some quarters to disqualify concerns about human trafficking for sexual exploitation as both bizarre and thought provoking. It prompted him to explore further possible reasons for both the denial, and the vociferous deflection from the issue, of human trafficking for sexual exploitation in the face of mounting evidence. Not only do such biased assertions detract from an even-handed understanding of a complex problem, but they enable the subversive nature of the crime whilst perpetuating ignorance and the exploitation of people. The multilayered reality of trafficking and extreme abuses in the South African sex trade is, however, a verity (U.S. Department of State, 2017: 364; Forrester, 2016). Furthermore, the intersection of brothels and child sexual exploitation is by no means an anomaly (Umraw, 2015) as is evident in a number of trafficking convictions involving minor victims. In a study that documented the opinions of various role-players in the tourism sector on the planning and management of the sex work space in the City of Cape Town, examples provided of the harmful aspects of decriminalising sex work include an increase in related activities such as drug abuse, human trafficking, gangs and child prostitution (Bird & Donaldson, 2009: 44).
Other issues that may need further consideration in this discussion include the reality of child sex tourism (Spurrier, 2015), the intersection of the sex trade with a variety of criminal activities such as drugs and organised crime (Roelofse, 2011), and the ‘blesser’ phenomenon (Shamase, 2016). The most common assumption is that the ‘blesser’ phenomenon represents an indirect prostitution that occurs between ‘the blessee’, usually a woman, and ‘the blesser’, usually a male. Underpinned by unequal
power dynamics inherent in South Africa’s patriarchal political economy, the blessee is understood to be a vulnerable woman who navigates economic challenges, whilst the male is usually of a more affluent standing and leverages his economic resources to obtain sexual favours (Deadly side to ‘Blesser’ phenomenon, 2016; Solontsi, 2016). Many have warned against the normalisation of the blesser phenomenon in South Africa and clearly sketch an interface between this practice and incidents of human trafficking for sexual exploitation (Harrisberg, 2017).