25 September 2006

 

To: The Chairperson, Portfolio Committee for Justice and Constitutional Development

From: Robin Fudge

 

RE: SUBMISSION ON CRIMINAL LAW (SEXUAL OFFENCES) AMENDMENT BILL

 

I am writing to you to commend and express my support to the Committee on the inclusion of sections 7A and 66 in the above-mentioned bill.

 

I am a former Public Prosecutor and Senior State Advocate who was employed by the Office of the Director of Public Prosecutions of the Witwatersrand Local Division, and although no longer acting in the aforementioned positions, still maintain a strong interest in the development of our Criminal Law and in particular as it affects the rights of women and children.

 

The rapidly expanding and diversifying prostitution industry and increasingly visible trafficking in women and children for sexual exploitation is of great concern to me and the inclusion of transitional provisions relating to trafficking for sexual purposes is greatly welcome.

 

In this respect I have noted South Africa’s placement on the Tier 2 watch list of the US State Department Trafficking in Person’s Report 2006 and our listing as a medium country of destination for trafficking victims in the first ever United Nations Global Trafficking Report 2006.

 

We are in the fortunate position at this time, however, of being able to take inspiration from the relative success achieved by Sweden in combating both the prostitution and trafficking of women. The Swedish Government defined prostitution as a form of male violence against women and children and criminalised the purchase and attempted purchase of sexual services. 

 

Research indicates that countries such as Australia, the Netherlands and Germany who have legalised the prostitution industry have in contrast experienced a dramatic increase in legal and illegal prostitution and trafficking in persons for sexual purposes. These countries have also all been listed as high or very high receivers of trafficked persons in the aforementioned UN Report.

 

I am also aware of the proposition raised by SWEAT that section 7A would not pass constitutional muster due to the lack of opportunity provided for public participation. It was made quite clear, however, in the Constitutional Court decision of Jordan and Others v S and Others 2002 (11) BCLR at 1121 G – H that the buyer of sexual services commits an offence at both common law and in terms of section 18 of the Riotous Assemblies Act and in terms of the latter Act is liable to the same punishment to which the prostitute is liable.

 

It is suggested therefore that the legal position of the purchaser of sexual services remains substantially unaltered by 7A and I fail therefore to understand the need for public hearings in this regard. It is also submitted that it is highly improbable that a constitutional challenge based on this ground would succeed.   

 

It is also unclear from where SWEAT derives its mandate to pursue a policy of complete decriminalisation of the entire prostitution industry as being to the benefit of prostituted women. According to Farley et al in Prostitution in Five Countries: Violence and Post- Traumatic Stress Disorder Feminism & Psychology, 1998, Volume 8 (4): 405-426 in Table 7 a significant majority of the

                                                                       

women surveyed in prostitution in SA did not feel that legalisation would decrease the violence they were subjected to and that over 90% wanted to leave prostitution.

 

It is suggested that instead of entrenching a deeply exploitative and harmful practice the prostituted women would be better served by inter-departmental co-operation providing exit programmes and assistance in the creation and acquisition of employment more in keeping with the dignity and respect all people deserve.

 

It is suggested further that the criminalisation of the purchase of sexual services in terms of 7A is in accordance with the obligation in terms of article 9.5 of the Palermo Protocol to discourage the demand that fosters the exploitation of persons that leads to trafficking. This approach also upholds our international and regional treaty obligations to prohibit all exploitation and degradation of women.

 

I am aware that the Committee is already in the process of deliberations but I respectfully ask that this submission be received, even at this late stage.

 

Please find attached a copy of my submission to the SALRC re the Draft Trafficking Bill for your information


 

INTRODUCTION

 

As an individual I have become extremely concerned by the rapidly expanding and diversifying prostitution industry and increasingly visible trafficking in women and children for sexual exploitation in South Africa.

