A CASE FOR THE DECRIMINALISATION OF PROSTITUTION? A CRITICAL ANALYSIS OF THE WOMEN IN PROSTITUTION IN HARARE, ZIMBABWE
BY
Tariro TANDI
Supervisor: Dr Amy S. TSANGA
A Dissertation submitted in partial fulfilment of the requirements for a Masters Degree in Women’s Law, Southern and Eastern African Regional Centre for Women’s Law, University of Zimbabwe
2012 Abstract
This brave piece of research seeks a solution to the growing numbers of prostitutes in Zimbabwe following its recent economic and social disintegration. So far, the law (carried over from the country’s British colonial past), which criminalises prostitution, has exacerbated rather than curbed the problem. Adopting a liberal feminist perspective and employing the unique Women’s Law Approach, this intrepid and compassionate writer conducts her research of about 40 prostitutes operating at both ends of the economic spectrum within Harare, the country’s capital. The aim of this methodology is to utilise whatever approaches are necessary (e.g., the Grounded Theory and Human Rights, Law, Sex and Gender Analysis Approaches) to search out and reveal the lived realities of prostitutes (or the full gendered impact of the multiple legal, political, economic, social and cultural contexts in which they live) in order to examine, from their point of view, the law and society which confronts them. Relevant data collected for the study includes a review of the law and literature on the subject, interviews and discussions with prostitutes, their clients, policemen, lawyers, magistrates, MPs, government policy advisors and NGO representatives. The findings of the research highlight the fact that criminalizing prostitution (apart from registering society’s strong patriarchal yet hypocritical moral opposition to prostitution) ignores the lived realities of prostitutes who, because of their impoverished economic and family circumstances, are forced to enter into prostitution and make their living from it because they do not possess the educational qualifications to secure employment in Zimbabwe’s shrinking and low-paying formal sector. It also reveals that criminalising prostitution drives prostitutes underground, exposing them to serious violence, health risks, discrimination and police harassment. Balancing the Zimbabwean’s strong moral opposition to legalising prostitution against the need to remove the negative aspects of its current criminalisation, the writer suggests that prostitution should be decriminalised (as opposed to legalised) and suggests various legal and economic reforms which will help to assist and protect prostitutes but discourage the practice of prostitution.
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Table of Contents
Table of Contents ...... iii Declaration ...... vi Dedication ...... vii Acknowledgements ...... viii Acronyms and Abbreviations ...... ix International Human Rights and Regional Conventions cited ...... x Various Statutes cited ...... x Table of Cases cited ...... x List of Figures ...... x List of Tables ...... x CHAPTER 1 ...... 1 1.0 INTRODUCTION AND BACKGROUND TO THE STUDY ...... 1 1.1 Introduction ...... 1 1.2 Statement of the Problem ...... 2 1.3 Location of the Study ...... 3 1.4 Significance of the Study...... 4 1.5 Research Objectives ...... 5 1.6 Research Assumptions ...... 5 1.7 Research Questions ...... 6 1.8 Definition of Key Concepts ...... 7 CHAPTER 2 ...... 9 2.0 LAW AND LITERATURE REVIEW ...... 9 2.1 A Brief Historical Analysis of the Laws on Prostitution ...... 9 2.2 Feminist Perspectives on Prostitution ...... 11 2.3 A Reflection on African Sexuality in relation to Prostitution ...... 14 2.4 An Analysis of different Legal Frameworks on Prostitution ...... 17 2.5 Domestic Legal Framework ...... 20 2.6 Human Rights Framework ...... 21 CHAPTER 3 ...... 25 3.0 THE METHODOLOGY FOR THE STUDY AND DATA COLLECTION METHODS ...... 25
iii 3.1 The Methodological Framework ...... 25 3.2 The Methodology for the Study ...... 26 3.2.1 Grounded Theory ...... 26 3.2.2 Women’s Law Approach ...... 28 3.2.3 Human Rights Approach ...... 32 3.2.4 Sex, Gender and Law Analysis ...... 33 3.3 Data Collection Methods ...... 34 3.3.1 Key Informant Interviews ...... 34 3.3.2 Focus Group Discussions ...... 35 3.3.3 Court Observation ...... 36 3.3.4 Desk Research ...... 37 3.3.5 Language ...... 37 3.3.6 Ethical Considerations ...... 38 CHAPTER 4 ...... 40 4.0 MAIN FINDINGS AND ANALYSIS ...... 40 4.1 Application of the Law and Experiences with Law Implementers ...... 40 4.2 Pathways into Prostitution ...... 45 4.2.1 Poverty and Financial (or Economic) Constraints ...... 45 4.2.2 Lack of Education and Skills ...... 49 4.2.3 Disintegration of the Family Unit ...... 50 4.2.4 Neglect of the Duty to maintain Children by responsible Persons burdening Women ...... 51 4.3 Prostitutes as autonomous Beings exercising Sexual Agency ...... 52 CHAPTER 5 ...... 55 5.0 A CASE FOR THE DECRIMINALIZATION OF PROSTITUTION: WHAT CAN BE DONE? .... 55 5.1 Prostitution, Morality and the Law ...... 55 5.2 Criminalisation, Legalisation or Decriminalisation? What is the Way Forward for Zimbabwe? ...... 60 5.2.1 Criminalization ...... 61 5.2.2 Legalization ...... 62 5.2.3 Decriminalization ...... 64 CHAPTER 6 ...... 67 6.0 CONCLUSION AND RECOMMENDATIONS ...... 67 6.1 Conclusion ...... 67
iv 6.2 Recommendations ...... 68 Bibliography ...... 70
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Declaration
I Tariro Tandi certify that this dissertation is my original work; it is an honest and true effort of my personal research. I certify that the work has not been presented anywhere else before for any other thesis.
Signed……………………………………
Date………………………………………
This dissertation was submitted for examination with my approval as the University Supervisor
Signed…………………………………….
Date……………………………………….
DR AMY S. TSANGA Deputy Director of the Southern and Eastern African Regional Centre for Women’s Law, University of Zimbabwe
Date…………………………………….Signed………………………………………….
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Dedication
This work is dedicated to my two lovely angels Tanatswanashe and Tinaishe who I never managed to spend quality time with whilst pursuing this Masters Degree. You give me the reason to live and put a smile on my face when all is blue. To my Mum, a widow who tirelessly fought to give us a good education, I love you.
To all the Prostitutes out there your courage and tenacity challenge me always. Aluta continua!!!
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Acknowledgements
I thank the powers that be for the successful completion of my studies.
My profound gratitude and endless appreciation go to the following:
My maid and my little sister who helped me look after my two boys whilst at school , the road was not easy but you stood by me, when I had to be in hospital with Tinaishe you were there to help me, even when I was on the verge of giving up you gave me courage.
My husband, thank you for being the father and mother to Tanatswanashe and Tinaishe whilst I could not be there.
The Norwegian Government for sponsoring my Masters.
Dr. Amy Tsanga, my lecturer and supervisor; for the invaluable guidance and encouragement as well as constructive criticism in my write up; You are an inspiration.
To my sexuality lecturers, I say thank you for making me see the world through different lenses.
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Acronyms and Abbreviations
AIDS Acquired Immune Deficiency Syndrome CEDAW Convention on the Elimination of All forms of Discrimination Against Women CSW Commercial Sex Work FGD Focus Group Discussion HIV Human Immuno Deficiency Syndrome ICPR International Covenant on Civil and Political Rights WHO World Health Organisation ZIMRA Zimbabwe Revenue Authority
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International Human Rights and Regional Conventions cited
The International Convention on Civil and Political Rights, 1966 The Universal Declaration of Human Rights, 1948 Convention on the Elimination of All Forms of Discrimination Against Women The Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa (‘The African Protocol on Women’s Rights’)
Various Statutes cited
Criminal Law Codification and Reform Act 9; 23 Constitution of Zimbabwe Prostitution Reform Act of 2003 (New Zealand) Uganda Penal Code
Table of Cases cited
S v Jordan and Ors (2002) (1) SACR 17(1)
List of Figures
Figure A: Diagram showing how Prostitution is treated in different Legal Jurisdictions throughout the World (SALC, 2009) ...... 19
List of Tables
Table 1: Showing how some African States treat Prostitution ...... 20
x CHAPTER 1
1.0 INTRODUCTION AND BACKGROUND TO THE STUDY
1.1 Introduction
My name is Hatibviri*1, I am 43 years old. I am a prostitute and have been (one) since 1983. I separated with the father of my children in 1982 and was struggling to make ends meet for me and my two daughters. I decided that selling sex was the only way out. I handle men in ways that their wives can never do, I call them ‘daddy’, fake orgasm, sing songs of praise even if there is nothing to praise so he can come back again. All my life as a prostitute I have had to grapple with maintaining a balance between keeping my profession a secret and ensuring that I make the most out of it. I have been arrested by the police numerous times I have lost count. I have slept in police cells a number of times and have given the police bribes so that that I could be released countless times. Police Officers at times ask us to have sex with them so that they can release us. People despise me for being a prostitute and look at me as if I am dirty and in need of a serious clean up. I love what I do although I am now tired of it and am hoping I get a job even as a housemaid for as long as it pays well so that I can retire.
Being a prostitute is very dangerous and exposes us to a lot of danger but our profession is like that of a soldier. When we get into it we commit our lives and are even prepared to die. You know what one thing I treasure and enjoy is independence as prostitutes we are our own boss and are independent without having someone to report to. In terms of Hiv we are safe as we demand the use of condoms at every sexual encounter, as you can see I have a box with me (said as she shows a box of condoms which she carries around with her).
Hatibviri’s story is not unique; many prostitutes’ face so many challenges in their lives mostly due to the fact that their work is criminalized and society views it as morally abhorrent. This research has been prompted largely by the need to unearth how prostitutes are affected by the law which criminalizes prostitution in Zimbabwe. This research focuses on adult voluntary
1 * Not her real name. This convention is used throughout this study in order to protect the identities of those who kindly participated in it.
1 prostitution being cognizant of the fact that there is also child prostitution and forced prostitution.
Prostitution has been defined as a form of non-marital sexual activity characterized by financial reward and absence of long term fidelity between the parties (Tierney, H.1999). Prostitution has been widely debated, condemned for its immoral and degrading nature. On the other hand there are some who have counter argued saying that prostitution is very empowering. The controversy surrounding prostitution has divided feminists worldwide. Radical feminists are of the opinion that prostitution is an institution of male dominance that exploits economically vulnerable and emotionally damaged women for the sake of male pleasure. In this regard prostitutes become involuntary victims of patriarchy or conscious participants in the degradation of women. This therefore impacts on all women as a group as prostitution continually affirms and reinforces patriarchal definitions of women as having a primary function to serve men sexually.
Conversely liberal feminists find in prostitution a practice of women’s resistance to and sexual liberation from norms and traditional moral precepts of sexuality that have long served to control and subordinate women. Others see prostitution as a means of wrestling patriarchal control over women’s sexuality which women should be at liberty to do. Prostitution therefore raises moral and legal questions. The legal question is should the practice be criminalized? And the moral question is, is it wrong to sell or buy sex? These are questions which this research will seek to answer informed by the lived realities of women who make their living by prostitution.
1.2 Statement of the Problem
Prostitution or the selling of sex is, as some would call it, one of the oldest professions in the world as it has been there since time immemorial. What is of interest is the way the law has decided to make it its business who and how people have sex by criminalizing prostitution. As criminal law is meant to regulate social harms, what harm is caused by prostitution? The law seems to be a toothless bulldog in light of the fact that regardless of the criminalization of prostitution many women still engage in the trade and make a living out of it. Criminalizing
2 prostitution seems to be a futile exercise as it is failing to achieve the intended results that of deterring other possible perpetrators; instead it just frustrates the women who engage in it as they are essentially constantly harassed by the police without any prosecution. Why are there double standards as regards prostitution; why is it that it is only the sellers and not the buyers who are penalized? Is it not a case for patriarchy to further want to domesticate women and ensure that their sexuality is controlled and tamed within marriage? Considering that women in Africa are the least educated and when they are employed it is usually an extension of work done in the domestic arena which is the least paid; is prostitution not one of the better choices from the pool of work that they have to choose from? (Tamale, S, 2008).
There is therefore a need to look at prostitution as work and not on the sex as it were so that prostitutes are not further driven underground which makes them vulnerable and susceptible to violence. Criminalization creates a culture permitting violence against sex workers and sanctions violence and discrimination against them. Sex workers are also afraid to report crimes against them, knowing that police may arrest them or may not take their claims seriously.
If criminalization has failed to reduce prostitution or protect the most vulnerable, what alternative model should take its place? It is this research’s case that prostitution should be viewed as a legitimate option of work for women that identifies with bodily autonomy, financial independence and the notion of choice.
1.3 Location of the Study
This study focused on two contrasting locations in the capital city of Zimbabwe, Harare, Highfield suburb and the Avenues area of central Harare. Highfield is a high density suburb in Harare; it is one of the oldest townships in Zimbabwe. Popularly known as Fio in local slang, it was established in 1930 for black settlement during the colonial era. It has remained a poor suburb which is a primary destination from rural to urban migrants, who find it easier to pay for accommodation and commute to work. It is also well known for the home businesses or industries at Machipisa and Gazaland home Industries. It is heavily populated, with high
3 unemployment and is socially deprived. Petty crime is high as well as more serious crimes like burglaries and assaults.
In contrast, the Avenues area is a mixed purpose suburb in Harare, Zimbabwe in that it is both a residential area and a business area as well. It lies between Harare’s city centre and its leafy suburbs. It boasts of a number of bars and lodges and remains one of Harare’s popular night spots. An evening in the avenues is characterized by prostitutes hovering in the streets posing for clients whilst stark naked in most instances. It is a red light district in terms of prostitution although it has not been officially declared so. It has been termed ‘Jacaranda’ as it has so many Jacaranda trees which also metaphorically represent the variety of cultures and ways of life that exist in the area.
