. SWEAT v The Minister of Safety & Security & 7 Others,Case Number 3378/07 - Judgement delivered in the Cape High Court on 20 April 2009
Harassment: police officers will often park in the areas where they work, then chase them away, threaten to arrest them and/or threaten physical assault, police officers often sit outside apartment blocks where sex workers work with dogs and use the dogs to scare off the sex workers from going to work
Notice of rights – section 35 rights They are forced to sign Not ever read to them
Police harassment and abuse of sex workers
HUMAN RIGHTSDEFENCE, SEX W ORKAND THE POLICE
Presentation outline1. Human Rights Defence Project Partnership – Introductions2. Legal context – laws that criminalise sex work3. Sex worker human rights challenges - Police Violence - confiscation of condoms and use as evidence - unlawful profiling - harassment of peer educators and SWEAT staff4. . Recommendations to the Ministry of Police
“Po lic e to o k m e a nd m y frie nd to the bus h to s le e p with the m . We we re m o re tha n 5 o f us but the y c ha s e d us a nd c a ug ht m e a nd m y frie nd . The y to o k us in the va n a nd to o k us to the bus h. We trie d to a s k the m whe re the y we re ta king us a nd whe n we a s ke d the y s a id we s ho uld s hut up . The y to o k us to the bus h a nd s a id , “Yo u wa nt to wo rk, a nd s o if y o u wa nt to wo rk tha n y o u m us t g ive us s e x . ” Outdoor sex worker, L popo, J 2012 im une
Human Rights Defence ProjectCollaborative partnership workKey implementersThe Women’s Legal Centre, Cape TownSisonke movement of sex workersSex Workers Education and Advocacy TaskforceOther provincial partners• Tshwaranang Legal Advocacy Centre (TLAC), Jo’burg• Thohoyandou Victim Empowerment Project (TVEP), Thohoyandou, Limpopo
Every sex worker, a human rights defenderBroad Objective : To defend sex workers’ human rights, prevent further abuses and legitimate sex work law reform (decriminalisation of sex work)Objectives: To document the experiences of sex workers in relation to human rights abuses; To provide legal advice and representation to individual sex workers; and To inform a strategy for future litigation to advance the human rights of sex workers.
Current law and situationon sex work Sex work is currently criminalised in South Africa It is an offence to sell sex, buy sex, and to engage in certain sex work related behaviour The criminalisation of sex work is dealt with by the Sexual Offences Act 23 of 1957, the Sexual Offences Amendment Act 2007 and Municipal By – Laws.
But in practice...• The Sexual Offences Act as it stands only allows for limited prosecution and requires intensive and intrusive police methods such as entrapment to secure a conviction.• To our knowledge, no sex workers have been prosecuted under the new amendment law (SOA, 2007)• sex workers are seldom prosecuted, and are more likely to be arrested, harassed and then released.
• Often, municipal by-laws are used to arrest sex workers instead of the SOA because of the difficulties involved in proving the elements of the offence, particularly in relation to the sex worker • Taken to court within 48 hours after arrest but then released o Occasionally receive Warning in lieu of bail s72 Notice to appear in court s56• The indoor industry is rarely targeted except when the brothel becomes too high profile or there are community complaints. It is in these instances entrapment procedures are used.
Criminalization breeds abuse• Police brutality, corruption and unlawful arrests;• Prosecutors who are unable or unwilling to tackle crimes committed against sex workers;• Assault by clients – the police claim that sexual violence against sex workers is difficult to prove, or they downplay complaints;• Stigma by health workers, deterring access to public health services• Lack of protection and benefits under labour law, a nd• Reduced citizenship rights for us and our children.Evidence to the 2011 UN Global Commission on HIV & the Law hearings showed this abuse to be the worst in Africa.
The Police perpetrators of some ofthe worst acts of violence“ Ithe n we nt to the build ing , a nd Iwa s a ng ry tha t the p o lic e m e s s with us a ll the tim e a nd c ha s e o ur c lie nts a wa y . So Ito ld the o ne p o lic e m a n, tha t “Ia m g o ing to c a ll the Da ily Sun to te ll the m tha t the p o lic e c ha s e o ur c lie nts a wa y ”. The n o ne o f the p o lic e m e n g ra bbe d m e a nd s ta rte d be a ting m e . He hit m e with his fis t in m y fa c e . He p e p p e r s p ra y e d m e in m y fa c e . A the y kic ke d nd m e a ll o v e r m y bo d y . The y be a t m e fo r a bo ut 1 0 – 1 5 m inute s , e v e n tho ug h it fe lt like a ve ry lo ng tim e . ” Female SW, Johannesburg
Police Violence ReportP urpose - to explore violence experienced by SWs ; to inform our work and expose HRVs; to show why decriminalisation of sex work is the only long term responseMethodology and sample size - 308 individual respondents from Cape Town, Johannesburg, Pretoria, Durban and Limpopo.Interviewed SWs who approached WLC – during the Legal Clinic from September 2009 – July 2011
70 percent experienced some form of abuse at the hands of police. The most common are: Assault and harassment; Arbitrary arrest; Violations of procedures and standing orders; Inhumane conditions of detention; Unlawful profiling; Exploitation and bribery; and Denial of access to justice.
