[Sex Work Series] Decriminalisation in New Zealand
Updated: Dec 20, 2020
[Sex Work Series] Paper 4e: Sex Work Legislation Case Studies - Decriminalisation in New Zealand: An evaluative analysis of the legal approaches to sex work in Western Europe to distinguish which system best protects the human rights of sex workers.
One of the most important clarifications and distinctions that must be made is that legalisation and decriminalisation are NOT synonymous. Decriminalisation is the full removal of laws and policies criminalising or penalising sex work (Amnesty International, 2016). This includes laws regulating the selling and buying of sex work, as well as laws on the associated activities of sex work: advertising of sex work; street solicitation; brothel-keeping; and third-party involvement (Amnesty International, 2016). In contrast, legalisation is the introduction and governmental regulation of sex work laws “regarding where, when, and how prostitution could take place” (Huges, 2004, para. 3). Unlike the legalisation approach, decriminalisation does not have any bureaucratic restrictions; such as obtaining a license or only being able to work in a particular way ie. through a state-regulated brothel that imposes curfews or quotas.
Decriminalisation, currently, is only implemented at a national level in New Zealand¹ and has been that way since 2003 (Prostitution Reform Act, 2003). The reform act was designed by sex workers and set a requirement that the law reform must be monitored and evaluated by research to analyse its effectiveness (Mac & Smith, 2018). In the following years a study conducted by the University of Otago’s School of Medicine reported that, out of a sample of 772 New Zealand sex workers interviewed, 60% felt that they are more able to refuse clients and 95% reporting that they felt that their legal and labor rights are protected by the decriminalisation approach (Abel et al., 2007).
The removal of criminalisation laws also means the removal of the consequences that result from these laws. Removing the punishment of incarceration and hefty fines removes the feedback loop of poverty that it produces. Sex workers have increased access to healthcare, alternative employment and education by not having criminal records. Without fines, sex workers can work to gain an income and become financially stable. Additionally, without criminal records or hefty fines, sex workers are less vulnerable to those looking to exploit them as they are economically independent and do not have to keep their work secretive. Removal of solicitation and advertising laws allows sex workers to screen their clients, and warn other sex workers of blacklisted clients ie. clients prone to violence, making sex work safer. Removal of vague third-party and pimping laws allows sex workers to hire bodyguards, managers, assistants, etc. Sex workers can choose to work at home or in a brothel, without fear of eviction and homelessness. They can work in numbers for safety and protect each other, and if exploited in any way, can report clients and file lawsuits. Decriminalisation prohibits state-involved, except for enforcement and regulation of other laws, ie. Decriminalisation of sex work does not remove laws that allow for trafficking, violence or exploitation of sex workers (Amnesty International, 2016). On the contrary, it allows sex workers to report these situations to authorities without repercussions, such as their arrest.
Decriminalisation changes the power dynamics in sex work where the sex workers aren’t targeted due to their vulnerability and instead are protected by the law as they should be. Under a system with decriminalisation, exploitation is more noticeable as sex workers are more economically and legally empowered. Attackers and exploiters won’t get away with abusing sex workers under a system with decriminalisation as they would under other systems. Similarly, unlike the Nordic Model, without the criminalisation of buyers, sex workers have more control of the power dynamics arising in situations ie. sex workers can insist on using their workplace to meet, rather than having to meet clients at the client’s homes to protect buyers from arrest where they could be subject to abuse. Sex workers can avoid risky and dangerous situations under decriminalisation. Decriminalisation makes sex workers safer. This was exemplified by a case in New Zealand, the only country to nationally implement decriminalisation, when a sex worker sued her manager for sexual harassment and won her case, gaining $25,000 in compensation (Wynn, 2014). By recognising sex work as work, sex workers have labor rights and the same legal protections as other professions (Armstrong, 2014).
The point of decriminalisation is to allow for sex workers to work without the fear of incarceration or hefty fines, and without compliance with strict, sometimes unachievable, regulations. Sex workers can take control of their work and be able to work independently and safely under the protection of flexible legal infrastructure, such as labor unions, enabling sex workers to gain the income they need without fear of arrest and with the protection of the law on their side, ie. so that they can report violent clients and take them to court if necessary.