 

It has been estimated that between 600 000 and 800 000 people are trafficked annually worldwide and that of these approximately 80% are female and 50% under the age of 18 1. The transnational trafficking in women and children takes place primarily for prostitution and other sexual exploitation 2. Although a proportion is trafficked for forced labour, in the case of women and girls this is often accompanied by physical and sexual abuse3.

 

This global pattern appears to be mirrored in South Africa. In the United Nations Trafficking Report 2006 it was reported that victims of trafficking to South Africa were mostly women and to a lesser extent girls. The main purpose of the trafficking was reported to be sexual exploitation but forced labour was frequently reported4. The trafficking appears to be controlled by organised criminal gangs from Bulgaria, Russia, Thailand, China and Nigeria5. Domestic trafficking for sexual exploitation of women and girls also appears to be happening on a significant scale6.

 

An article which appeared in the Argus points suspiciously to sex trafficking happening in plain sight through use of the cover of “legal” sex clubs if the report is accurate to any degree7. Classified advertisements, ironically in the same newspaper though not the same date, also point to a possibility of human trafficking into organised prostitution8. The collusion of the media and the possibility of the involvement of young victims in this instant are also very worrying aspects.

 

I have also noted that South Africa has once again been placed on the Tier 2 watch list for lack of evidence of increasing efforts to combat this problem 9 and therefore welcome the progress that is being made towards producing legislation in this regard and the opportunity to comment on various aspects of the Draft Bill.

 

GENERAL

 

Although it is understood that the question of adult prostitution is still being investigated by the Commission and is not a central concern of the proposed legislation it is noted that the draft bill appears to have been framed in such a way as to incorporate the legalisation of organised prostitution and a number of the concerns that I have with the draft bill result from this approach.

 

In brief, the purchase of the bodies of women and girls for sexual gratification is rooted in poverty, violence and gender inequality10. It is suggested that any approach that seeks to formalise the practice of the trade in overwhelmingly women and girls as commodities for marketing, display and consumption would serve not only to entrench the aforementioned inequality but would fail to recognise the severe physical, psychological and sexual harm incurred by the victims.

 

 

7.   “Russian Strippers Flooding into the City”, Rasmus Thomsen staff reporter, Argus dated 8 February 2006.

8.    Classified Ads, Argus June 2, 2006, page 10: ”Chinese Ladies, New..Young..Fresh” ; “Chinese Massage

       Very Young Beauties”.            

9.    TIP 2006 ibid

10. Dorchen Leidholdt, Co- Executive Director, Coalition Against Trafficking in Women, Presentation to UN Special Seminar on Trafficking, Prostitution and the Global Sex Industry – Position Paper for CATW: Part Two accessed on 14/04/2006 from www.catwinternational.org.

A distinction appears to be drawn between voluntary prostitution and other prostitution. But can one really make this determination? Research indicates that of those engaged in prostitution approximately 70% were sexually abused as children and that the average age of entry into prostitution was 16 or younger11. The latter figure appears to be of universal application12. At the age of 18 can one really hold that a vocational choice is made or is the prostitution merely a continuation of childhood abuse?

 

The reality is that no women really want to have sex with 5, 10, 20 or more men a day, every day13. Entering into prostitution is overwhelmingly a survival option. In such circumstances can one speak of choice at all if there are no viable alternatives to choose from? Is what happens during the sexual exploitation not the most important consideration rather than a notional form of consent? It has been suggested by the United Nations Special Rapporteur that most prostitution is in either event accomplished by one of the illicit means outlined in subparagraph (a) of the Protocol14 and therefore constitutes trafficking15.

 

Would legitimising the pimping and purchasing of women as a business enterprise be in accordance with our various international and regional treaty obligations?