Key Findings- 7 out of 10 experienced police abuse- 1 in 6 sexually or physically assaulted- 1 in 3 harassed by police- Of the 45% arrested, more than 85 % of the arrests carried out by police with no identification- Almost 50% held more than 48 hours- 70% detained – were denied access to food and water- 40 % fined and said no proper fine procedures
Assault and Harassment Almost one in six of the sex workers who had been sexually or physically assaulted by police. They often report being pepper sprayed during arrest, assaulted at the police station or when they ask the police officers for reasons for their arrest
“O ne o f the s e x wo rke rs wa s s p ra y e d in theva g ina by p o lic e this y e a r in Jo ha nne s burg ; s hewa s a ls o be a te n, a nd s he fe ll o n bo ttle a nd s hes us ta ine d injurie s , a nd tho s e injurie s we re a ls op e p p e r-s p ra y e d , inc lud ing the a nus . This is d o neto m a le a nd fe m a le s e x wo rke rs ”(Female SW, Johannesburg)
“Ap o lic e o ffic e r m a d e us s ta nd a lo ng a wa ll in aline . The re we re be e r bo ttle s a ro und us , a nd theo ffic e r be g a n s ho o ting the be e r bo ttle s withrubbe r bulle ts in a wa y tha t ke p t m a king thebulle ts hit a g a ins t us . The n the y ha nd c uffe d usa nd to o k us to the p o lic e s ta tio n. ” (FemaleSW, Johannesburg)
Arbitrary Arrest Of the 138 sex workers that approached WLC who were arrested, only 21 appeared in court, indicating that the pattern of arresting sex workers without the intention to prosecute SW’s said that they are forced into a police van and transported to the police station where they are thrown into a cell until the following morning, and then they are often released without the opportunity to appear in court.
Arbitrary Arrest Findings Arrested – 138 Fined – 117 Notice of Rights - 79 Appearance in Court - 79
“The p o lic e m e n to ld m e to g e t into the p o lic e va n. Whe n Ia s ke d the p o lic e m e n why , the y to ld m e tha t Is ho uld no t a s k a lo t o f q ue s tio ns . Ito ld the p o lic e tha t Iwa s wa iting fo r m y b o y frie nd , but the y ig no re d m e a nd p us he d m e into the va n. Whe n Ig o t into the va n, the re we re a lo t o f o the r la d ie s in the va n. We we re a ll ta lking , a nd the n the va n s to p p e d , a nd a p o lic e o ffic e r o p e ne d up the d o o r a nd he s p ra y e d p e p p e r s p ra y into the va n, be c a us e we we re ta lking . Is ta rte d c ry ing be c a us e the s p ra y b urne d m y e y e s . ”
Violations of Procedures andStanding Orders Section 35 of Constitution South African Police Act 68 OF 1995 regulations set out in Standing Orders. All sets out the procedures for lawful arrest – know under arrest, reason for arrest, and custody “formal procedures” we mean informing people of the reasons for their arrest, informing of their rights in terms of section 35 of the Constitution and providing them with a Notice of Rights. Driven around Occurrence books and custody registers
Unlawful arrest – 77 No identification – 119 Held longer than 48 hours – 64 Formal procedures not followed - arrest – 61 Formal procedures not followed – fined – 48
Inhumane Conditions Constitution and Standing Orders 64 out of 138 mentioned inhumane conditions of the police cells Denied medical attention – 11 Profiled – 28 Drove around – 38 Bad conditions – 64 No phone call – 75 Family and friends visit – 78 No water and food water - 94
The fo llo w e ve ning , Iwa s s till in the p o lic e c e ll, a nd Iinfo rm e d o ne o f the p o lic e o ffic e rs tha t I am o n A RVs a nd tha t Iha ve to ta ke m y m e d ic a tio n a t 8 p m o the rwis e Iwill g e t s ic k. I to ld the p o lic e o ffic e r tha t m y m e d ic a tio n is in m y b a g . The y re fus e d to g ive m e m y m e d ic a tio n. ” - Tra ns g e nd e r s e x wo rke r, Ca p e To wn
Profiling CPA – no pics or fingerprints until after the person has been charged “The p o lic e o ffic e rs a s ke d m e a lo t o f q ue s tio ns : The y wa nte d to kno w wha t m y full na m e is , m y a d d re s s , m y c o nta c t d e ta ils , m y c hild re n’s na m e s , a nd a te le p ho ne num be r fo r a ne x t o f kin, s o Ig a v e the m the te le p ho ne num be r fo r m y s is te r. The p o lic e o ffic e rs a ls o wa nte d to kno w why Ia m d o ing this wo rk, ho w lo ng Iha ve be e n a s e x wo rke r, wha t Ic ha rg e fo r c e rta in thing s , a nd ho w m uc h m o ne y Im a ke e ve ry d a y . Ia ns we re d a ll the ir q ue s tio ns , be c a us e it is no us e to fig ht with the m . The n the y to ld m e tha t the y ha ve to ta ke a p ic ture o f m e . The y to o k two p ic ture s , o ne o f the fro nt o f m y fa c e , a nd the o the r o f the s id e o f m y he a d . The y d id no t ta ke m y fing e rp rints . ” - Fe m a le s e x wo rke r, Ca p e To wn legal advisors for City – stopped doing this