The reason that these two contrasting areas were identified as areas of this research was so that there would be a comparison to see if the experiences of the prostitutes differed depending on the location. Both areas have a hyper night life which has resulted in the areas also being hosts to prostitutes. This study mostly concentrated on the prostitutes that operated from the streets and bars (nightclubs) in these two areas with the exception of a few that operate from their own homes and hotels.
1.4 Significance of the Study
Despite the law that criminalises prostitution in Zimbabwe, it is universally practised as though it is a legal activity. On embarking on this research my aim was to really have an insight as to women in prostitution’s experiences with the law and the implication that it has on the prostitutes themselves.
With the American dollarization of the Zimbabwean economy more and more people were pushed below the poverty datum line. Without formal employment the US dollar is difficult to come by so it became of interest to study the experiences of the women in prostitution as their numbers seem to have increased. In the same vein it was then necessary to assess if there is need
4 for a reform or review of the law informed by the women in prostitution’s experiences against some multifarious realities faced by most women in Zimbabwe in particular socio and economic marginalization.
1.5 Research Objectives
The specific objectives of this research were:
1. To critically analyze the current law on prostitution including its relevance and purpose.
2. To critically analyze why women engage in prostitution.
3. To find out from the prostitutes themselves their views on the current criminalization of prostitution.
4. To assess how the law on prostitution affects the way the prostitutes conduct their business
5. To make recommendations on the law that draw from the lived realities of women in prostitution in view of the respect of their human rights.
1.6 Research Assumptions
This research was informed by the following assumptions:
1. The current law on prostitution has become a toothless bulldog as it has failed to curb prostitution.
2. Women enter into prostitution because of socio and economic reasons and this should be the basis for decriminalizing the practice.
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3. Women in prostitution are autonomous and have control over their sexuality and as such they enter into prostitution because they want to and do not want to be criminalized.
4. The law on prostitution makes it difficult for women to make maximum profits from their business as they trade with fear and without any legal protection.
5. Decriminalization of prostitution will ensure that women in prostitution are free to engage in their business without any fear of violence or continual harassment from the police thus protecting their human rights to exercise their sexual citizenship.
1.7 Research Questions
The research questions which guided this research as informed by the assumptions were as follows:
1. Is the law on prostitution relevant and serving a purpose?
2. Why do women engage in prostitution? 2.b Do the socio and economic reasons justify decriminalization?
3. Do women see prostitution as an exercise of their right of choice thus impacting on how they view the criminal element of it?
4. Does the law on prostitution affect the way prostitutes engage in their business?
5. Is decriminalization the answer to prostitution given women’s lived realities?
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1.8 Definition of Key Concepts
Prostitution
In Zimbabwe the word ‘prostitution’ is not defined in the Criminal Code, whether this was an accidental omission or a deliberate one would constitute interesting research but is not the point of this research. Traditionally the word prostitution came from the Latin word prostitute which is derived from the words pro + statuere which means to cause to stand, ‘to set in place’, which refers to the practice of standing in public to solicit clients. The word prostitute then means to publicly expose or to offer for sale. (LAC, 2002, 1). For the purposes of this research the definition adopted is that which is set in section 138 of the Ugandan Penal Code which defines it as, ‘a person who, in public or elsewhere, regularly or habitually holds himself out as available for sexual intercourse or other monetary gain.’
The term ‘prostitute’ is used interchangeably with commercial sex worker in this research. Sex worker is a more conventional term and clearly shows that prostitution is a form of work and these days in the human rights circles this is a more acceptable term. The reason why I insist on still using the term prostitute is that it is what it is and society regards it as such and the women involved call it that and they identify themselves using this term.
Sexual Agency
“Agency refers to the woman’s free will and their ability to make decisions about their circumstances and how they will use their body” (Sanders et al 2009, 23). It is also viewed as the ability of a person to challenge oppression.
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Autonomy
This is the ability to make a decision without being influenced by anyone. Prostitutes are able to decide whether they want to engage in a certain type of sexual act without being influenced by their clients. It also denotes an element of independence.
Sexuality
It is defined as the central aspect of being human throughout life and encompasses sex, gender identities and roles, sexual orientation, eroticism, pleasure, intimacy and reproduction. Sexuality is influenced by the interaction of biological, psychological, social, economic, political, cultural, ethical, legal, historical, religious and spiritual factors. (WHO, Technical Consultation Definitions, 2004)
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CHAPTER 2
2.0 LAW AND LITERATURE REVIEW
There is so much literature that has been written on prostitution which reveals so many controversies and contradictions that are embedded in the subject. The laws that govern prostitution also differ in the world as different approaches are taken from legalizing prostitution, decriminalizing it to criminalization as is the scenario in Zimbabwe. The discussions enunciate the different concepts that arise during discussions on prostitution such as ‘choice, violence, agency, labour, morality, identity, disease, commoditization, exploitation, discrimination, immigration, colonialism, globalization, pleasure, tourism…’ as stated by Tamale (2008, 6). As this study focuses on adult prostitution the literature and law that will be reviewed will focus on adult consented prostitution, laying out what has been written and analyzing its relevance for this current research.
2.1 A Brief Historical Analysis of the Laws on Prostitution
This section will look at the origins of laws on prostitution so as to get a general overview of the mischief which the law intended to address and then compare with the current status quo. Sanger W.W (1913) writes that regulation around prostitution probably started in Rome around the 3rd Century BC. This shows that prostitution has been around for a long time and so for it to be outlawed is a mammoth task. Provision was given for prostitutes to be registered and those that did not register were arrested and when found guilty they would be evicted from their city.
Although the early Christian church viewed prostitutes as immoral beings they did not outlaw them (Jordan, J 1993). It is believed that the so called early church fathers were of the opinion that prostitution was a necessary evil and that men’s access to them had to be facilitated (Jordan, J.1993). The fact that prostitution was tolerated resulted in legal mechanisms which sought to regulate and contain prostitution as opposed to eliminating it. However protestant reformers were
9 not in agreement as they condemned prostitution and sought to suppress it by levelling criminal sanctions against it (Milton, 1994). This impression points to the fact that the approach adopted towards prostitution is largely determined by society’s attitude. Common law criminal sanctions did not exist prior to the 19th Century for prostitution (Milton and Cowling, 2005). This therefore means that this phenomenon is fairly new.
Prostitution law has been viewed as a patriarchal tool reflecting societal control and regulation of female sexuality (Tamale, S, 2008). It has also been noted that prostitution laws are bound to fail in curbing prostitution as they are based on sexual moralistic arguments (Shaver, 1994). The laws on prostitution in Zimbabwe were formulated during the colonial era when the intention was to curb the inflow of men and women into towns. This kind of law puts into perspective the basis of the law on prostitution which basically seems to be regulating women’s lives in the public sphere in a bid to domesticate them. This is the approach that has been adopted by the Zimbabwean Criminal Code which criminalizes solicitation for the purposes of prostitution in section 81 (2) which reads as follows:
(2) Any person who publicly solicits another person for the purposes of prostitution shall be guilty of soliciting and liable to a fine not exceeding level five or imprisonment for a period not exceeding six months or both.
‘Publicly solicits’ is thus defined as:
(a) solicits in a public place or any place to which the public or any section of the public have access; or
(b) solicits by publication of the solicitation in any printed or electronic medium for reception by the public.
As stated by Mandangu, J (1999, 10) this is very difficult to prove and it is usually the officer’s word against that of the prostitute. This has resulted in corruption by the police officers who extort money in the form of bribes from the women in prostitution so that they do not arrest them. Some police officers even go as far as demanding for sex in exchange of the prostitute’s freedom. This results in the exploitation of prostitutes which is against the spirit of CEDAW which specifically denounces exploitation of prostitution in women in Article 6.
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2.2 Feminist Perspectives on Prostitution
This study was premised upon the different feminist perspectives on prostitution so it became necessary to review feminists’ writings on the subject. As with many issues within the feminist movement there are great disparities in opinions regarding prostitution and this research sought to engage with feminist theories in a bid to see where the prostitutes placed themselves.
The mainstream argument against prostitution alleges that prostitutes are exploited, degraded, immoral and ignorant victims. Kuo, (2002) however acknowledges that such broad generalizations about prostitutes are as inaccurate as those about ‘women’ as a class. Bundling prostitutes together and regarding them as victims fails to acknowledge that prostitutes are not a homogenous group; they are all different although commonly performing the same acts. Some studies reveal that some prostitutes ‘feel empowered in their position and identify with feminist values such as independence, financial autonomy, sexual determination, personal strength…’ (Fechner, H,B, 1994). Prostitution may be seen to symbolize a range of threatening social changes associated with urbanization which are viewed as violations of norms and beliefs about female domesticity (O.de Zalduondo). This then results in so much condemnation about it. Those that have at one point or the other tried to speak about reforming the law on prostitution have been dismissed as wanting to adopt westernization.
Anti-prostitution feminists hold that prostitution is a form of exploitation of women and male dominance over women, and a practice which is the result of the existing patriarchal societal order. These feminists argue that prostitution has a very negative effect, both on the prostitutes themselves and on society as a whole, as it reinforces stereotypical views about women, who are regarded as sex objects to be used and abused by men.
Radical feminists are of the opinion that prostitution cannot be viewed as a legitimate choice as they allege that is a false choice as ‘patriarchy clouds all women’s judgments’ (Warnick, A 2003). In this respect personal choice to prostitute is then seen as false consciousness as they
11 believe there is no-one who in their right senses can make such a decision. However this assertion concludes that women are incapable of making decisions for themselves as their thoughts are disregarded. This is to the effect that women are seen as people who do not know what is right for them which somehow contradicts the whole notion of feminism which is said to stand for ‘equality, rights, liberty, autonomy, dignity , self realization, recognition, justice and freedom’ (Dietz, M. 2003).
One of the feminists who hold strong beliefs against prostitution is Catherine Mackinnon who is of the opinion that if prostitution is really a matter of choice, why is it that women who find themselves with limited choices are the ones who opt for it? She believes that it is a misrepresentation to say one chooses to be a prostitute but that one is just forced by situations and circumstances such as high level of poverty and lack of education to engage in prostitution. Money in her view will now act as the force as physical force in rape and cannot be likened to consent (Mackinnon, C, 1993). This however becomes the basis of others arguing that since women have limited options they should be allowed to make decisions to engage in prostitution or not and the law should protect them and not leave them in a far off worse situation by criminalizing the act. Sullivan, B (2000) states that, ‘In the academic literature on prostitution there are very few authors who argue that valid consent to prostitution is possible.’ The reason is that radical feminists believe that one can never consent to their own oppression as they view prostitution as a form of oppression.
Doctors For Life, (1997) concluded that prostitution reduces women to a mere commodity which can be purchased by and dumped by men willy nilly as they please. This therefore reinforces the ‘subjugation’ and ‘subjection’ of women by men (Forro, V.2005). In light of this, radical feminists or abolitionists as some would call them have been criticized for failing to recognize that prostitutes have an element of agency in them, they are not always victims but at times they are survivors in the game. The subject on prostitution is highly contested and counterarguments are the order of the day. In this respect the aspect on sexual agency is challenged and O’Connell Davidson (2002) states that her research revealed that there is no reason to celebrate the existence of a sex market. On the contrary it seems that there are a lot of things that cannot be celebrated like sweeping the streets, domestic work and cleaning public toilets and yet they are
12 still seen as work (Ava Caradona, 2008). This is an aspect which this research sought to unravel that women in prostitution find prostitution the best option amongst the bad options that are available to them.
Pateman, C. (1988) identifies prostitution as a contract which is a source of women’s oppression rather than a site of their freedom. Kathleen Barry quoted in Doezema, J. (2005) stated that sex in prostitution, ‘reduces women to a body’ and is therefore harmful whether there is consent or not. Prostitution is thus viewed as injurious as the sex is seen as dehumanizing and degrading. However this mindset in a way silences prostitutes who do not view prostitution in that light. It therefore denies prostitutes any sense of existence. Prostitutes are considered people in need of help by radical feminists who see the need for them to be rescued as they are seen as dirty. Hoigard and Funstad(1992) refer to prostitutes’ vaginas as garbage can(s) for hordes of anonymous men’s ejaculation illustrating how dirty they are. This therefore leaves prostitutes in a worse off position as they are seen as disgusting without paying much attention to their voices.
Liberal feminists hold that prostitution can be a valid choice for women and men who choose to engage in it. In this view, prostitution must be differentiated from forced prostitution, and feminists should support against abuses by both the sex industry and the legal system. Kempadoo and Doezema (1998) are of the opinion that for prostitutes to be able to enjoy rights that are enjoyed by all those in the society there is a need to recognize prostitution as legitimate work. Doezema, J. (2005) is of the opinion that the maintenance of prostitutes as a separate entity under criminal law reinforces their treatment as outsiders, as people to whom the protection afforded to others under the law can never apply. This actually means that prostitutes have to be treated like rights holders so that they have recourse when their rights are violated. Zimbabwe in fact has a non-discrimination clause in its Constitution (Section 23), which therefore means that there should be efforts not to sideline prostitution as this amounts to discrimination.
Harrison R (1999) critiques arguments by radical feminists, maintaining that they parallel and inadvertently reinforce the Victorian construction of sex workers as sinful/immoral whores juxtaposed from the purity and chastity of the ‘Madonna’ image.(Tamale, S. 2008). In light of this prostitutes are seen as going against the set standards of a good woman while the Madonna
13 image reinforces the good woman who is domesticated. Unlike abolitionists who argue that all prostitution is violence without paying regard to the consenting adults’ choice, the prostitutes themselves argue that there is clear cut distinction between voluntary prostitution which should be regarded as work and forced prostitution which should then be viewed as violence.
Liberal Feminists view consent as the basis of legitimate social contract and if prostitution is denied this meaning then certain questions arise. When is someone autonomous? When is choice truly free? Can we ever be said to act on our own volition? (Doezema, J. 2005). Answering these questions inevitably gives a human face to prostitutes. In light of this prostitution is seen as providing women with, ‘liberty that is immediate, affirming and temporarily rewarding’ (Tong, R.1989). Liberal feminists also assert that criminalizing prostitution exposes the prostitutes to violence as she lacks protection before the law. This research, to a greater extent identifies with liberal feminists.