 

 

 

11.             Dorchen Leidholdt, Making the Harm Visible, Global Sexual Exploitation of Women and Girls

Speaking Out and Providing Services, Prostitution – A Modern Form of Slavery, page 3, accessed 15/04/2006 http;//www.catwinternational.org

12.             The legalisation of prostitution and its impact on trafficking in women and children, Richard Poulin,

                   Department of Sociology, University of Ottawa, page1, accessed 20/06/2006. Also Globalisation and

                   the Sex trade, Trafficking and Commodification of Women, Richard Poulin.

13       How Prostitution Works, Joseph Parker, Clinical Director, The Lola Greene Baldwin Foundation, para   ‘The Pimp”  accessible at http:// prostitutionrecovery.org/how _prostitution_works.html   

14.      Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing and United Nations Convention Against Transnational Organised Crime, ratified by South Africa 29/02/2004 , hereinafter referred to as the Protocol.

15       Intergration of the Human Rights Of Women and a Gender Perspective, Report of the United Nations Special Rapporteur, Sigma Huda,  on the human rights aspects of the victims of trafficking in persons, especially women and children, submitted in accordance with Commission on Human Rights decision 2004/110, E/CN.4/2006/62, 20 February, page 10, para 48.

Convention on the Elimination of All forms of Discrimination against Women (CEDAW) of 1979 ratified by RSA in 1995

 

Art 6 of CEDAW uses the same wording as the 1949 Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of others (ratified by RSA in 1951) calling on States Parties to “take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women”. In both instances “exploitation of prostitution” can only refer to third party profiteers from prostitution16.

 

Protocol to the African Charter on Human and Peoples’ Rights on the rights of Women in Africa

 

The Protocol17 does not only give recognition to a women’s’ right to dignity18 but obliges States Parties to adopt and implement appropriate measures to prohibit any exploitation or degradation19 as well as to adopt and implement measures to ensure the protection of every women’s right to respect for her human dignity and protection from all forms of violence, particularly sexual and verbal violence20.

 

Violence against women is defined as including ‘all acts perpetrated against women which cause or could cause them physical, sexual, psychological, and economic harm, including the threat to take such acts; or to undertake the imposition of arbitrary restrictions on or deprivation of fundamental freedoms in private or public life in peacetime and during situations of armed conflicts or of war;’21

 

 

 

16. Lara Fergus, “Trafficking in women for sexual exploitation” supra at page 11

17. The Protocol was adopted on 11 July 2003 and came into force on 25 November 2005 after the ratification of the fifteenth state, Togo, was deposited.

18. Art 3.1

19. Art 3.3

20. Art 3

21. Art I j

The well documented harm22 suffered by women/girls engaged in prostitution would, it is suggested, certainly fall within this definition and therefore constitute gender violence. This is also the view taken by Sweden23. The Swedish Government defined prostitution as a form of male violence against women and children in legislation on gross violation of a woman’s integrity. The purchase or attempted purchase of sexual services constitutes a criminal offence. The women and children who are victims of prostitution and trafficking do not risk any legal repercussions.

 

States Parties are also to ensure that the right to sexual and reproductive health is promoted and respected24.. This includes the right to self protection and the right to be protected against STI’s25 as well as the right to be informed on one’s health status and on the health status of one’s partner, particularly if affected by STI’s including HIV/AIDS26. In this context prostitution could also constitute violence against the unsuspecting wife/partner of the prostitute user whose health /life is placed at risk through his behaviour. It has been estimated that in developing countries approximately 70% of female infertility is caused by sexually transmitted diseases that can be traced back to their husbands or partners27.

 

Although adult prostitution is not referred to directly it is suggested that the indirect effect of the all the provisions in the Protocol would be to suggest that such a practice would not be permissible; at least not for the pimp or the buyer.

