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38 Fordham International Law Journal 205 (2015)


In Part I of this Article, I discuss the perception that sex work was a “necessary evil” under the Dutch East India Company. In Part II, I discuss British colonial rule and the influence of the Victorian era on the policing of sex work. In Part III, I discuss the Union of South Africa and the mass hysteria following the rise of the “black peril.” Part IV discusses the apartheid era and the impact of the Immorality Act on the policing of sex workers. Part V focuses on the new democratic era and the introduction of the human rights framework. Exploring this history of sex work provides insight on whether theories debating its decriminalization overemphasize the role of formal (de)criminalization in the policing of sex work. There are strong reasons why sex work should not be criminalized, but there should be a legal infrastructure in place that is going to guide police on how to interact with sex workers, circumventing the need for the informal rules that generally dictate police’s approach to sex workers in the current state of de facto decriminalization. It is inadequate to merely state there should be decriminalization without specifying how decriminalization should look. The history of the policing of sex work in South Africa reveals that sex work has mostly been policed informally and treated as a public nuisance matter. Consequently, the public nuisance aspects of sex work and the public discourses around the treatment of sex work have in many respects been far more influential to its policing than its actual formal criminalization.