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