 

 

22.          Janice Raymond, Making the Harm Visible, Global Sexual exploitation of Women and Girls speaking Out and providing services, Health Effects of Prostitution. Accessible at http:// www/catwinternational.org. See also Prostitution in Five Countries: Violence and Post- Traumatic Stress Disorder (South Africa, Thailand, Turkey, USA, Zambia) by Melissa Farley, Isin Baral, Merab Kiremire and Ufuk Sezgin. Accessible at http://www. prostitutionresearch.com/fempsy1.html. Melissa Farley, “Bad for the Body, Bad for the Heart”, Prostitution Harms Women even if Legalised or Decriminalised, Prostitution Research & Education. Access at http://www.prostitutionresearch.com

23.          Ministry of Industry, Employment and Communications, April 2005, Prostitution and Trafficking in Human Beings. Accessible at http://www.sweden.sou/sb/d/2192

24.          ART 14.1

25.          Art 14 1.d

26.          Art 14 1. e

27.          Janice Raymond, supra , page 2,

It is suggested that organised prostitution could conflict with the provisions of the Promotion of Equality and Prevention of Unfair Discrimination, No 4 of 2000

 

The Act recognised the existence of systemic discrimination and inequalities, particularly in respect of race, gender and disability in all spheres of life as a result of past and present unfair discrimination, brought about by colonialism, the apartheid system and patriarchy; and the need to take measures at all levels to eliminate such discrimination and inequalities28.

 

The Act also provides for the prohibition of any gender based violence29and any practice which impairs the dignity of women and undermines equality between men and women including the well-being and dignity of the girl child30.

 

It is suggested the reduction of a human being to a commodity/sexual merchandise for trade purposes constitutes a severe violation of human dignity31. It has been suggested by the UN Special Rapporteur that the act of buying sex in itself is a particularly gendered act. That the act of prostitution by definition joined together two forms of social power namely sexuality and economics in which men hold systemic power over women. In prostitution these disparities are merged in an act which assigned and affirmed the dominant status of men over the subordinated social status of women32.

 

 

DRAFT BILL

 

Chapter 1- Definitions

 

abuse of vulnerability”

 

28.          Sec 4 (2) (a) and (b)

29.          Sec 8 (a)

30.          Sec 8 (d)

31.          Minority judgement of O’ Regan and Sachs JJ, Jordan and Others v S and Others 2002 (11) BCLR 1117 (CC) at 1140 F - H

32.          UN Special Rapporteur supra at page 13 paragraphs  64 and 65

Recognising the many ways in which victims are trafficked for exploitation the Protocol includes methods of securing the co-operation of the victim without the actual use of force such as fraud, deception and abuse of power or a position of vulnerability33.

 

It is suggested therefore that the inclusion of the use of physical or psychological abuse in the definition of abuse of vulnerability is unnecessary and already contained within the elements of force, intimidation and coercion. In the circumstances it is suggested that the definition be altered as follows to reflect the broader and more inclusive definition of trafficking contained in the Protocol:

 

“means the taking advantage of the vulnerabilities of a person in such a manner as to lead that person to believe that he or she has no reasonable alternative but to submit to exploitation. Vulnerabilities include but are not limited to… “

 

Poverty is acknowledged in both the discussion papers34 and the Preamble as one of the main causes of making persons vulnerable to trafficking and it is submitted that it should therefore be included in the list of vulnerabilities.

 

As research indicates that the majority of victims of sex trafficking have a history of sexual abuse35, it is submitted that this too should be included in the list of vulnerabilities. It is suggested therefore that the list be altered to include the following:

 

 

(a) poverty

(b) past history of sexual abuse

 

 

33.          This was also acknowledged in the South African Law Reform Commission, Project 131, Discussion Papers, chapter 2, at page 15, paragraph 2.15.