2.3 A Reflection on African Sexuality in relation to Prostitution
Prostitution is a highly contested form of sexual expression; whilst it is widely practised it is also widely condemned. For millennia, Africa has been a part of Europe, as Europe has been part of Africa, and out of this relation, a whole series of borrowed traditions from both side has been and continues to be brewed and fermented (Bakare-Yusuf 2003:140). There has been so much influence from the west on our perception and interpretation of sexuality in Africa. Victorian women were not allowed to freely express and experience their sexuality and they were dressed in such a way that would not expose their sexuality. Women who acted to the contrary were branded prostitutes or courtesans (Wolf 1991,Rees 1977) in (Tamale, S 2011) and this was adopted in Africa when we were colonized and has been the trend up to this date.
Gayle Rubin’s concept of sexual hierarchies is very useful in analyzing African sexualities as she explains how society classifies sexual behaviour in a hierarchical order in which ‘good, normal, natural and privileged sexuality must be heterosexual, married, monogamous, procreative, non- commercial, in pairs, in a relationship, in private, bodies only, same generation’ (Rubin 1984).
14 Weeks, J (1989) also notes that sexuality is shaped by a ‘mythical division into the private and public sphere, the private sanctioned by marriage and regarded as the model and pure and the public the space of prostitution.’ When any sexual act falls outside these precepts it is regarded as ‘damned, abnormal, unnatural and bad’. Consequently those that do not conform face legal and social sanctions as well as maltreatment as happens with the laws on prostitution which are intended to curb prostitution and eradicate the practice.
Sexuality is premised on traditional norms and values and a woman ‘must be married to one man, bear him children, work for the home and be a good wife’ (Magaisa, 2001). In her research Magaisa indicates just how the single status for females is stigmatized getting such labels as prostitutes in Africa, labels which single men or even men who have more than one sexual partner are free from. Although both women and men have their sexuality controlled in Africa men have room to manoeuvre and exercise autonomy without much interference from society. Women are more restrained in exploring their sexuality (Helle-Vale, 2005). In Zimbabwe a woman should be married and sex before marriage is generally frowned upon as they will be regarded as partaking in a sinful act and eating the forbidden fruit. Women are damned for having sex with more than one partner and yet in contrast men are virilised for it.
Prostitution has been under severe attack as it challenges the notion of the good woman who is expected to be pure, chaste and be faithful to at least one sexual partner (Nagel, 2000). The label, ‘hure’ denigrates women to some dirty, notorious woman and some have even labelled them, ‘bonga’ which is a wild cat so they are likened to a wild cat implying that they have rebelled and gone against the norm which is not acceptable for a woman. Sexuality has been regulated formally and informally through the church, the state, and the regulation of marriage, divorce, illegitimacy and incest (Weeks, 1989). The nexus that exist between sex, marriage and reproduction greatly contributes to the regulation of any other practice that fails to be conventional.
In Africa female sexuality is crowned in the realm of marriage and reproduction. Labels such as the ‘virtuous woman’ and the ‘fallen woman’ are used to define sexual activity that either complies with or deviates from defined social parameters (Weeks, 1989). This in itself renders
15 women asexual beings who are only there to give sexual pleasure to men but who should not enjoy sex or want to have any sexual desires. When a woman then decides that she wants to have sex with as many men as she can for her own personal gain she then finds herself cast out of society. The law is then imposed to regulate a woman’s sexuality or, as one interviewee stated, ‘the law on prostitution together with such laws on abortion are meant to control women’s sexuality and should be abolished’. Unfortunately for patriarchy women are now taking charge of their own sexuality without really paying regard to what society says. Studies across cultures seem to hold the consensus that ‘acceptable’ female sexuality is that mediated through the framework of heterosexual marriage and procreation. In that regard sex work is regarded as destabilizing and deviant which then results in an eternal attempt to ‘reconstruct’ the sex worker through rehabilitative strategies (Tamale, S, 2008).
Weeks (1989, 35) observes that society has had numerous periods of moral panic and sexuality has been central in these with “sexual deviants” such as sex workers and homosexuals being “scapegoats” for broader social problems. He also observes that there is some degree of tolerance for sex work most of the time until a moral panic erupts and people want to see something being done about prostitution. There are so many churches emerging and there is so much effort presently to try and identify what is Zimbabwean away from what our former colonies dictated so debates about prostitution have once again become heated. The police are also out to arrest the women in prostitution in Zimbabwe as they are working to ensure there is preservation of morals which distinguish Zimbabweans from other nationalities. Khana and Price (2004) find that the zeal to criminalize prostitution in order to eradicate it is a clear way to regulate female sexuality and not male sexuality as illustrated by the criminalization of the act of selling but buying sex in Zimbabwe. This is as a result of the fact that minority sexualities have been viewed as western decadence, “unAfrican”, a result of colonization (Nyangairi, B, 2010)
The advent of Hiv/Aids resulted in focus being placed on prostitutes as they were regarded as vectors of the disease as sex has of late been linked to death as alluded to by Posel, 2003. There have been of late behavioural research paradigms that bring out a direct link between Aids and prostitution (UNAIDS 2006, Parker 2001). Mandangu, J.T (1999)’s research on whether there is a choice beside criminalization of prostitution in light of the Hiv/Aids pandemic however
16 challenges this notion as she discovered that there is no direct link between prostitutes and Hiv/ Aids as prostitutes demand to use condoms. Most of the studies go to great lengths to reveal that sex workers are among the so-called ‘high risk’ populations in the spread of Hiv (Tamale, S 2008). Tamale notes that there seems to be a pattern, which matches the emergence of Hiv/Aids with a corresponding increase in government surveillance of female prostitutes. This increases the stigma attached to the trade and thereby rationalize the advocacy for outlawing prostitution in our societies. This thinking and approach in Africa that prostitutes are the major drivers of Aids seems to have been challenged as Senegal, the only country in Africa which has legalized prostitution and reports the lowest prevalence rates of Hiv infection on the continent. According to UNAIDS report the country’s prevalence rate was 0.7 percent compared to 13 percent in Zimbabwe where prostitution is criminalized.
Prostitution is also viewed as a female problem and yet there are ready clients utilizing the service. Women are not to be sexually hyper but men are said to naturally have a great sexual urge which might not necessarily be able to be satisfied by one woman hence it is acceptable for them to pay for sexual gratification (Kinsey et al 1948 and Sion, A 1977). Thus men’s promiscuity is almost always approved whilst women are to be tamed and the law is thus a monitoring tool to ensure that women’s sexual activities are managed, a point which this research will unravel.
2.4 An Analysis of different Legal Frameworks on Prostitution
Central to all the controversy within prostitution is the question of whether it should be criminalized, legalized or decriminalized. Criminalization infers that prostitution is illegal in its entirety whilst legalization entails regulating and controlling prostitution as a legal practice and decriminalization refers to the act of removing laws against prostitution. Zimbabwe currently criminalizes prostitution. Authors have different ideas about what should be done whilst some feminists argue that legalization will control prostitution and reduce harm; others counter argue that it is unfounded as it is the same as saying domestic violence should be legalized so as to control it and reduce harm (Factsheet on the myths and facts about legal prostitution in Nevada).
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In many countries world over prostitution is criminalized. The main reasons that are given for this approach are that this will ensure that prostitution is either eliminated or decreased. The reality on the ground rebuts this presumption as prostitution is still on the increase and yet the criminal laws are still in place. Another reason put forward is that cognizant of the fact that it might not be practical to eliminate or lessen the practice, it is an immoral activity and the law then has to take a public stance to enforce morality (Kuo, L.2002). Criminalization then appears as an extension of government’s control of women’s bodily autonomy thereby functioning as a source of patriarchal control and ideology (Kuo, L.2002). It thereby acts as a way to silence prostitutes who then fail to organize. (Warnick, A.2003) also notes that criminalization marginalizes physical and sexual abuse claims of prostitutes as prostitutes are regarded as criminals.
Legalization sanctions prostitution with a degree of control which usually entails registration, determining how they should operate, regular health checkups. This system has the potential of stigmatizing and isolating prostitutes. Legalization usually results in non-compliance and studies that have been carried out in societies which have legalized prostitution like Germany, Peru, Switzerland and Mexico reveal that less than fifty (50) percent of all practicing prostitutes register.(Kuo, L.2002). Prostitution which falls outside the regulated frame is criminalized. In this way criminal law is used to regulate prostitution. Although registration of prostitutes brings about sanity and order in a community there is need to ensure that the process does not further stigmatize the prostitutes. It is also important to note that even when prostitution is legalized and regarded as a form of employment, labour laws do not automatically apply. If policies are not put in place to ensure that labour laws do actually apply to them then prostitutes still remain exposed with no protection.
Decriminalization which is another optional legal regime involves removing laws against prostitution with prostitutes being subjected to laws which apply to all employees and operating under no specific regulatory regime (Hughes, D. M.2004). With decriminalization, prostitution is affirmed as a valid form of employment while supporting women’s human rights not just as prostitutes but as full members of the society. Proponents of decriminalization believe that all
18 people, including sex workers, are entitled to the same rights regarding safety, health and human rights. Outdated criminal laws need to be reformed so as to improve the living and working conditions of sex workers. They argue that decriminalization is better for the workers than legalization as both criminalization and heavily-regulated legalization infringe on the workers' safety and human rights. Many feminists who support sex workers favour decriminalization because it allows prostitutes to go into business for themselves and self-determination is a tenet of feminist politics. They believe decriminalization fosters responsibility, empowerment, self- esteem and self-care, all important feminist values (Feminists for free expression). New Zealand is one of the countries that adopted this approach in 2003 which appears to be very laissez-faire.
Figure A: Diagram showing how Prostitution is treated in different Legal Jurisdictions throughout the World (SALC, 2009)
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Most countries in Africa criminalize prostitution as outlined in the table below which has taken a sample form some of them:
Table 1: Showing how some African States treat Prostitution
AFRICA AND PROSTITUTION LAWS Country State of prostitution laws Botswana Completely criminalized, it is illegal Ghana Not really illegal per se as it is not precise but inferences show that it is illegal Uganda It is illegal South Africa It is illegal Senegal It is legal, being the only country in Africa with such a stance.
In Africa prostitution is regulated, a situation which exposes women in prostitution to violence and discrimination.
2.5 Domestic Legal Framework
Prostitution is not stated as a criminal offence in terms of the Zimbabwean Law and the act of engaging in sexual intercourse for reward is not criminalized but section 81 of the Criminal Code (which shall be referred to as ‘the Code’ in this work) criminalizes solicitation for the purposes of prostitution:
20 ‘Any person who publicly solicits another person for the purposes of prostitution shall be guilty of soliciting and liable to a fine not exceeding level five or imprisonment for a period not exceeding six months or both.’
Section 82 of the Code also criminalises living off or facilitation of prostitution, but the act of prostitution is not criminalised in the Code. Although the Code does not precisely state that prostitution is a criminal offence, the fact that solicitation for the purposes of prostitution is criminalised renders prostitution a criminal offence.
Because the Code does not specifically criminalise prostitution, a person should not be arrested for being known to the police to be a prostitute but this happens more often than not. The arresting police officer needs to have a reasonable suspicion that the person has engaged in prostitution, which is difficult to prove. Homourable Thabita Khumalo who is championing for the rights of sex workers and pushing for decriminalisation has been arguing that the trade should be legalised as this would empower prostitutes to negotiate safer sex and help slow the spread of HIV, because they could then be tested, treated, counselled and educated about sexually transmitted diseases (New Zimbabwe online, 07/01/12).
2.6 Human Rights Framework
Prostitutes are human beings who are rights holders so they should enjoy the same rights as any other people. Women who sell sex seem to be viewed as obscure beings with no entitlement to any rights. Zimbabwe is expected to respect, protect and fulfil every citizen’s human rights especially as regards those who are vulnerable in society. Prostitutes deserve to be treated with dignity and to enjoy the human rights guaranteed to all people (Betteridge, G. 2005). Despite the need to realize the human rights of prostitutes, international human rights law has up to date, not provided sufficient protection for particular violations suffered by prostitutes (Csete J and Seshu, M. 2004). Most of the human rights Instruments do not really provide for respect of prostitutes’ human rights as most of them focus on forced prostitutes without having regard to the constituency which freely engages in prostitution. Article 4 (1) of the African Protocol on Women’s Rights states that:
21 ‘Every woman shall be entitled to respect for her life and the integrity and security of her person. All forms of exploitation, cruel, inhuman or degrading punishment and treatment shall be prohibited.’
Prostitutes are exploited and live in perpetual fear of arrest which is contravention of the African Protocol. Zimbabwe as a state party has to ensure that its citizens’ rights are protected and promoted and this includes prostitutes.
The 1986 International Charter for Prostitutes Rights (ICPR, 1985) states the following:
‘Decriminalize all aspects of adult prostitution resulting from individual decision. Decriminalize prostitution and regulate third parties according to standard business codes… Prostitutes should have the freedom to choose their place of work and residence.’
This World Charter was born out of the two World Whores Congresses that were held in Amsterdam and Brussels which epitomized a worldwide prostitutes’ rights movement and politics. In 2003, an article was published in the Journal, ‘Humanist’ which noted how the World Charter had become a template which was now being utilized by Human Rights Groups across the board (Klinger, K. 2003). The World Charter for Prostitutes' Rights calls for the decriminalization of "all aspects of adult prostitution resulting from individual decisions" (Kempadoo, K. and Doezema, J. (1998). The World Charter also supports that prostitutes should be guaranteed "all human rights and civil liberties".
Article 6 of CEDAW reads as follows:
‘States Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.’