Those supporting criminalisation often claim that decriminalisation will lead to a rise in sex work. New Zealand, as a case study, can be used to refute this. It has been seventeen years since the Prostitution Reform Act was passed and there is no evidence to report a rise in sex work. The reform act has effected sex work, however. Surveys conducted by the New Zealand government have reported that the collective working of sex workers has increased, fewer sex workers are working with pimps and condom use among sex workers has increased to above 99% (Armstrong, 2016). Another study explored the relationship between police and street sex workers in New Zealand and how it has changed since the Prostitution Reform Act was passed (Armstrong, 2016). Lynzi Armstrong, the researcher, interviewed sex workers, police officers, and support agencies to gain their perspectives, all of whom reported a significant positive change in the relationship between sex workers and the authorities which has increased the safety of sex workers (Armstrong, 2016). For example, sex workers can now take their time interviewing clients when soliciting on the streets as a method of screening for potential violent clients (Armstrong, 2014). Under any other legal approach to sex work, taking time to do this was risky as the client or sex worker could be caught and arrested (Armstrong, 2014). With decriminalisation, sex workers can prioritise their safety without risky loss of income. Similarly, Annah Pickering, a member of the New Zealand Prostitutes’ Collective, described a case which would be unthinkable almost anywhere else where a police officer helped a sex worker when her client refused to pay her by walking the client to the ATM to ensure the sex worker got the money she was promised (Wynn, 2014).
Decriminalisation, therefore more comprehensively protects the rights of sex workers, as long as they are citizens. Even in New Zealand, sex work is still not fully decriminalised to all, due to the clause regarding migrants’, both documented and undocumented, ability to sell sex (Article 19, Prostitution Reform Act, 2003). It is an illegal criminal offence for migrants to sell sex (Article 19, Prostitution Reform Act, 2003). This was enacted to reduce sex trafficking in New Zealand, however, criminalising sex work won’t affect sex trafficking levels². Additionally, it may even be easier for police to distinguish between sex workers and sex trafficking victims if full decriminalisation existed as all sex workers, both nationals and migrants, could join labor unions and have support groups to recognise the signs of coercive or exploitative circumstances. Criminalisation of sex work for migrants just further hides sex trafficking and enhances the secrecy that allows crime to thrive, barriers which decriminalisation would remove. Furthermore, criminalisation of sex work for migrants means that the violence, crime and discrimination that comes as an emergent property of criminalisation, police raids and deportations without trials for example, still exist in New Zealand, yet it is specifically targeted at migrants, which again leads to the bigger issue of migrant rights and border legislation (Mac & Smith, 2018).
Decriminalisation reflects and encourages the changing of perspectives around a topic. From the more positive relationship between sex workers are the police, to the reframing of sex workers from vulnerable targetable women that men can attack, abuse or exploit without consequences to economically empowered women protected by the law. The Prostitute Reform Act of 2003 was controversial and passed by only one vote (Tunnah, 2003), yet now seventeen years later, it is generally accepted among most of the population (Tan, 2018) and there may even be a Minister of Prostitution in future years (Tan, 2018). This reflects how stigma can be dismantled through effective law reform. Law reform associated with the criminalisation of migrants is the next step.
As outlined in each of the systems above, there are issues with each of the legislative systems; Criminalisation, Partial Criminalisation, the Nordic Model, Legalisation and Decriminalisation. Yet, decriminalisation seems to be the system that is the most protective of human rights of the sex workers and most adaptable to improvement due to the flexible legal infrastructure. Many other NGOs and advocacy organisations, including Amnesty International, World Health Organisation, International Labour Organisation, the Global Alliance Against Trafficking in Women, and Human Rights Watch, have come to the same conclusion and urge governments to introduce decriminalisation of sex work. My conclusion, therefore, is that decriminalisation is the most optimal approach to promoting the human rights of sex workers as it is the only approach that successfully takes the complexity of the sex industry into account and prioritises the safety of the workers. Sex work laws should prioritise the safety of sex work rather than aiming to reduce it or treat sex workers as criminals.
¹ The focus of this series is Western Europe, but since New Zealand is the only country in the world with decriminalisation of sex work it will be my case study in order to analyse whether it has been successful or not and the emergent properties of the system.
² Explained in Paper 1: The Relationship between Sex Work and Sex Trafficking and Paper 2: Human Trafficking: Common Misconceptions and Actual Realities.
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