Exploitation and Bribery Criminalisation – SW”s powerless to enforce rights and vulnerable to exploitation Use municipal by-laws to enforce the laws – warning, then court appearance Of the 117 who were fined, only 69 followed procedure and received receipts More than 4 out of every 10 sw’s fined – incorrect procedure If fines not recorded – inference that police pocketing it 10 SW’s reported being bribed by police for release or not being arrested
“The police cam to m flat and dem e y anded m oney from m I gave one of them R because e. 10 I knew he was hungry.” – F ale sex worker em Cape Town
Confiscation of Condoms and usedas evidence“Ithink fro m m y s id e it is the g o ve rnm e nt, the y d o n’t und e rs ta nd . Be c a us e the y p ut the la w tha t we m us t us e c o nd o m s to p re ve nt HI I V/ADS, but the n the y p ut the la w tha t the p o lic e m us t a rre s t us if we ha ve c o nd o m s . ” (Cape Town SW#9)
Purpose: to investigate in-depth how certain policing practices affect sex workers’ rights and health Methodology and respondents: structured individual questionnaires, SWs (20) about their experiences in street-based sex work in the last 6 months in Cape Town. A o 5 outreach workers ls
Key Findings 9 out of 20 SWs: “There are times I don’t carry condoms because I am afraid they’ll get me in trouble with the police” 8 out of 20 SWs: police had confiscated their condoms 7 out of 20 SWS witnessed police confiscating or destroying other sex workers’ condoms Police cite condom possession as a justification to arrest
“Two y e a rs a g o Iwa s s tro lling o n M rto n ilneBe a c h, c o p s a s ke d m e if Iha d a nyc o nd o m s . Ire p lie d y e s a nd he m a d e m eg ive the m to him a nd s a id Iwa s n’tp e rm itte d to c a rry c o nd o m s . ” (Cape TownSW #11).
Additional findings 10 out of 20 sex workers surveyed characterized their relationship with police as “bad. 16 out of 20 sex workers surveyed said they had been harassed or intimidated by police for doing sex work
Where violence, sex and HIVcollide “a metro police drove by and stopped me and I was running away. Then he called me and said why am I running away. He forced me to get inside the van, and he drove around the neighbourhood to a scary place then he raped me brutally without a condom. While he was raping me I asked why he doesn’t use a condoms and he said, “you are a prostitute what do you know about condoms” (Female sex worker, Durban)
Problem with this practice Hinders rights to protect themselves Makes sex workers afraid to carry condoms Police destroy condoms – Mpumalanga – forced to eat them – drive over them – stab the condoms – forces sex workers to hide condoms - damages it – or have sex without condoms Use possession as a ground to exploit and extort SW’s Police harass outreach workers – sw’s afraid to collect condoms – use them to identify SW’s Criminalisation undermines HIV prevention
“Iha d s e x with two p o lic e [o ffic e rs ] a g a ins t m ywill. Iwa s thre a te ne d tha t Iwo uld be s e nte nc e ds o Iha d s e x with the m . ” (Cape Town SW #19)“The y d o tha t, ” she said, “the y ta ke thec o nd o m s a nd the n the y p e p p e r s p ra y a nd the nthe y le a ve . ” (Cape Town SW #7)
Recommendations to the Ministry of Police Decriminalise sex work Investigate reports of violence and unlawful conduct by officers of its own institution. With the participation of sex workers, establish guidelines, for police conduct when dealing with the police Develop administrative mechanisms for monitoring and responding to reports of police violence and unlawful conduct to help minimise such occurrences, to enable the effective responses, and to ensure the protection of complainants from further victimisation Establish a memorandum of understanding between themselves and sex worker civil rights movements in which they commit themselves to monitoring reports Pass legislation that prohibits condoms as evidence; Directives to police to cease the practice of harassing and using condoms as evidence Tell NPA not to accept or use condoms as evicence