This section focuses more on the exploitation of prostitution and not the suppression of prostitution which can be widely interpreted to mean that there is a form of recognition of non- coercive prostitution. Morocco put forward a proposal to amend this section so that prostitution would be abolished but it was opposed by Netherlands and Italy which led to its ultimate rejection (UN Special Report, 2000).
22 The interpretation that the Convention does not call for the suppression of prostitution per se is sustained by General Recommendation No 19 on violence against women prepared by the Committee on the Elimination of Discrimination Against Women. The Committee specifically addresses prostitution, and recognizes the economic basis of prostitution which therefore justifies protection of prostitutes:
‘Poverty and unemployment force many women, including young girls, into prostitution. Prostitutes are especially vulnerable to violence because their status, which may be unlawful, tends to marginalize them.’
The Committee notes in its General Recommendation No 24 Paragraph 6 that while biological differences between women and men may lead to differences in health status, there are societal factors which are determinative of the health status of women and men and which can vary among women themselves. CEDAW recommends that special attention should be given to the health needs and rights of women belonging to vulnerable and disadvantaged groups, which include women in prostitution. This is what MP Thabita Khumalo has been advocating for; universal access to health of prostitutes as quoted in the H-Metro, one of the mainstream newspapers dated 11 January 2012.
UN Special Rapporteur on Violence Against Women has indirectly dealt with the issue of prostitution in her reports on trafficking in women. In her 1997 report, the Rapporteur observed that:
‘Some women become prostitutes through ‘rational choice’, others become prostitutes as a result of coercion, deception or economic enslavement.’
In reporting on economic and social policy in relation to its impact on violence against women, the Rapporteur made the following observation:
‘Where prostitution is not legal, women are unprotected by labour laws. This means that they have no guarantee of being able to work in a safe environment and they have no right to social security. They have no right to reject clients and if they experience abuse, they have no means to take action against the abusers. It may not be possible for the women to decide on the use of condoms and thus they may be exposed to sexually transmitted diseases (STDs).’
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The report shows that there is some recognition for the need to protect and promote women in prostitution’s rights. There is therefore a need to ensure that prostitutes enjoy the same rights that are enjoyed by all human beings specifically women.
However there seems to be no agreement within UN on the stance to take as regards prostitution. UNESCO in Beijing in 1995 identified prostitution as a human rights violation which is in contrast with the UN Special Rapporteur’s report which notes that some women become prostitutes as a ‘rational choice’. This controversy is part and parcel of the great controversies and contradictions that surrounds the topic on prostitution.
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CHAPTER 3
3.0 THE METHODOLOGY FOR THE STUDY AND DATA COLLECTION METHODS
3.1 The Methodological Framework
Considering that the lives of women are affected by a plurality of norms various theoretical frameworks were adopted to analyze, explain, describe and understand the position of female, adult prostitutes in relation to the law which criminalizes prostitution in Zimbabwe. Because the topic of sexualities is often wrapped in silences, taboos and privacies, researchers need to hone distinctive techniques and methods that unearth invisible, silenced and repressed knowledge (Tamale, 2011). There was need to implore some of the methodologies that are not resorted to often to collect rich data from the field.
This research was informed by postmodern feminism as this values multiple voices, truths and realities as well as accommodating contradictions in women’s experiences (Baber,1994) as these differed bringing out the point that prostitutes are not a homogenous group. This fact also led to the use of qualitative methods of collecting data as every data that was collected was valued with its uniqueness. Given that the subject on prostitution is very sensitive, personal and widely despised, it was apparent that no single method of collecting data would suffice. Different methods of collecting data were resorted to depending on the people and the environment.
In carrying out this research there was need for the constant reminder that the interviewees had to remain as subjects and not objects of the research. There was need to introduce myself and tell the respondents that the research was being carried out for academic purposes and that this was in a bid to have the research influence policy makers in some way once it was published as regards rethinking the criminalization of prostitution. Reaffirming confidence in the interviewees became very necessary and I had to assur them that their identities would be kept private and confidential as they were afraid that they would find themselves in the newspaper especially the
25 H-Metro which is a tabloid which barges into and exposes people’s private lives as most of their relatives were not aware that they engaged in prostitution.
3.2 The Methodology for the Study
3.2.1 Grounded Theory
During the field research there was need to constantly engage with feminist theories that had informed my research and the women in prostitution’s lived realities. This was imperative in interpreting the collected data and to decide on which other data to collect. Having started the research by interviewing the prostitutes, the data that I collected from these women pointed to who else had to be interviewed so as to have a fuller picture of what really transpires in their lives. For example since this research was focusing on finding out whether there was need for a reform of the law on prostitution and whether this could be done in Zimbabwe it was necessary to interview someone from the Law Development Commission. In essence one interview was a pointer to the other interviews that had to be conducted. The collected data was constantly triangulated using the Grounded Theory Approach. Using the grounded theory approach it was also possible to see whether the assumptions that had been set out stood the test of time.
Bureaucracy interfered with the research as there was a need to get a clearance first from the Zimbabwe Republic Police to carry out the research as it was a research in an area in which most of my respondents were engaging in an illicit practice. The greater part of the field research was carried out without a police clearance because it took about three (3) months to finally secure a police clearance. The clearance was a nightmare, requiring that I undergo a personality check by the ZRP which actually involved them digging for my personal information such as where I originally come from, what High School I attended and who my friends were. Failure to secure the police clearance was not an option at all as it would have jeopardized the research since it would not have been possible to interview the police and yet these were key respondents gauging from the data collected. Women in prostitution kept referring to the police as problematic as they were obstacles in their pursuit to earn a living so there was need to hear the version of the police. Even with the police clearance, interviews with some of the police officers failed to be
26 informative as they were sceptical about divulging certain information claiming that they were uncomfortable commenting on certain issues.
During the field research in pursuit of finding out whether the law needed a reform so that the women in prostitution were not continually harassed there was need to gather information from both the sex workers and the police officers. This made it possible to engage with assumption five which stated that decriminalization would ensure that prostitutes work without fear of harassment and violence from the police. From interviewing prostitutes it had been raised that the moment the police officers knew that one was a prostitute they would randomly arrest them even when they were not soliciting and did not have a client. In triangulating this information a senior police official from Harare Central Police Station confirmed this practice which I thought was a human rights abuse. He said, in respect of these random arrests:
‘It is unfortunate but it happens because we know some of these women as regular prostitutes, they get arrested anyhow when they are just found out at night. It is just like when you see a pick pocket standing in a queue it is easy to assume that he wants to search people’s pockets. Definitely in such a scenario, we arrest that person because there is reasonable suspicion that he wants to commit an offence.’
Securing Interviews with some of the key informants was not easy as they were reportedly busy most of the time whilst some were just not comfortable during the interview. The current political environment made it difficult to secure interviews with legislators as they felt their responses could jeopardize their political standing as the topic is regarded as morally repugnant. Only one meaningful interview was held with an MP who is currently advocating for the decriminalization of prostitution in Zimbabwe and has been labelled controversial by people from all walks of life. She had been quoted in the mainstream media speaking out against the criminalization of prostitution in Zimbabwe which she says leaves the women worse off. As a result of using the grounded theory approach I had a better understanding of what women in prostitution went through in relation to the law. The third assumption which stated that women were autonomous beings who could freely choose to engage in prostitution was somewhat challenged as the data collected revealed that the choice was forced on them due to certain circumstances.
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3.2.2 Women’s Law Approach
This methodology was used in analyzing the prostitutes’ position within the law, society and family. The methodology was also key in exploring prostitutes’ lived realities as well as interrogate and investigate the law in this regard as enunciated by Tove Stang Dahl that:
‘…the existence of biological, social and cultural differences between women and men are not regarded as the main problem in women’s lives, but rather law and society’s systematic under-valuation of female activities, values and characteristics are seen as the main source of women’s subordination.’
(Dahl: 1987:13)
The approach was instrumental in making a critical analysis of the law as provided for in Section 81 of the Criminal Code and how it is implemented oblivious to women in prostitution’s voices and articulation of their experiences. Using the women’s law approach resulted in understanding the trajectories into prostitution with forces such as poverty and unemployment being the major drivers. This in turn showed how the law is crafted in such a way that it is far removed from the women as women enter into prostitution as a source of living. It was also possible to see how the law on prostitution is masochistic and does not put a human face on the practice of prostitution which in turn results on the law being so harsh.
Creating a very good rapport became an integral part of the research. Having a good rapport ensured that rich and extensive data was collected as enunciated by Spradley (1979) that people open up after developing a more profound rapport. It however has its own risks as a researcher is expected to keep a certain professional distance which was difficult during the research as I found myself developing relationships with the women in prostitution in order to win their trust. In some instances when random women had to be interviewed some of the interviewees expected to be paid for engaging in a conversation with them the cost of a short time (between US$5 and US$10 depending on the locality). This was really problematic as paying to get information could have had serious negative implications in that the prostitutes might end up saying what they might of thought that I wanted to hear rather than their real unaltered life stories. This
28 resulted in a failure to interview some of the women especially in the Avenues area where I failed to really have a close relationship with the women. This was not the case in Highfield where a good rapport had been created and most of the research was thus carried out in this area.
Identifying the women in prostitution was the toughest thing to do contrary to what had been anticipated that these women are readily available. Due to fear of being incarcerated or publicized in the media women in prostitution were sceptical about engaging in any discussions regarding their work. The fact that prostitution is criminalized resulted in the women in prostitution viewing the researcher with scepticism. Difficulties in conducting meaningful interviews called for re-strategizing and resorting to observation as a means and way to identify the women in prostitution as well as understand how they operate. Observation made it easier to understand the details of prostitutes’ everyday life without being intrusive but ‘seeing through the eyes of the subject’ (Brymen and Burgess, 1994). This ethnographic method of collecting data was observed to be very fruitful as it produces high quality in depth accounts of this sometimes secretive world (Nyangairi, B. 2009). Observing the women in prostitution running for their lives evading the police showed how the law on prostitution is negatively impacting on their lives.
Whilst at Tipperary Nightclub in the Avenues an observation was made as to how women in prostitution have very good relationships with the patrons at the club as they act as a form of defence and shield when any client (men) gets out of hand. Through observation women in prostitution were observed in ways they might have never been able to speak of, for example, the way they would strip in front of cars and gyrate their bodies to entice clients. No one ever mentioned this in any of the interviews that were held face to face. However collecting data by way of personal observation meant enduring many late nights of returning from my field research and recollecting what I had seen from memory and recording them. I could not very well stand on the streets or sit at bars recording my observations with a pen and paper! This was however very tough for the researcher who was pregnant and in the last trimester.
After having been in the field with an understanding of how the prostitutes operated it was now time for the interviews to begin and see how the assumptions were faring. Having tried to get
29 contacts of prostitutes from organizations that work with them the women were out of reach especially for those who worked from the Avenues area. This was not the case in Highfield where the mobile number for one woman in prostitution was called and she was so forthcoming and willing to be part of the research. In the Avenues area women who would be seen posing in the streets were randomly approached and this made them suspicious as they were worried that they might find themselves in the print media or worse still be arrested by non uniformed police officers. These fears reinforced the assumption that women in prostitution fail to make profits as they trade with fear and without any legal protection which calls for the review of the present piece of legislation. Before embarking on the research I was pre-warned against dressing in a conservative manner but this was not heeded. The experience on the first day which ended in ridicule as the women in prostitution simply kept on staring at me from head to toe in total disapproval became a lesson learnt. After this incident all the field research was conducted when dressed in less modest ways. All this experience was key in appreciating women in prostitution’s experiences in relation to the law and society as prostitution is criminalized and regarded as morally revolting.
Using the women’s law approach meant that the starting point was the women in prostitution themselves but this was very challenging as they could only be located in the evening. Most of the women in prostitution lived their lives like any ordinary woman during the day and thus were not comfortable chatting about prostitution in broad daylight for fear of incarceration and condemnation. In the evening some of the interviews ended prematurely as women in prostitution received clients during the course of the interview and the intention was not to interfere with their activities. One incident quickly comes to mind when a black Mercedes Benz parked across the road whilst conducting an interview, the fellow prostitutes started shouting to the lady I was chatting with:
“Tindo! Mhene yako yauya! (Tindo! Your rich client is here!)”
And she then excused herself. There was a need to respect the fact that they were out looking for clients. There was however temptation during the research to maximize on the information given during interviews regardless of the fact that these women were working and needed to raise some
30 income. Through self evaluation of the field work there was realization of the need to treat the interviewees as subjects and not objects of the research.
Individual interviews were carried out so as to have individual voices and explanations of experiences. Open ended questions were resorted to as these allowed for a detailed explanation and gave room to tap into other methods such as observation to understand women in prostitution’s experiences in totality. From the interviews conducted detailed accounts of women in prostitution’s experiences with the law were extracted and this allowed for an evaluation as to whether the law is still applicable or not buttressing the assumption that the law was a toothless bulldog which had become archaic as it has failed to curb prostitution. It also became clear that the law is far removed from the prostitutes themselves as the law only seeks to stop prostitution without paying particular attention to the forces which drive women into taking up prostitution as a means of survival.
Most of the interviews with the women in prostitution were not formal but were structured as open ended conversations which made the women relax and not feel as if there was an intruder into their lives. This allowed for collection of personalized accounts of the women in prostitution detailing their pathways into prostitution and how they operate within the context in which prostitution is a criminal offence. Through interviews I interacted with a lot of women which resulted in the collection of vital information. Buyers of sex were also interviewed to find out why they do so and the challenges which they face in engaging prostitutes as well as what they think of the law on prostitution detailing their experiences with the law per se. It was also necessary to interview the buyers of sex because the women had indicated that the men abuse them after utilizing their services so there was need to understand why they were blowing hot and cold. Connelly and Clandinin (1990, 25) emphasize that, ‘humans are storytelling organisms who, individually and collectively, lead storied lives.’ Thus women and men who engaged in sex work were left to tell their stories without any interference.
This method of collecting data came with its own complexities, because of the contradictions and controversies surrounding prostitution some women found it hard to really open up and share their experiences. At times during the interviews some of the women would just suddenly turn
31 quiet and there was need to either lighten up the moment with a joke or even offer to buy drinks or beer to sip through whilst having the interview.
