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Perils of criminalising sex work


Ntsoaki Motaung

In Lesotho, sex work is criminalized, but despite this, every town in every district is reported to have sex workers.

According to many of these sex workers, the criminalisation of their work exposes them to numerous challenges, including violations by those who pose as clients.

A sex worker, Lerato*, recounts her harrowing experiences of being violated by clients.

“I started sex work years back when my life became difficult and I could not make ends meet. I had no job and figured sex work was the only possible job I could get into easily to change my situation,” she said.

As time passed, Lerato had a baby and decided to quit sex work to look after her child.

“I did not only quit because I had a child, but I also did not want my child to grow up and know what kind of job I did. After I quit, things were still tough, but I tried piece jobs like doing laundry for people and getting paid for that,” she explained.

Lerato lived that life until her child was a teenager and fell pregnant.

“Things became even harder for us because I had to take care of both my child and her newborn,” she said.

It was at this moment that she resorted to returning to sex work, not knowing she would fall prey to clients who take advantage of the criminalisation of sex work to violate her.

One day, as she prepared for work and arrived in the streets of Maseru, the capital city of Lesotho, Lerato met a client who promised her M200 if she accompanied him to his house.

Desperately needing the money, she agreed and got into the man’s car.

“When we got to the house, something unexpected happened. My client did not want to use protection (a condom). I tried to convince him to use protection, but he insisted not to and became aggressive when I insisted,” she recounted.

“He sexually harassed me because we were not agreeing, and he forced himself onto me. It was a painful experience, and I cried, but he seemed not to care,” she added.

Many sex workers in the country face not only sexual violations but also the challenge of clients who refuse to pay the agreed-upon price. Lerato experienced this first-hand when the client who had assaulted her refused to pay the promised M200, giving her only M100 instead.

“This broke me even more because I was thinking he would do the right thing, especially after what he had done to me. It got me because I thought of what I needed the money for,” she said.

According to Lerato, sex workers are not only violated by clients but also by law enforcement officers, including police and soldiers.

“As they do their patrols at night, they pretend to chase us from the streets, but when we get to darker places, they rape us and do not pay. This is because they know we cannot report them since sex work is still regarded as illegal in the country,” she explained.

She added that law enforcement officers not only rape them but also assault them.

According to the Key Affected Populations Alliance of Lesotho (KAPAL), the constitution of Lesotho is currently silent on the issue of sex work, with the exception of the Penal Code Act 2010, under section 55, which criminalises “prostitution”.

This means that no legislation directly criminalizes sex work, leaving it in a gray area where it is neither explicitly legal nor illegal.

“However, the state, through its police institutions, arbitrarily arrests sex workers without any intention of trial due to the lack of supporting laws. As a consequence, it makes it easier for clients, police, and criminals to rape, abduct, harass, assault, traffic, and violate sex workers,” KAPAL explains.

“Due to the absence of law and human rights protection mechanisms, sex workers are forced to work in harsh and poor conditions, including cold nights, dirty streets, and unsafe bars, to evade arbitrary arrests and violations of their human rights. These undesirable conditions make it easier for clients, criminals, and members of law enforcement agencies to rape and violate them,” KAPAL states.

Lepheana Mosooane, Executive Director of KAPAL, asserts that no law in the country criminalises sex work.

Mosooane clarified during an interview that the Penal Code Act of 2010, section 55, addresses “prostitution”, defined as the act of selling sex, and states that someone who benefits from prostitution can be charged.

“Prostitution is not the same thing as sex work. Sex workers sell sex services, not their bodies, as many people might mistakenly believe. We understand that sex work in the country is treated as if it is illegal, but it is not,” he said.

Mosooane argued that the legal status of sex work is evidenced by government initiatives aimed at curbing HIV infections, which include collaboration with sex workers to provide HIV-related services and health education.

“The government would not use the nation’s money on something illegal. This indicates they understand the difference between sex work and prostitution.”

To further substantiate that sex work is not illegal, Mosooane noted that KAPAL was granted permits by the Lesotho Mounted Police Service (LMPS) to hold peaceful marches and as well as events by the Maseru City Council (MCC).

“In some cases, when one of our members has been violated, we can take their matter to the police as well as to the courts of law. Those institutions would not listen to our cases if sex work was illegal,” he said.

The Chairman of the portfolio committee of the Social Cluster, Mokhothu Makhalanyane, acknowledged that the committee has not yet met with representatives of sex workers, but said they are aware that sex workers face significant human rights challenges.

“The committee takes into account the freedoms of each person and their human rights, regardless of their situation. People’s human rights are protected even if that person is in contempt of the law, which means everyone has the right for their rights to be protected,” Makhalanyane stated.

He stressed that sex workers are entitled to the same rights as others and should not be subjected to harassment.

“Sex workers have the same rights; they are not supposed to be harassed by anyone. They should be dealt with as humans. If there is something they do that is regarded as not good, it should be addressed legally, while also considering international conventions on human rights and freedoms,” he said.

Inspector ‘Mareabetsoe Mofoka from the public relations office of the Lesotho Mounted Police Service (LMPS) stated that the law is silent on the issues of sex work, and indicated that it is up to individual discretion to determine whether sex work is legal or illegal.

Mofoka explained that she could not provide statistics on cases of sex workers who have reported being harassed, particularly by the police, as they offer police services to all individuals equally, not specifically to sex workers.

She acknowledged the claims made by sex workers about police harassment and even rape but emphasised the need for formal complaints.

“It is an illegal act by the police to harass anyone, regardless of what they do or did. Such cases should be reported so that action can be taken against the police officers involved. It is very easy to trace who was at work at a given time, even if the victim does not know the officers by name,” she said.

Inspector Mofoka urged sex workers who speak publicly about being harassed and raped by the police to provide proof that they have reported these incidents.

“When sex workers decide to talk publicly about being harassed and raped by the police, they should provide proof that they have reported such cases to the police. That way, follow-up on those cases can be done, and the responsible individuals can be brought to justice,” she stated.

*Name has been changed to protect identity.

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