34.          Page 7, paragraph 2.3 of the Discussion Papers to the Bill – “preventing trafficking”. See also Zimmerman, C; Yun, K; Shvub, L; Watts, C et al (2003), The Health Risks and Consequences of Trafficking in Women and Adolescents: Findings from a European Study, London, LSHTM, page 114, paragraph14.  Accessible at http://www.lshtm.ac.uk/hpu/new_papers

35.          See Zimmerman supra at page 114, paragraph 14 and at page 31 paragraph 1.1.2

 

“debt bondage

 

Personal testimony of victims and research seem to indicate deception combined with debt bondage is a common theme in trafficking irrespective of any other means which might be used to ensure compliance with the exploitation. According to Fergus evidence suggests that debt bonded prostitution is the major form of trafficking in Australia accounting for the majority of victims.36 She describes trends noticed during research with respect to trafficking for sexual exploitation. Victims tended to describe five main “stages” to the trafficking process in Australia - recruitment, transport, ”breaking in”, debt-bonded prostitution and post -“contract”37.

 

Irina38, a Russian victim of trafficking into prostitution in Germany and the Netherlands, in testimony before the US House International Relations Committee, described a similar process - being sold again and again – until, after a long struggle, she managed to return to Russia with the help of the Angel Coalition, an anti- trafficking coalition and service provider in Russia.

 

In the Argus report mention is made of a one way ticket to South Africa for “showgirls” which had to be paid off by the women plus a weekly levy39. Although the article should be read with a degree of scepticism it is noteworthy that the women, on the “agent’s” version, have no way of returning home if they have been deceived as to the nature of the work or any aspect of the working conditions. As they are likely to have communication problems; no accommodation; no food; no friends or family to help cope with the situation, they will effectively be trapped.  

 

The so-called agent appears also to have control over their presence in South Africa. After bringing them into country is the “agent” likely to let the women leave or pay for

 

 

36.          Fergus supra at page 18, “the Situation in Australia’.

37.          ibid at page 21-25

38.          Donna M. Hughes, 19 June 2006, Turn and Look, Shining a spotlight on Germany’s shame. Accessible at http://article.nationalreview.com/?

39.          Argus ibid

 

a return ticket? This would seem to be very improbable. The organisation and expense involved in bringing the women into the country, even if exaggerated, would not be incurred, it is suggested, unless there was an expectation of large profit to be made.  The circumstances the women find themselves in are very open to manipulation and contain suggestions of the practice of debt-bondage40.

 

It is suggested that the processes related to trafficking in South Africa are likely to be similar to those found in Australia and elsewhere and that debt-bondage should therefore be included in the definition of trafficking as one of the means to induce submission into an exploitative situation

 

“exploitation

 

 

In terms of the Protocol exploitation includes at a minimum the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs. If any of the means used listed in 3(a) to ensure compliance are used the consent to the intended exploitation is irrelevant in terms of 3(b).

 

The draft bill reflects the provisions of the Protocol by including section 5 (2) (a) (і) in terms of which consent is not to be considered a defence to the intended exploitation. The concept of consent, however, is then reintroduced by way of the definition of sexual exploitation thus making the consent in fact a defence to the intended sexual exploitation and re-imposing the burden of proof onto the victim which the Protocol sought to remove and shifting the focus of any legal inquiry from the state of mind of the trafficker to the state of mind and character of the victim. The focus, it is suggested, should be on the means used to secure the compliance of the victim and the intention of

 

                                               

                     40.   It appears that, contrary to the statement in the article , the Department of Home Affairs is granting no–strings       

                    attached                                                 corporate visas to bring “exotic dancers’ into the country. This was established by the author of this  

                             article by a phone call to the temporary visas department. In the light of the article and what is known of the        

                    methods used by the traffickers, this is very disturbing. The matter should be investigated and the practice should

                    stopped.

 

the trafficker to exploit. Whether or not the person consents to the exploitation, that person can still be exploited.

 

The Protocol very clearly regards prostitution as exploitation in itself. Note that the Protocol does not refer to forced prostitution but does refer to forced labour. Although the human rights violations suffered during forced labour are no doubt severe they can in no manner be compared to the grotesque harm and intimate violation of trafficking into prostitution.

 

The use of “participation” in the definition furthermore suggests, it is submitted, that the victim is somehow complicit in his/her own exploitation. It is suggested that it would be more accurate to refer to the victim as having been induced into a sexually exploitative situation. 