In formulating recommendations, the women’s law approach was handy in establishing whether the realities of women could be addressed through changing certain aspects of the law or social reforms. The approach revealed how reality impacts on the understanding of the law and in this way helped in establishing what the answer would be for women prostitution’s concerns.
3.2.3 Human Rights Approach
The human rights approach was used in carrying out this research based on the notion that human rights are universal and indivisible. Anyone who is a human being including prostitutes deserves to enjoy all the rights that are conferred to a person by virtue of them being a human being and not an animal. During research, it therefore became imperative to investigate whether prostitutes as women are enjoying the rights that are extended to women under International treaties and agreements to which Zimbabwe is a party to. It also became necessary to find out the struggles around oppression and freedom in relation to women in prostitution.
Women in prostitution face a lot of discrimination and this research will indicate how using this approach it was possible to unearth the way prostitutes are discriminated against and also evaluate Zimbabwe’s commitment to some of the Human rights Instruments that they have ratified for example CEDAW. Ordinarily the label prostitute leads to the exclusion of women in prostitution as they are regarded as lesser beings. CEDAW commends state parties to take steps to eliminate discrimination against women of which Article 1 defines discrimination as:
‘Any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.’
32 This research also looked at how the discrimination that is suffered by prostitutes inherently results in the denial of other rights such as the right to health. Are women in prostitution treated the same as men who buy sex?’ This called for interviews to be done with prostitutes, buyers of sex, the police and the court officials. This was necessitated by the fact that laws are made by men for all so women’s lived realities are not reflected in most of these laws such as those against prostitution and the anti- abortion laws.
Sigma Huda in her report for the United Nations Commission on Human Rights also adopts the human rights approach:
‘The act of prostitution by definition joins together two forms of social power (sex and money) in one interaction. In both realms (sexuality and economics) men hold substantial and systematic power over women. In prostitution, these power disparities merge in an act which both assigns and reaffirms the dominant social status of men over the subordinated social status of women.’
This approach was also taken to consider how women in prostitution cease to be rights holders and therefore evaluating how the law on prostitution is in contravention with Article 2(g) of CEDAW which recommends state parties to ‘take appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women.’ Although it is so evident that women in prostitution suffer a great deal of violence and discrimination as a result of the law against prostitution, the government of Zimbabwe has not debated this issue at a formal level as has been the issue in countries such as South Africa and Namibia.
3.2.4 Sex, Gender and Law Analysis
Women and men are assigned different roles by society which creates an imbalance in society. Men end up being regarded as superior beings who are the ultimate decision makers. Women, because of society’s expectations are less educated and are not able to look after their children as they fail to get formal employment. In order for women to survive with their children, they are then turning to prostitution as a means of survival. People who now behave outside the norm are
33 regarded as rebels and the law is used as a tool of punishment. Where women were expected to be married and confined to the private sphere those that challenge this norm are then tainted prostitutes and regarded as outcasts. This approach ensured the understanding of why women are castigated for prostitution a position that is so different when it comes to men.
The law on prostitution treats women and men differently, where women are rounded up for prostitution men who buy sex are never punished for it, instead they are regarded as virile. This methodology was key in answering the research question whether the law on prostitution affects the way prostitutes engage in their business as the law is gender specific and biased. This approach also became relevant in crafting recommendations as these are sensitive to gender disparities that exist which the law has not paid attention to.
3.3 Data Collection Methods
3.3.1 Key Informant Interviews
Key informant interviews concentrated mostly on people who interacted with prostitutes at a structural and institutional level as they try to negotiate and manoeuvre through the criminal legal system. These included Bar Tenders, Magistrates, MP’s, Lawyers, Law Development Commissioner and the Police as well as NGOs. Using the key informant interviews it was possible to deduce both individual positions and institutional positions on the aspect of prostitution.
Through key informant interviews it was easier to understand the whole process in the arrest and the prosecution of a prostitute. Having interviewed the prostitutes who made allegations of bribes being asked from them by the police officers it became necessary to understand the whole procedure of arrest. Interviewing a Chief Inspector from Harare Central Police resulted in understanding the whole process of arrest which will be looked at in detail in Chapter 4.
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3.3.2 Focus Group Discussions
Dietz, M (2003) observed that focus group discussions (FGD’s) allow and encourage participants to discuss their viewpoints, beliefs and feelings. This does not mean that the group has to agree as individual thoughts are given room for growth. With focus group discussions exploration and examination of contradictions between group members is permitted. Having focus group discussions with prostitutes helped in lightening the heavier moments as it encouraged laughter about emotionally charged issues. Because of the sensitive nature of the topic where some people are not free to discuss about their very personal stories in a group only two FGD’S one with prostitutes when I was being supervised in the field and another one with buyers of sex in a beerhall in Machipisa, Highfield were held.
The Focus Group Discussions were so informative as it was possible to collect diverse thoughts from the group but it was however difficult to get each of the interviewees’ stories as some were very vocal which left others out and resulted in them failing to give their accounts. Some of the stories from the interviewees came out in bits and pieces. The views of those who are reserved were thwarted by the dominant speakers. After this experience it then became clear that the use of FGDs was not a good idea at all because in some instances there was failure to capture everything and it would not have been appropriate to ask them to repeat as it would kind of objectify the women. There was however a feeling that this method of data collection was therapeutic to other prostitutes who now understood that they were not the only ones going through whatever it is that they were going through. Some of the women were dealing with issues of HIV and AIDS and relating with women going through the same experiences relaxed their minds. Some of the women in prostitution narrated their horrifying stories and this must have benefited those that were going through similar experiences.
During the FGDs there was engagement with the feminist theories so as to get from the groups what the views of the feminists meant to them and whether they were identifying with either the liberal or radical feminists.
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3.3.3 Court Observation
As the research was premised on getting to have a deeper understanding of the experiences of women in prostitution as regards the law there was need to interrogate the Judicial System. The best way to do this would not have been anything better than attending court when prostitutes are appearing before the courts at Rotten Row Courts. The first observation was that all prostitutes admit guilty as charged when they appear before the court, I believe to a certain extend that they will be acting under the influence of instructions from the police investigating the case. Solicitation is difficult to prove but even if they have complains that on the particular day they were not soliciting they just plead guilty in court.
Four (4) Court sessions were attended and these revealed that women in prostitution have no other means of taking care of themselves except through prostitution. When the women were asked why they were engaging in prostitution they all said was:
‘My Honor that is how we survive, if we do not do that we will die of hunger…’
Women are forced into prostitution because of situations and circumstances that make it impossible for them to make ends meet. Through this method it was then clear that women in prostitution without a conscious move by the government to address some of the structural inequalities will never leave prostitution. Through court observation some of the women who had previously appeared before the court returned again after they had been warned, cautioned and given a wholly suspended sentence. When they were asked why they were finding themselves in court for the same offence they said:
‘Since it is our way of life, if we do not do it we will starve with our children…’
Surely punishing them revealed that it has shortcomings as it does not address the root causes of why in the first place they are out in the street.
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3.3.4 Desk Research
Before embarking on this research it was really necessary to embark on a desktop review of literature that exists on the topic. Most of the research that exists concentrates on the developed world where there are already platforms to debate around such issues. The desktop review provided the backbone for this research. The desktop review exposed me to the contradicting feminist views on prostitution and these were utilized in finding out from women in prostitution if they identified with any of the schools of thought that exist. There is wealth of information available, more than I thought existed prior to engaging in this research. The challenges that exist are that the schools of thoughts are so divergent and the subject inundated with so much controversy that there appears to be no one right answer. The study was grounded on the research in the available literature but then contextualised within Zimbabwe and with particular attention given to the Criminal Code which criminalises prostitution.
3.3.5 Language
Foucalt (1976) noted that it is through narratives and language that knowledge (and hence power) is produced. It was a mammoth task to translate all the data that was collected from Shona to English as this in some instances resulted in losing the ‘rich cultural connotations and ambiguities when translating’ (Tamale S 2011). There are words and expressions that the women in prostitution use in their everyday life which were difficult to translate into English as I was afraid of the original meaning being lost. The expression such as, ‘kutengesa pakati’ was often used to explain the act of exchanging sex for money. Directly translated it means ‘selling the middle’ which does not mean a thing. Sechrest et al (1972, 41) summarises the challenges encountered in this study i.e. during the research and the writing up of the field diary and narrative,
‘Vocabulary equivalence must take into account language as used by respondents and the possibility of terms lacking equivalents across languages. Equivalence in idiom and in grammar and syntax may be important, but equivalence in terms of experiences and
37 concepts tapped is probably most important of all. Direct translation cannot be assumed to produce equivalent versions of verbal stimuli.’
There was a great struggle to ensure that the women in prostitution’s voices were not lost so that their stories remained rich and told the real story. The crudeness of the language became a challenge as it was difficult to come to terms with it. I remember with great vividness how I would write and rewrite my field diary and narrative ensuring that the vulgar words were left out. There was then a deliberate move to leave out words such as, ‘kukwira’ which means having sex but when said in Shona (a local vernacular) like that it really shows no attachment and connectivity, it is just having sex which reveals how prostitutes engage in sex that it is purely business with no strings attached. I acknowledge that leaving out these vulgar words ‘waters down’ the whole meaning attached to particular words as stated by Behar (2003). Some of the words used by prostitutes in this study were watered down as they were too graphic. Sometimes I suffered the dilemma of choosing whether to include or exclude certain words which sounded crude and pornographic and somehow inappropriate to be included in academic research.
Another challenge was how women in prostitution would be addressed in this study. In Shona the words I knew were all crude so during the first days there was fear that they would be offended but to my surprise they did not mind. One of them said,
‘Usanetsekane tiri mahure, taura hako kuti hure. (Do not trouble yourself we are prostitutes, call us prostitutes).’
They seem to have internalized the names that are levelled against them and do not mind the labels although some women’s rights activists prefer them to be named Commercial Sex Workers (CSW) but in this study they are referred to as prostitutes as they found nothing wrong with that term.
3.3.6 Ethical Considerations
In carrying out a feminist research there is a likelihood of the existence of a power imbalance with the interviewees. I had to remain conscious that they did not become objects of the research
38 but always remained subjects of the research. There was a need to ensure that there was no exercising ‘power over’. The first thing that was prioritized in breaking these power gaps was to really get to know the women that were being interviewed and sharing my life stories with them so that they also got to know who I was: a woman genuinely interested in them and their plight who was trying to help them; I was not an impersonal academic researcher. This attitude helped to equalize the power relations between us, as stated by Oakley, A. (1981).
The methodologies and methods that were utilized in carrying out this study ensured maximum capturing of the women in prostitution’s rich experiences.
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CHAPTER 4
4.0 MAIN FINDINGS AND ANALYSIS
This chapter presents the main findings from the research and outlining what these mean in terms of the research. There will be a clear analysis indicating how these findings answered or failed to answer the research questions. This chapter looks at the trajectories into prostitution which justify why prostitution should be decriminalized, the implications of the criminal law on prostitution on the income realized by prostitutes among other themes. The structure of this chapter is informed by the categorization of data that clearly laid out the different categories of data that had been collected.
4.1 Application of the Law and Experiences with Law Implementers
Arrests, Payment of Fines and Prosecution
The first assumption underlying this study challenged the provisions of the law citing that they had become nothing but a toothless bulldog as the law failed to curb prostitution. This subsection looks at how arrests, payment of fines and prosecution of cases has not curbed prostitution but has rather frustrated and harassed women in prostitution. In the interviews that were held with women in prostitution it was clear that they had been arrested numerous times in their lifetime that they had lost count and yet there they were still engaged in prostitution.
Section 81(2) of the Zimbabwean Criminal Code states that:
‘Any person who publicly solicits another person for the purposes of prostitution shall be guilty of soliciting and liable to a fine not exceeding level five or imprisonment for a period not exceeding six months or both.’
40 In this regard a person caught prostituting is guilty of a criminal offence and they pay a fine not exceeding level 5 which is US$200 or can be imprisoned for 6 months and below. The women in prostitution complain of arbitrary arrests by the police even when they are not soliciting. One of them said:
“The Police just arrest us as they wish even when we do not have a client but the fact that they know I am a prostitute makes them arrest us without any reason. I remember last month I was with my real boyfriend and I was accompanying him to the bus terminus and I was just arrested for soliciting. My boyfriend then paid the fine for me.”
In this regard women’s freedom of movement and association is curtailed as any woman can thus be arrested if seen walking at night in the Avenues area or in Machipisa. These arbitrary arrests have a serious implication on their finances as one of the stated:
“When the police are really out to arrest, it is difficult to get clients and it then makes it difficult for me to raise money for my children and myself.”
This then confirms the assumption which stated that the law on prostitution makes it difficult for women to make profits for fear of incarceration.
Arbitrary arrests which result in failure to raise adequate money for their subsistence worsens their financial status. This then exposes them to diseases such as Hiv because when they get a client who wants ‘naked’ or ‘wet’ sex (sex without protection) and they are cash strapped they will be tempted to accept without regard to the high price of engaging in such risky sexual behaviour. During my research it was evident that the police officers are so committed to arrest the prostitutes as they are always roaming the Avenues area and Machipisa in large numbers in a bid to arrest anyone they suspect of being a prostitute.
When women in prostitution are arrested they are required to pay up to US$20 twenty dollars as an admission of guilt fine. For them to raise this money they will have to have had to have engaged in short time sex with four (4) partners if they are from Machipisa and two (2) if they are from the Avenues area. In most instances though they alleged that they just give the police
41 officer a smaller amount of money as bribe so they can be released. Zimbabwe ratified the ICCPR which in Article 9 clearly stipulates that everyone has the ‘right to liberty and security of person, and the right not to be subjected to arbitrary arrest and detention’. Zimbabwe is in contravention of the spirit of the ICPR as outlined above when police officers simply arrest women they know to be prostitutes (but are not engaged in prostitution at the time) and detain them during periods when they are likely to engage clients and release them later when they are unlikely to find clients. This is an example of pure police harassment calculated to victimise prostitutes financially (or otherwise) simply for being prostitutes.
