REPUBLIC OF SOUTH AFRICA DECRIMINALISATION OF SEX WORK BILL 2022

GENERAL EXPLANATORY NOTE:

BILL

PREAMBLE

WHEREAS sex work is acknowledged as a social practice which exists within our society; and, historically, criminal laws against consensual adult sex work have not eliminated its presence, but merely contributed to the stigmatisation, unfair discrimination, exploitation and ill-health of those people working within the sex industry;

WHEREAS the South African Constitution establishes a society based on democratic values, social justice, and fundamental human rights and seeks to improve the quality of life of all citizens and to free the potential of each person;

WHEREAS the Bill of Rights in the South African Constitution enshrines the rights of all people in the Republic of South Africa, including the rights to equality, dignity, privacy, freedom of occupation and trade, freedom and security of the person (which incorporates the right to be free from all forms of violence from either public or private sources) and the right to fair labour practices;

AND WHEREAS the State must respect, protect, promote and fulfil those rights; Parliament hereby enacts legislation to decriminalise consensual adult sex;

BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:—

APPLICATION OF THIS ACT

1.Object of Act

2.TRANSITIONAL PROVISIONS, REPEALS AND AMENDMENTS

  • Transitional Provisions
  • No person may be convicted of an offence against any of the enactments repealed by schedule

1 on or after the commencement of this Act if the offence  was committed before the commencement of this Act.

  • Upon entry into force, any person convicted of an offence under sections 2, 3, 5, 6, 7, 8, 10, 12, 12A, 17, 19, and 20 of the Sexual Offences Act 23 of 1957; and section 11 of the Criminal Law (Sexual Offences and related matters) Act 32 of 2007 may apply for their record to be expunged.

3.      Repeal and amendment of laws

  1. (1) The laws specified in Schedule 1 are hereby repealed or amended to the extent set out in the third column of that schedule.
  No. and year of law  Short title  Extent of repeal or amendment
  No 23 of 1957  Sexual Offences Act  The whole – Keeping a brothel (section 2); Certain persons deemed to keep a brothel (s3); Contract to let house of place for a brothel void (s5); Use of house or place as a brothel voids contract of letting (s6); Summary ejectment when a house or place is used as a brothel (s7); Proceedings upon complaint by householders or police that a house or place is used as a brothel (s8); Procuration (s10); Detention for the purposes of unlawful carnal intercourse (s12); Assistance for purposes of unlawful carnal intercourse (s12A); Owner or occupier permitting on his premises the defilement of a female or any offence against this Act (s17); Enticing to commission of immoral acts (s19); Persons living on earnings of prostitution or committing or assisting commission of indecent acts (s20).
  No 32 of 2007  Criminal Law (Sexual Offences and related matters) Amendment Act  Repeal of whole of section 11 – Engaging sexual services of persons 18 years or older   “A person (‘A’) who unlawfully and intentionally engages the services of a person 18 years or older (‘B’), for financial or other reward, favour or compensation to B or to a third person (‘C’)-   for the purpose of engaging in a sexual act with B, irrespective of whether the sexual act is committed or not; or   by committing a sexual act with B,   is guilty of engaging the sexual services of a person 18 years or older.”     Insertion of section 56(3) under the heading Defences and sentencing:   56(3) No person contravenes section 54(1) merely by providing legal advice, counselling, health advice, or any medical services to a person under 18 years of age.
  2011  Independent Police Investigative Directorate Act  Insertion of section 28(1)(i) under types of matters to be investigated:   28(1)(i) any complaint of harassment, assault, bribery, or rape against a police official or peace officer by a sex worker.

Short title and commencement

3. This Act is called the Decriminalisation of Sex Work Act XX OF 2022 and comes into operation on a date determined by the President by proclamation in the Gazette.

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