 

It is suggested that in order to bring the draft bill into line with the Protocol the definition of sexual exploitation should read as follows:

 

“means the inducement of a person into prostitution or other sexual acts, or the inducement of a person into the production of pornographic material as a result of being subjected to threat, force, intimidation, coercion, abuse of power or abuse of a person’s vulnerabilities”.

 

pornographic material

 

No definition is provided regarding what constitutes pornographic material for the purposes of the Bill. This could create an opportunity for successful legal challenges from traffickers. The only reference to pornography in the Film and Publication Act No. 65 of 1996 is to child pornography for which a specific definition is provided.

 

It is therefore suggested that the following definition of pornography for the purposes of this Bill be considered for inclusion. It is also suggested that said definition should naturally be broad and inclusive in the circumstances:

 

“pornography for the definition of trafficking includes any image, however created, real or simulated, using the body, or parts of the body, or voice, of any person, for any acts which aim at sexual arousal”.

 

Objects of the Act

 

It is suggested that section 2(c) be read as follows to give better expression to the spirit of the Protocol: “generally to combat trafficking in persons, paying particular attention to women and children”.

 

Chapter 2 – Guiding Principles

 

Section 4.1 (a) It is suggested that deception, fraud, abuse of power and vulnerability be included here to reflect the inclusive definition in the Protocol and in recognition of the fact that deception plays such a prominent part in the practice of trafficking?

 

Section 4. 2 (b). The terms sex work; sex worker and client are not referred to by the Protocol. In addition a distinction is drawn between the exploitation of “prostitution” and “forced labour”. It is suggested that to refer to the exploitation of prostitution as work would serve to conflate the terms and deny the specific harm suffered during prostitution. In either event it is suggested that (b) is a duplication of (c) and is therefore unnecessary and should be removed.

 

Section 8 “Using the services of victims of trafficking

 

Article 9.5 of the Protocol urges States Parties to go further than to discourage the demand for trafficked persons per se but to take measures to discourage the demand that fosters all forms of exploitation of persons, especially women and children that leads to trafficking.

 

 

As conceded by the South African law Reform Commission in its Report41 curtailment of trafficking in persons for prostitution seems to go hand in hand with strong measures to eliminate the demand for prostituted women and children.

 

The link between commercial sexual exploitation and trafficking in women and girls was also acknowledged in a resolution Eliminating the Demand for Trafficked Women and Girls for All forms of Exploitation adopted by the UN Commission on the Status of Women and governments were urged to deter exploiters and eliminate the demand that fosters trafficking of women and girls for all forms of exploitation.42

 

It is suggested that something more is therefore needed to satisfy Art 9.5 than criminalisation of demand specifically for the services of trafficked persons. The UN Special Rapporteur suggests that States have an obligation under article 9.5 to discourage use of prostituted persons generally.43

 

CONCLUSION

 

It is suggested that any effort to combat the problem of trafficking in humans for sexual exploitation must take into account and confront the male demand for the purchase of sexual acts which is clearly driving the practice. It is for this reason that it is suggested that the questions of trafficking in humans and adult prostitution be considered simultaneously, if at all possible.

 

Although my comments have related mostly to trafficking for sexual exploitation this is not to deny the severity of trafficking for other forms of exploitation but due to the inherent difficulties relating to the prosecution of the former that are not as apparent in the latter.

 

 

41        SA Law Reform Commission, Discussion Papers 111, project no 131, chapter 4, page 67 paragraph 4.15. See also UN Trafficking Report 2006 supra, Appendix 5 – pages 14-15. Note correlation between legalisation of prostitution and categorisation as very high of receiver of trafficking victims.

42        2005 UN Commission on the Status of Women March 11, 2005

43        UN Special Rapporteur supra, page 12, paragraph 60       

 

Robyn Fudge

30 June 2006