Arrests, payment of fines and prosecution do not deter prostitutes. Women in prostitution still go back to the streets after they are charged and have served their sentence or have been given a judgment. The experience from the field research showed that women engage in prostitution the night after they have appeared before a court. Prostitution therefore reveals that it is a diehard habit which the women will never abandon. For as long as the law on prostitution continues to treat the symptoms and not address the root causes of why one engages in prostitution it is misdirected. Statistically at the Harare Central Police Station an average of one hundred (100) women are arrested every month and of these only thirty (30) are taken to court for prosecution. There might actually be more women who are arrested but these are not captured as most prostitutes indicated that they give a bribe to the police for their release.
Zimbabwe has ratified CEDAW which encourages state parties to take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women and to repeal all penal provisions that constitute discrimination against women [Article 2(g)]. The law on prostitution discriminates against women whose acts are problematised but men are rarely apprehended for utilizing these services. Zimbabwe as a state member of CEDAW should revisit the law on prostitution so that women in prostitution do not get arrested as it affects their income.
Article 6 of CEDAW mandates state parties to take all appropriate measures, including legislation, to suppress all forms of trafficking in women and exploitation of prostitution of women. Combating trafficking in women and exploitation for the purposes of prostitution is one
42 of many legitimate measures for protecting women against discrimination. Thus the mischief to be addressed is exploitation, not prostitution. Prostitutes are finding themselves exploited at the hands of law enforcement officers as they try to beat the criminal justice system. Women in prostitution exchange sex for freedom. In an article which was published on Zimbabwe on line entitled, ‘Prostitutes rap sex-for freedom cops’, it was reported that Police officers are demanding US$10 or sex to release the prostitutes at night. This therefore affirms the assumption that is of the view that decriminalization of prostitution will ensure that prostitutes do not experience continual harassment from the police.
Because prostitution is criminalized the women in prostitution are left exposed which thus results in their exploitation. The enforcement of the prostitution law results in the frustration of prostitutes; it does not cause them to abandon the activity.
Prostitution and its Challenges
Prostitution is seen as a practice which leads to serious negative long term effects for the prostitutes, such as trauma, stress, depression, anxiety, self medication through alcohol and drug use, eating disorders and a greater risk for self harm and suicide by radical feminists. They also see prostitution as a practice which is exploitative as prostitutes have sex with customers who they are not attracted to thus exposing prostitutes to violence. One of the interviewees noted:
“It is sometimes difficult to sleep with someone you have no feelings towards but knowing that I am doing this for the money gets us going, at times their feet are smelling or the men are just not attractive. I sometimes just find myself crying asking myself what is it that I am doing, my mother just had sex with my father only and had 11 children but I cannot even count the number of men that I have slept with.”
This just showed how women become highly depressed by engaging in prostitution as propounded by radical feminists.
Andrea Dworkin an ex-prostitute herself, stated her opinions as:
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‘Prostitution in and of itself is an abuse of a woman's body. Those of us who say this are accused of being simple-minded. But prostitution is very simple. (…) In prostitution, no woman stays whole. It is impossible to use a human body in the way women's bodies are used in prostitution and to have a whole human being at the end of it, or in the middle of it, or close to the beginning of it. It's impossible. And no woman gets whole again later…’
In light of this radical feminists have said that women use alcohol or drugs to cope. When I put it to the women I got varied responses, Hatibviri*, who is now forty three years old, said:
“I have never taken beer whilst at work, I engage in prostitution whilst sober so that I know what I am getting myself into. This is what has kept me long, I have never engaged in unprotected sex and I am afraid that if I drink a man can easily take advantage of me.”
Another woman said:
“When I started prostitution I never used to drink but I realized I was too shy and men used to take advantage of me. Now I can easily say to a client can I see your wallet so as to confirm that he is able to pay for the services that I will render to him.”
With another also indicating that she cannot engage in prostitution whilst sober, this then shows that women in prostitution sometimes make an effort to disassociate themselves from the sexual acts in which they engage.
On the contrary these women also alleged that, unlike Mackinnon who says sex work is entirely controlled by the purchaser, they had control of their sexual acts. They did not engage in acts they felt uncomfortable with and they could easily tell the buyer to, ‘please hurry up your money has finished,’ this is usually done to clients who will have paid for short time but keep on ‘banging’ them on end when they will be wanting to get on to the next client.
The field research revealed the contradictions that exist in prostitution as the prostitutes had different and distinct experiences and interpretations of their experiences.
44 4.2 Pathways into Prostitution
Many different authors have proffered a number of reasons that lead women into prostitution and to successfully problematise the law that criminalizes prostitution there is need to have a deeper understanding of the driving forces into prostitution. This allows different players to look at prostitution objectively without being too judgmental and looking at ways of objectively dealing with the aspect of prostitution other than just regarding prostitutes as criminals which will not achieve the intended goal of wanting to eradicate prostitution. This research also sought to answer the question why women enter into prostitution and whether the socio and economic reasons that push women into prostitution can be the basis for decriminalizing prostitution.
O’Neill (1997) shows that women have many different reasons for entering sex work and do so under different circumstances, a close analysis of these circumstances provides the interface between agency and coercion and what Agustin (2006, 34) terms the “conundrum of agency.” This “conundrum of agency” shows the tension, dilemmas and challenges faced in looking at choice and force. This section outlines the reasons that the women in prostitution tendered as being the driving forces to engage in prostitution. These ranged from social to economic determinants.
It was specifically necessary to understand in particular why women in Zimbabwe enter into prostitution. Trafficking, which has been outlined as one of the major recruiters of prostitutes in other studies did not present itself as an epidemiological challenge in this study.
4.2.1 Poverty and Financial (or Economic) Constraints
Entry into prostitution has to be understood against the background of women’s economic status as it serves as a means of economical survival for women with no skills. Economics seem to play a major role in directing a woman into prostitution. In Zimbabwe the situation has been exacerbated by the use of the US dollar which is difficult to come by to any ordinary person especially if they are not employed and are not running a lucrative business. The economic depression in Zimbabwe has left many Zimbabweans impoverished and living below the poverty
45 datum line. This has seen most women who in normal circumstances are impoverished finding themselves further down the economic ladder. One woman who has been in prostitution for 28 years noted:
“Poverty is driving us into prostitution, I had two children to look after with no source of income so prostitution became the way out and I managed to raise my children and send them to school.”
Another interviewee also indicated that:
“If we do not engage in prostitution we will starve with hunger. I was a cross border trader and so when ZIMRA confiscated my goods (second hand clothes) which I had imported from Mozambique I had no other source of income. I then decided that it was better to sell sex which I readily had with me and raise money to look after my children.”
Women in prostitution are driven into the practice due to financial desperation so criminalizing prostitution is like denying them the right to survival. This is their only source of income and the law should have regard to this fact in crafting penalties against prostitutes.
Economics really sticks out as a major drive into prostitution for women as enunciated by Hollibaugh, (1988) who said that the
‘… bottom line for any woman in the sex trade is economics. However a woman feels when she finally gets into life, it always begins as survival, the rent, the kids, the drugs, pregnancy, financing an abortion, running away from home, being undocumented, having a bad reputation, incest, it always starts as trying to get by.’
Out of desperation the women resort to prostitution to make ends meet as articulated by one interviewee,
“I realized that I needed money for food and rentals as I was being evicted from my rented apartment (two rooms) six (6) years ago. The money I am getting from my husband as maintenance is not enough to take care of my children and so I have to supplement with prostitution but my children think that I am a security guard because that is what I tell them.”
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This is a clear indication that it is about women trying to navigate the bad economic situation that our country is in. The social safety nets in Zimbabwe have disappeared, the Social welfare department is no longer able to help people in need so this then exposes women who resort to prostitution as a source of income.
On the question of economic gain during the research women were asked if they could not consider other options like domestic work or running a vegetable market but they revealed that these options have very low returns. This reveals a form of gender inequality that of low pay attached to most ‘women’s work’ (Sanders et al.2009, Gangoli, 2001). Chipo* stated that,
“I am married but I have my own child from my previous marriage. My current husband is not able to assist me to take care of my child so I cannot leave my child living in extreme poverty in the rural areas. I engage in prostitution when my husband is away and I then send the money home for my child’s maintenance. I will not stop prostitution, I tried it once and worked as a part time maid and I used to get $45-00 which I can get in one good night using my vagina. When I was a maid the working conditions were awful, my boss was always shouting and I felt like a slave.”
Chipo’s story outlines just how women see prostitution as their only salvation and realization of any economic gain. In a country like Zimbabwe where there is a high level of unemployment women are presented with few options and prostitution becomes the easy way out. In this context, prostitution may represent a viable alternative for women coping with poverty, unemployment, failed marriages and family obligations, especially where social welfare programmes are limited (SA Discussion paper on prostitution, 2009). The women that were interviewed charge between US$5-$10 for a short time and between US$20 and US$50 for the whole night depending on the locality and realize between US$200 and US$800 a month non- taxable. The Avenues area seems to be a bit more lucrative than Machipisa in terms of the money that is raised.
Because of dire poverty some women are left to engage in dangerous survival skills such as engaging in unprotected sex. The findings were that the women in prostitution insist on the use
47 of condoms as they actually carry boxes of condoms with them with some of them placed in their bosoms. This clearly shows that these women have a sense of agency in negotiating safe sex but when push comes to shove and poverty is screaming at them they compromise on this aspect if they see a client who is willing to pay more for unprotected sex. As one respondent explained:
“Some clients refuse to wear condoms so when we are really desperate e.g. knowing that rentals are due and we desperately need money and a client comes to offer let’s say $150 for the whole night where ordinarily one gets $50-00 we engage in unprotected sex. Our hearts really sink after the act because you will know the risk of exposing oneself to Hiv and Aids but it will also be difficult to resist the temptation.”
During the economic meltdown (about 2008 and just before the [American] dollarisation of the economy in February 2009) prostitution became lucrative for women and this might explain why there are so many women in the industry presently. As another respondent put it:
“I was a receptionist but when things really got bad in 2008 I could barely afford to pay my rentals, worse still send money home to my parents who are taking care of my daughter. I then started engaging in prostitution and quit my job and I have never regretted ever since. Before I was in the business full time I just had regular clients who would help me pay up my bills. I am glad that I am able to provide for my parents better than most people who are formally employed.”
This woman looks at herself as an achiever and does not see herself as a victim, in actual fact she has brought salvation from poverty to her family who look up to her. She identifies herself as a single mother a phenomenon that seems to have taken Zimbabwe by storm. This shows an element of agency as women in prostitution successfully escape from poverty and view themselves as victors and conquerors.
It is clear from the findings that women turn to sex work as ‘the only available means of earning money and many hold traditional family values, despite the stereotypes that are depicted about them in the media’ (Tamale, S. 2008). These women lead normal lives and on the face of it can even be very respectable in their communities. Sekai* indicated that,
48 “I am a prostitute in the evening but during the day I am a decent woman who is actually an active member of the church (mai veruwadzano). No- one knows this is what I do, if society knows it will despise me.”
Sekai like many of the women in prostitution financial crisis lands them in prostitution and yet they are like any other woman. It also depicts the reality of most prostitutes who find themselves in a Catch-22 situation where they have to make ends meet in a society that requires money to function and so barter trading becomes a doable thing. There are usually no easy answers for the women as they are confronted with either-or choices. Either they become prostitutes or destitutes!
4.2.2 Lack of Education and Skills
Economics, poverty, education and skills are so deeply and intrinsically linked that it is difficult to separate one from the other. Lack of education inevitably leads to high levels of poverty and lack of financial independence. Women face structural barriers in their pursuit of employment such as lack of education and requisite skills. Of the forty two (42) women in prostitution that were interacted with during the field research thirty seven (37) indicated that they did not reach form four (4) or if they did they had not managed to sit for the exams as the exam fee was not paid. Of all the women that I interviewed I only came across one woman who had a post secondary school qualification, a diploma in secretarial studies.
“I started prostitution when I was fourteen (14) years old when I had been forced to elope to a guy that I had been seen having sex with after school. I had only studied up to form two and did not proceed with my education. There is no way that I can try to look for a job today because who will employ a form two (ZJC) person.”
This resonates with Sanders et al (2009) who asserts that for many women the decision to enter sex work is based on limited options available to women because of the low skills; consequently they can only access lower paid work. As a result, this makes it difficult to place women on a forced/unforced binary as women find themselves stuck between a rock and a hard place. Most women in sex work have little formal education and sex work provides one of the few
49 occupations where they can make more money. This shows the few choices available to women and how sex work presents itself as a viable option open to women (Archavanitkul and Guest, 2006). “I knew it would be easier for me to be a prostitute as it does not require me to have a qualification because I only went as far as form two in my studies. Which other profession offers you a lucrative deal when you are not educated except prostitution, at least I do not steal from anyone. If I get a good job that can sustain me and my child I can leave prostitution.”
Mirirai* like most of the women in prostitution is not educated and prostitution has managed to keep her afloat. Although prostitution is not something that they would want to do all the days of their lives, it is a better option as they have no qualification or skills to rely on to secure employment. They get to earn lucratively on a daily basis and yet they are not educated. With an improved educational system that will allow many women to attend school to completion some of the women in prostitution will quit and the number of those that get into the profession would drop tremendously. There is therefore an urgent need to decriminalize prostitution with the appreciation that our educational system has loopholes and those that fall through will engage in prostitution to earn a living.
4.2.3 Disintegration of the Family Unit
Women have always been relational beings and so they rely on their families for support and thus when the family unit disintegrates they suffer the most. Previously when a woman’s husband died she would be asked to be inherited and then the whole clan would contribute toward taking care of the remaining family. With the present law that personalizes one’s rights over a late person’s estate women have been left out and feel the pinch more than any other family members. The lack of help which has led to the burden of care being placed on women alone has forced women into prostitution. It is this research’s argument that the law on prostitution is blind on the situation of women who are heavy laden with the burden of care.
