One night in 2007 sticks out for Thokoza Zako*, a sex worker in Cape Town. It was the night when she was gang raped by six men and, chillingly, one of the most vivid details she recalls was the temperature.

“I remember it was cold, cold, cold,” she told Health-e News. It was late and a prospective client pulled up in his car beside her, said the mother of four. He told her he lived nearby and, because she knew the area, she decided to accompany him.

“I thought, if something happens I can even walk home from here,” she said.

But when they arrived at the house another five men were waiting.

She survived the night, without any money, and after such brutality. But she also left with something else – anger. “Anger, that dogs are even treated better than sex workers.”

“I was so angry I had made up my mind to report it to the police and I was on the way to the station but then I thought about the experiences my co-workers had of victimisation when reporting rape and of police officers laughing at them.”

In the end, she went home and “carried on”.

Activism around sex work

Since then, Zako has joined up with Sisonke movement and has become an advocate for the decriminalisation of sex work in South Africa.

Part of the sex worker organisation Sex Workers & Advocacy Taskforce (SWEAT), Sisonke aims for sex work to loosen its hold on the black market and, with-it, the vulnerability and exploitation experienced by workers.

Zako’s experience is typical of the risk-taking necessary to operate in a system where your work is not protected by the law, but rather exploited by it.

Charlene May, an attorney at the Women’s Legal Centre, a non-profit advocating for the rights of sex workers, said that the criminalisation of their profession means that they “apply their trade” in “situations where they are at risk of physical violence and exploitation”.

She said the profession is “stigmatised and morally frowned upon”, and with so many “obstacles already in place and your environment is already so hostile to you as an individual” the sex worker who also survives sexual violence “very often cannot see that there is a path to vindicate your rights through a criminal justice system”.

“It is after all the very same criminal justice system which criminalises who you are,” she said.

One of most vulnerable populations

Research from the United States has shown that female sex workers are up to 18 times more likely to be killed than other women. And while we don’t have similar data for South Africa, Marlise Richter from Sonke Gender Justice – an organisation advocating against gender-based violence – said that “it’s an indication of the particular vulnerability sex workers face”.

“It’s clear that marginalised populations are highly stigmatised, add criminalisation and there are multiple levels of vulnerability that often result in sexual violence and rape, by clients and police,” said Richter.

When sex workers are raped, it is too risky or traumatic to report it to police. They are often laughed at – there is a conception that a sex worker cannot be raped among some police officers. According to Richter, while some members of the police force are very co-operative, there are many who are not and it is even worse for a sex worker when trying to press charges against complaint a policeman.

While Zako has not been raped by a police officer, she has certainly been harassed and imprisoned without being charged multiple times, solely on the basis of being recognised as a sex worker.

“Criminalising sex work impacts on our human rights. Police often confiscate condoms which goes against protecting ourselves and clients from things like HIV,” she said. “Police pick us up, take our money, drop us off far away or put us in a cell for a few nights – we are being taken advantage of in this system.”

Sex work will continue to exist

She said “sex work exists” and will continue to exist regardless of the regulatory frameworks in place and it is in the best interests of everybody to re-look at the way the industry is policed.

Disappointingly, in May a South African Law Reform Commission report released by the justice minister on Sexual Offences: Adult Prostitution recommended that the status quo be maintained: criminalisation. As a second option it recommended partial criminalisationwhere the client would become criminalised.

Activists are in favour of neither.

“Partial criminalisation will push us further underground, and into more dangerous places, where we will be able to protect ourselves even less,” warned Zako.

Richter pointed out the “contradiction” in the government’s approach to sex workers. In March last year, the South African National AIDS Council (Sanac) released a plan outlining the need for a public health approach to sex work to curb the spread of HIV.

It acknowledges that criminalisation aids stigma and prevents at-risk communities from accessing health services.

These paradoxical ideologies, in the form of government plans and recommendations, mean the issue is at a “stalemate”, according to Richter.

The World Health Organisation and the United Nations recognise sex workers as “key populations” at risk of HIV yet the global public health argument does not seem to be gaining enough traction locally.

In July delegates at the ANC’s national policy conferences rejected a call to decriminalise sex work.

And while data is also thin on the true prevalence of rape in South Africa, gender-based violence has reached epidemic proportions by all accounts.

Why is sex work still criminalised?

The law itself, the Sexual Offences Act, is a “remnant” of the outdated 1927 Immorality Act.

Writing in BUWA! A Journal on African Women’s Experiences Richter noted that “(o)ur society seems mostly to be in agreement that the state should not interfere with the sexual, private lives of individuals – provided they are adults, and that the sex is consensual. Nonetheless, many want to make an exemption for sex workers. Why is that?”

Although involved in activism now, Zako still sees clients. “I have a rule where I only see one client at a time,” she said. That is, except for that fateful night 10 years ago. She, and many others in similar situations, will struggle to see justice, if at all, as long as the law is not on their side.

“For a long time that night affected me,” said Zako. “But we have to soldier on. No-one will protect us but ourselves but instead of guns on the battle field we use our hearts.”

* Name has been changed to protect the identity of the source’s children

An edited version of this story was first published by the Daily Maverick