Most families are no longer united, they are disoriented and women have to carry the burden of looking after their own families. The concept of the extended family has since lost any value that
50 used to be attached to it, and now people tend to concentrate on their immediate families and disregard their extended families. This has contributed to women taking up prostitution as a means to take care of their families single-handedly. Widows are also cast aside by their relatives who steal their inheritance after their husbands die as confirmed by Chemai* in the following words:
“My husband died in 2003 and his relatives took everything we had away from me. I went to the Chief to report but nothing materialized. After having been failed by the Chief’s court I resorted to the Civil Court with the hope that I would get our property back but it was to no avail as the relatives kept on sabotaging the case until I gave up. Even the pension funds were also taken by his relatives regardless of the three children that I had. I ended up engaging in prostitution so that I would be able to take care of my children. Right now my first born completed his A-level last year and the one that comes after him is doing her form 3 whilst the other one is in form 1.”
Chemai* shows that she has successfully raised her children and stands out better than a woman who is not a prostitute but is failing to send her children to school as is the trend nowadays. Another interviewee stated that she failed to proceed with her education when her parents died, no one could take up that responsibility in the family and so that led her into prostitution so she could make ends meet.
4.2.4 Neglect of the Duty to maintain Children by responsible Persons burdening Women
Gender hierarchies and structures of inequality came to the fore, more in the analysis of pathways into sex work. These were revealed in the power relations that govern sexuality and the prevalence of the double standard in society that privileges male sexuality above female’s sexuality. Thus, women in sex work were resisting sexual scripts of what is sexually acceptable and unacceptable for women (Baber and Allan, 1992).
The single mother phenomenon mentioned in passing earlier in this study is flourishing in Zimbabwe. It is however coming with a heavy price to women who find themselves stuck with
51 children whom they have to fend for without the assistance from the father of the child. Although there are some women who were not driven by the urge to take care of their children the majority of the women found this a force driving them into prostitution. Although it is not socially approved they find it as a legitimate justification for engaging in prostitution as noted by Tinopona*:
“When I fell pregnant my boyfriend chased me out of his house where I was living in with him. I was out in the cold with no parents to turn to. I did not have any money for food, rentals, buying preparation for the child and bookings for delivery. At four (4) months I decided to engage in prostitution and ever since I never stopped as this has become my source of income.”
The burden of care seems to lie solely with women and this exposes them to the harsh reality that they have to procure employment to cope and because they have no back up in terms of qualifications they end up engaging in prostitution as a final resort.
4.3 Prostitutes as autonomous Beings exercising Sexual Agency
Warnick (2003) states that, either a woman has a choice good or bad, moral or immoral ones or choice means nothing because if a woman is dictated to which options she should take then she never had a choice at all. If conditions are placed on choice then it can never be regarded as choice. Women in prostitution should have a right to choose what they see as best for them and should enjoy the fundamental right to self ownership which allows them to use their bodies as they personally please. Unlike the radical feminists such as Catherine MacKinnon who argue that prostitution "isn't sex only, it’s you do what I say, sex" (Mackinnon, A, 1993). This alleges that women have no control of the sexual acts the findings reveal the contrary,
These are the words of two prostitutes:
“We use protection always and we tell our clients to go to hell if they insist on unprotected sex. We are far much better than married women because we can insist on condom usage. It is a matter of choice, if you do
52 not have discipline and someone promises you more money for unprotected sex then it is easy to be infected.”
“I can decide whether I want to perform a certain sexual act or not. Just two weeks ago I refused to give a client a blow job which he wanted and he has been calling me, threatening me and hurling all sorts of insults because I did not give him back his money. I will not even give him the money because he wasted my time whilst he was refusing to leave my house when I could have found another client. How can someone want a blow job so that I end up with ulcers in my mouth?”
The above voices illustrate that prostitutes exercise a certain degree of autonomy and therefore do not look at themselves as victims but as people who are out there to challenge oppression amongst women and to bring about change in their lives. Prostitutes get their money on their own terms which confirms the assumption that ‘women in prostitution are autonomous and have control over their sexuality.’ This should be one of the bases for decriminalizing prostitution.
Choice however is made possible through socio, political, economic and cultural enabling conditions. Questions that should be asked when confronted with the term ‘choice’ are: ‘To what extent is choice an individualistic and linear phenomenon in African contexts?’ Though it (choice) has become a buzz word for a long time, once unpacked, can be seen as a much more complex concept than its simple name suggests (Undie, Chi-Chi, 2010). I was constantly faced with a challenge in trying to discern real choice from ‘forced’ choice. Most women enter into prostitution as a choice after serious consideration that there is no other option available to them. When I told Chido* that some feminists view prostitution as a form of exploitation, she said,
“No one forces you to become a prostitute, no one knocks on your door to say go and become a prostitute, I personally chose to become one after assessing my situation and seeing that it is the only way out of my financial distresses.”
In as much as prostitution is crowded with controversy women still choose to engage in it so that they can earn a living out of it. Although others would suggest that the choice is forced on them by their financial status which would disqualify it as a choice, it is a choice which should be respected. Women in prostitution operate independently and determine their conditions of
53 service so they are better than some of the poorly paid women who work as maids and clean public toilets who do not have the leeway to conclusively determine how they should work. In prostitution women become their own bosses. This sense of autonomy challenges assertions that prostitutes are complete victims and totally disempowered when in actual fact it is only through prostitution that they feel empowered.
The law on prostitution therefore falls short of the principle of non-discrimination which is found in Article 1 of CEDAW. The implementation of the law on prostitution shows how women are discriminated against as they are the ones who are apprehended for prostitution when the buyers who are men are not arrested.
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CHAPTER 5
5.0 A CASE FOR THE DECRIMINALIZATION OF PROSTITUTION: WHAT CAN BE DONE?
This chapter gives an overview of the considerations that have to be made in deciding the best steps that can be taken in building a case for the decriminalization of prostitution. Regard will be had to the different legal frameworks on prostitution that is decriminalization, legalization and criminalization and assessing what has worked and what can work in Zimbabwe in view of the socio-economical environment that is prevailing in the country. Examples from other countries will be looked at only as a means of comparison.
5.1 Prostitution, Morality and the Law
The law on prostitution gives rise to a jurisprudential debate on the relationship between morality and the law. The debate really is premised on whether criminal law can be used to enforce issues of sexuality and morality. From the research findings the primary reason that was put forward by the interviewees for having the law on prostitution is in order to enforce society’s views of morality. Prostitution is generally viewed as immoral and society thinks that if it is not nipped in the bud it will result in Zimbabwe becoming just like the Biblical ‘Sodom’ and ‘Gomorrah’. The following voices from the research show that the law on prostitution is there to curb immorality,
“Prostitution, is prostitution, we cannot leave our country to be Sodom and Gomorrah, it is not honourable and we would not want such a scenario in our country.”
These are the words of a Police Officer who was adamant against Zimbabwe decriminalizing or legalizing prostitution. Biblical references are usually made to justify certain positions and beliefs without leaving room to engage with a real problem and how it can better be practically addressed. The law in this instance is a tool to enforce morality and the question that is then
55 asked is who defines morality? This position of the law has a great bearing on a society like Zimbabwe where Christianity in particular where Pentecostalism has become very dominant in the country. A male lawyer that was also interviewed in town stated as follows,
“Prostitution is morally reprehensible just like theft….People are hurt by these acts and society has standards and expectations which people are judged against and one such is prostitution.”
In the same light a Chief Inspector who was interviewed stated that the mischief being addressed by the law on prostitution is that morals are being enforced as, ‘prostitution is morally repugnant.’ Morality is taking precedence over the problems, human rights, needs and concerns of prostitutes.
Questions arise out of this approach of enforcing morality through criminal law. Should prostitution be criminalized because it is regarded immoral? Is it the role of the law to enforce this view? The conceptualization of this aspect again as any other issues in prostitution is so diverse. Others regard the selling of sex as wicked and very sinful whilst others concentrate on the harm that it causes to society or to the prostitute herself. Lord Devin (1995) argues that harmful consequences of immorality result in it being enforced,
‘[A]n established morality is as necessary as good government to the welfare of society. Societies disintegrate from within more frequently than they are broken up by external pressures. There is disintegration when no common morality is observed and history shows that the loosening of moral bonds is often the first stage of disintegration, so that society is justified in taking the same steps to preserve its moral code as it does to preserve its government and other essential institutions. The suppression of vice is as much the law's business as the suppression of subversive activities . . .'
Prostitution is believed to encourage the transmission of Hiv/Aids as prostitutes are viewed as vectors of Hiv and yet in reality they negotiate for the use of condoms more than married women. Women in prostitution are regarded as immoral and therefore spreading the virus as outlined in Mandangu, J, 1999, 65. Mandangu J, supra however discovered that prostitutes are very conscious of the cost of having unprotected sex. This then destroys families which are the backbone of the state and it is also seen as being harmful to the women who engage in it. Those who oppose such a stance are of the opinion that women are not victims as they agree to have
56 sex as adults save for those that might have been trafficked for purposes of prostitution. This research does not look at this aspect of trafficking as it does not really reveal itself as a problem in the location of research.
The topic of prostitution is riddled with many contradictions and there seems to be no agreement about all its various aspects which makes law reform in the area very problematic. This was noted by the Law Development Commissioner who noted that,
“In as much as the provisions of the law are being challenged prostitution is still regarded as being morally repugnant and law reform might thus fail to be popular with the people.”
The realities might point towards law reform but society might not be ready to accept the legal reform as it might constitute too much of a challenge to its moral beliefs. Liberal feminists go as far as suggesting that sexual liberation ensures that prostitutes have means to earn a living. This attitude and assertion is buttressed in a report which was done by Wolfenden Committee on Homosexual Offences and Prostitution (Burchell, 2005, 65) where it was stated that there is a need for people to have freedom of choice in matters of private morality:
‘Unless a deliberate attempt is made by society, acting through the agency of the law, to equate the sphere of crime with that of sin, there must remain a realm of private morality and immorality, which is, in brief and crude terms, not the law’s business.’
This shows that there is a need to separate law and morality because the challenge really is who defines morality and whose morality is being enforced by laws concerned with morality. What is baffling in this respect is that there have been other laws that are also based on morality (such as adultery) and it has been accepted for some time that they are archaic and have been discarded. The reason why the law on adultery has been amended, however, may be because it is mostly men who commit adultery and since they make the law, they have the power to change it when it suits them. Since prostitution is gendered in nature the law on prostitution could probably just be serving the patriarchal needs of society since it affects women only. Prostitution continues unabated; the fact that prostitutes are arrested has not brought the practice to an end. This means
57 that the law (whose avowed purpose is to put an end to the so-called immoral activity of prostitution) is not fulfilling its intended purpose.
Prostitutes themselves are well aware and conscious of the fact that prostitution is regarded as immoral as they shy away from doing it during the day and they also tend to shy away from recommendations that will end up exposing them like legalising prostitution which require them to be registered with a state authority. It is also interesting to note that of all the prostitutes that were interviewed none of them want their own daughters to engage in prostitution as they say that it is not ‘honourable’. I only came across one woman who is now forty three (43) years old who is working alongside her daughter but she indicated that:
“I never wanted my daughter to be a prostitute, I beat her up several times but to no avail, now I have accepted that that is the situation and I cannot do anything about it.”
When asked why they did not want to have their own daughters engage in prostitution, clearly issues to do with morality came out as they said,
“Prostitution is not a respectable thing to do in society and we lose our dignity as our bodies are known by every man….”
One pregnant woman who was now operating as a prostitute in the Avenues area so as to raise money for rentals and subsistence stated that,
“I am not intending on being a prostitute permanently because this is not a good way of life as it is immoral. I am desperate for money to pay rentals, buy food and pay for preparation.”
Another one also stated that she does not want anyone to know that she earns money being a prostitute because “…if the world knows, it will despise me.”
The media has been awash with debates on the topic of prostitution and an article which was in the Herald entitled, ‘The problem that just won’t go’ dated Saturday, 13 August 2011 outlined
58 some of the debates that have taken place in some circles in Zimbabwe. An academic who is also the chairman of the Department of Sociology at the University of Zimbabwe, Dr Watch Ruparanganda, said legalising prostitution would destroy the Zimbabwean culture as it is immoral and encourages people to engage in unsanctioned sexual encounters. He is also quoted to have said that, ‘Society has its own values and norms which have to be safeguarded by its own people and not to be intimidated by the culture of Westernisation.’ On the contrary the Minister of Health and Child Welfare, Dr Henry Madzorera, is quoted to have said that there would be benefits if prostitution was legalised. He said:
“Sex work, which I prefer to call prostitution, if recognised, will not increase the number of people infected with HIV and Aids, especially if complemented with adequate programmes because these people have been there since biblical times and do not emit diseases.”
The legalisation of prostitution is then justified on medical grounds which, however, does not pay regard to the question of morality. Bishop Patience Hove of Elshadai Ministries has also criticised prostitution as she has said that the Christian community would not allow ‘such evil deeds to occur in society as sex is meant for marriage and cannot be commercialised’ (The Herald, 13/08/11). In this regard biblical verses are even quoted to justify the condemnation of prostitution such as Leviticus 19v29 which reads:
‘Do not prostitute thy daughter, to cause her to be a whore; lest the land fall to whoredom, and the land become full of wickedness.’
Deuteronomy 23:17 cements God’s standing on prostitution as it says ‘There shall be no whore of the daughters of Israel, nor a sodomite of the sons of Israel.’
These assertions indicate that there is approval for the current the law on prostitution is favoured because it seeks to outlaw it. The problem, however, is that even with this law in place the number of prostitutes seems to be on an increase.
However the question of morality is raised when looking at the women who sell sex and yet the condemnation is different when it comes to men who buy sex. Weeks (1989) and Agustin (2006)
59 discern the existence of double standards in society: men who buy sex are not stigmatized by society, yet the women they buy it from are! The law on prostitution and its implementation reflect on how society approves of the existence of double standards. Women are the ones who are usually arrested for engaging in sex whilst men escape unpunished.
It is clear that law and morality are at interplay as regards the law on prostitution and morality is directing the route which the law should take. In as much as there might be an outcry as regards the abuse of women in prostitution’s human rights any review of the law has to seriously consider the position of morality in our society.
5.2 Criminalisation, Legalisation or Decriminalisation? What is the Way Forward for Zimbabwe?
Most feminists who look at prostitution from a rights-based perspective support some form of either decriminalization or legalization. What really has to be considered in deciding which model to take in a peculiar jurisdiction is to look at the mischief which is being addressed. This decision should not be taken lightly or without objectivity as there are some considerations that have to be made. Regard should be had to socio-economic issues, moral and religious viewpoints, human rights, the nature of the harm to women, culture and tradition.
The particular meaning and weight attached to each factor varies across jurisdictions, and are contingent upon the particular historical, philosophical and social context of each country. Approaches to dealing with prostitution are also influenced by whether it is viewed as a phenomenon that can or should be eliminated, or as one that will persist or should be left alone (McCallum, G.2002). There are generally three legal regimes governing prostitution which in their diverse considerations share some main policy concerns which are: (a) protecting prostitutes so that they are not exploited from third parties and (b) protecting society from the adverse effects of and exposure to prostitution. This research will take a holistic look at the criminalization, legalization and decriminalization of prostitution and analyse the benefits and disadvantages of each option.
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5.2.1 Criminalization
This regime criminalizes all aspects of prostitution as is the case in Zimbabwe, South Africa, Botswana, Canada and most countries worldwide. This regime is premised on the belief that prostitution is a social evil which should be done away with through the use of criminal law. Criminal law is thus used to punish whoever is found prostituting. Justifications for criminalization vary from community to community with some countries like South Africa arguing that the law on prostitution prevents social ills such as public nuisance, child prostitution, trafficking in women and children, public health as well as some associated crimes as pronounced in the South African case of S v Jordan and Ors 2002(1)SACR17(T). In this light the law is justified on grounds of morality. The research findings show that support for criminalization is based on the fact that supporters believe it is immoral and should be made illegal and criminalised.
Totally criminalising prostitution however has resulted in prostitutes becoming increasingly vulnerable to violence, since the activity is pushed underground. An Officer from Zimbabwe Lawyers for Human Rights, an organization which advocates for social justice also who was interviewed noted that:
“Prostitutes operate in an environment in which they have no rights at all as they are regarded as an illegal entity and cannot therefore claim any other rights.”
The impact is that women in prostitution fail to report any incidences which they face whilst engaging in prostitution for fear that they might be incarcerated. Religious and moral views in this respect affect one’s entitlement to human rights which thus exposes prostitutes who are regarded as morally decadent. A woman in prostitution also recounted how her cellphone was stolen from her and she knew the culprit but when she went to the police to report instead of helping her they asked her ‘Why do you engage in prostitution?’ The case was never investigated until she went to Harare Central Police Station where she found a police officer who was forthcoming and helped her recover her cell phone. The law which criminalizes prostitution fails
61 to hearken to the voices of prostitutes who seek to be legitimized just like their clients have been regarded as legitimate in society.
Looked at holistically the expense of enforcing the law on prostitution drains resources which could be channelled towards the prevention of other more serious crimes like armed robbery which are not given as much attention as the prostitutes. The Coordinator for Katswe Sisterhood is advocating for the decriminalization of prostitution and putting forward the proposition that it is just like any other form of work:
“It is interesting to note that when robbers attack us at our houses and we call the police, they will give you all kinds of flimsy excuses like we have no car and yet dozens of them patrol the streets every evening in a bid to arrest prostitutes who have not wronged anyone. They have just made a unique choice.”
This therefore indicates that the police are misapplying or abusing the criminal law on prostitution: they arrest prostitutes not with the intention of genuinely prosecuting them (no genuine cases of prosecution occur) but simply in order to harass them and frustrate their business. However during the field research there were some women who felt that the law was good as it was as enunciated in the following words:
“It’s fine that we have to play hide and seek with the police because when they want to arrest they also offer us protection as it means that if anyone attacks us we will also get protection from the police.”
Acknowledging that protection for them is not easy the women in prostitution actually take advantage of the presence of the police to get protection from armed robbers and other vagabonds.
5.2.2 Legalization
This is sometimes referred to as ‘regulation’ since it permits prostitution under certain circumstances for example zoning which is confining it to a certain area or licensing it which
62 involves giving a permit to a number of prostitutes to operate from designated areas. In light of this prostitution is viewed as a necessary evil which therefore needs to be controlled so as not to offend those that do not agree with this principle. In Africa only one country, Senegal, has legalized prostitution. The situation in Segal rebuts the presumption that prostitution spreads HIV and AIDS as it has a low prevalence rate of 0, 7 percent (as at 2006, UNAIDS Report, 2006) in contrast with Zimbabwe’s prevalence rate which is 14 percent as at 2009.
The regulation of prostitution affords free access to health care and condoms as well as control of sexually transmitted infections. The law states that prostitutes have to be of 21 years or older and are required to carry health cards and go for frequent medical checkups. The prostitutes should also be registered, failure of which attracts criminal prosecution. The conditions are so stringent that they discourage prostitutes from registering preferring to exercise their prostitution under cover (Western Africa assessment on sexual health and right, 2006, 18.) Generally in Senegal prostitutes are viewed as immoral and registration further exposes them to rejection by family members. In Zimbabwe some women in prostitution also expressed discomfort about legalising the trade as they said it would expose them as people would end up knowing what they do; under the current system their activities remain private.
Legalisation also seems to fail prostitutes as it does not accord them any rights save for the right not to be criminally prosecuted. It also fails prostitutes in that it does not improve their personal security. It is more geared toward making prostitutes invisible by relegating them to particular areas so that they do not become ‘public nuisances’.
This legal regime would also not offer much relief to prostitutes as the practice is still viewed as immoral and it will expose those who do not wish to be known that they are prostitutes. There are mixed feelings about this as one MP that was interviewed viewed legalization as the ‘grand finale’. Another human rights practitioner noted that besides the issue of Zimbabwe not having adequate resources to put systems in place to regulate prostitution it would probably fail to become law as,
“Legalisation is overt acknowledgement of sex work and our society with its moral fibre might never acknowledge it.”
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Although legalization might really help in making effective interventions on HIV/AIDS the whole process of declaring certain zones red light districts and registering a practice which is regarded as morally repugnant is something that might not happen in Zimbabwe. The Law Development Commissioner also echoed the same sentiments,
“Legalising prostitution might not gain popularity with the people of Zimbabwe as it is viewed as immoral.”
Legalisation comes with its own complexities but if it executed consciously could offer women in prostitution the relief that they need and desire. There would be a need to offer supportive policies to execute regulation without further violating the rights of prostitutes.
5.2.3 Decriminalization
When criminalization and regulation fail the sound option becomes decriminalization. This is the complete removal of prostitution and prostitution related offences from criminal law. Unlike regulation which reinforces the marginalization of prostitutes, decriminalization increases their quality of life. They become masters of their own destinies. This is mainly due to the realization that laws which segregate prostitutes drive them further into the realm of violence as they become more vulnerable to people within the underworld who manipulate them. New Zealand is one of the countries that has adopted a liberal approach to prostitution which allows for its unprohibited existence. In trying to answer the question whether decriminalization is the answer to prostitution given women’s lived realities there is a need to critically examine what it really means to decriminalize with particular focus on a country that has decriminalized.
New Zealand came up with the Prostitution Reform Act of 2003 which sought to decriminalize prostitution and reducing harms caused by prostitution, whilst not endorsing or morally sanctioning it. The Act empowers prostitutes by clearly stipulating that a prostitute has the right to refuse sex with a client whilst also controlling advertising of prostitution by potential migrants. The Act also offers protection to prostitutes by:
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Allowing them membership to trade unions. Acknowledging employment contracts and legal contracts with clients. Reducing barriers to exiting the activity by allowing prostitutes immediate access to Government unemployment benefits. Ensuring coverage of the sex industry by occupational safety and health agency and relevant Government agencies.
This position ensures that prostitutes are recognized as rights holders whose status in society is clear and recognised under the law. A Committee which was set up by the Prostitutes Reform Act to assess the efficacy of the law stated that they were satisfied with how the legal regime protected prostitutes. They also noted that sex workers were practicing safe sex with very low rates of Hiv/Aids incidences among them (Report of the prostitution Committee, 2008, 12).
Decriminalization gives prostitutes a platform to be politically active which ensures that their organizing is legitimized and they become part of society.
The above outlined legal regimes show that decriminalization is the best of all the options as it ensures that the rights of prostitutes are protected and promoted. Although legalization (which is better than criminalisation) could be another option it does not eliminate the issue of stigmatisation as the women in prostitution are still subjected to some form of control and legal regulation. The majority of the interviewees indicated that they would rather have the law on prostitution decriminalized.
Looking at the context of Zimbabwe, right now might not be the right time to be talking about law reform especially of this nature. The law on prostitution as much as it needs to be reviewed will not strike as an issue that could be prioritized by the legislators as they are more concerned about the Constitution and the impending elections. Criminalisation of prostitution in Zimbabwe is resulting in the marginalization of women in prostitution as they are seen as illegal entities whose rights have been suspended. The rationale for criminalization is that with restrictive laws citizens will be deterred from engaging in prostitution thereby leading to its decrease or
65 elimination. This has not been the case in Zimbabwe as there are more and more women who have turned to prostitution for survival. But looking at the moral views on prostitution and the way the nation has been hit by the evangelical wave of the Pentecostal Churches decriminalizing prostitution might be difficult to achieve. On the other hand decriminalization offers a better option and might be acceptable as it is not blatant acknowledgement of a practice which generally is viewed as morally repulsive. Difficult as it might seem it is self evident from the foregoing that the law on prostitution needs to be reviewed.
From the above deliberations it is clear that law review of this nature is not an easy task. New Zealand can be used as a model to decriminalize prostitution. Even in New Zealand where prostitution is decriminalized it has not been an easy road. When the Act was passed the votes were 60 supporting the move versus 59 who did not support the initiative (South African Law Reform Commission Discussion paper 001/009, 2009, 154). It was not an easy task and if law reform should also take place it will not be an easy task even in South Africa the debates have also been on going with no tangible results.
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CHAPTER 6
6.0 CONCLUSION AND RECOMMENDATIONS
6.1 Conclusion
This profession is as old as humanity itself and if people continue to bury their heads in the sand and hope to wish it away it will not happen. Prostitution whether we approve of it or not is here to stay and it will continue to thrive as a practice legally or illegally. From the research it is necessary to take a step back and put off the morality lenses and start focusing on understanding the trajectories into prostitution and how circumstances that drive people into prostitution are holistically addressed rather than blindly condemning prostitutes. Because the sex work industry is ‘monolithic’ there is need to improve the prostitutes’ lives so that their rights are promoted and protected rather than misfiring by attacking the institution.
The criminal law on prostitution facilitates the further ostracism of women in prostitution as it even rubber stamps them as criminals which makes it difficult to claim any rights and limits their accessibility to essential services such as healthcare and legal justice. Although it is not all prostitutes who would leave the profession if they have another source of income a large chunk will thus if there are employment opportunities created it will thus reduce the number of prostitutes. Criminalisation in and of itself cannot act as a deterrent factor to push way women from engaging in prostitution. If the government of Zimbabwe is serious about reducing numbers of prostitutes then they should come up with tangible ways to create a conducive environment which will ensure that prostitutes are comfortable to give up the trade.
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6.2 Recommendations
Tinsman, H. (1992) notes that:
‘Prohibition attempts to eliminate a source of income without altering the economic realities that make sex work a primary source of income for women all over the world’.
This will be futile if there are no tangible options of income put in place. Poverty is the main force which drives most women into prostitution as it provides them with an immediate means of survival and quickly becomes a major form of subsistence. Although it is associated with many risks and dangers, so long as poverty remains prevalent more and more women will turn to it. Therefore, in order to prevent more women from becoming prostitutes priority must be given to policies that aim at eradicating poverty. Because of the gendered nature of poverty there is a need for the government of Zimbabwe to shape its responsive policies in line with CEDAW and Beijing Platform for Action (BPA).
Vocational training programmes are needed to develop apprenticeship and skills, in both enterprise settings and the public sector, to provide skills training to youth, young women, and prostitutes. This might actually encourage women who have no skills to be capacitated and thereafter look for employment or start their own business. Initiatives by the government such as the Indigenization programme being run by the Ministry of Youth Development, Indigenization and Economic Empowerment are commendable but need to be run in a transparent manner that ensures the majority of people in need benefit. This could actually see a reduction in the number of women engaging in prostitution.
Arrests carried out by the police simply frustrate the prostitutes as they have no source of income and will continue practising prostitution. The Law Development Commissioner noted that,
“Prostitution is a reality and to pretend that it is not there is not useful, there is need to accept that it is a reality and deal with it in view of the fact that the provisions of the law are being challenged.”
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Based on the discussion in chapter five (5) about the possibility of law reform it can be safely concluded that decriminalization of prostitution is the answer. This is obviously something that the government might not prioritize at the moment and proposing such a reform might be dismissed as pushing the wrong agenda. Such a reform can best be pushed through the submission of a private member’s bill and then also push for labour laws and policies that will be sensitive to prostitutes.
The reform can be carefully worded as has been done by the New Zealand governments who have taken care not to mention that they condone prostitution thus ensuring that such a stance is not repulsive to those who view it as immoral. It can thus be worded in such a way that will not offend the majority of the people but ensuring that:
Adult prostitution is not governed by criminal law. Distinguishing between forced and voluntary prostitution. Recognizing prostitution without necessarily promoting it.
In short, decriminalization is the only answer to the issue of prostitution.
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