NZ’s approach to sex work under fire

A new book by British journalist and academic Julie Bindel has taken aim at New Zealand’s landmark Prostitution Reform Act (PRA), accusing it of further entrenching a culture of violence against women and failing, at the most basic level, to fulfil its primary function: to improve the lives of sex workers.

In 2003, New Zealand became the first country in the world to fully decriminalise both the selling and, controversially, the buying of sex. Prostitution was not fully legalised — migrant workers were prohibited from working in the trade and certain aspects of sex work were specifically regulated, like the compulsory use of condoms, but the PRA went further than any other country by legalising most aspects of the industry.

Decriminalisation, in the words of the act’s sponsor, then-Labour MP Tim Barnett, accepts the ‘inevitability of prostitution’ and, through practical and enforceable regulation, works to "minimise a specific harm".

Supporters argued that it would raise the safety of sex work and the standard of brothels by taking them out of the ambit of gangs and drug lords, whilst extending to sex workers health and safety benefits in line with New Zealand’s existing employment laws.

The ambition of the law was that sex workers could work more safely in groups or with professional managers in brothels. Should something go wrong, sex workers should feel more empowered to go to the police or colleagues without fear of incriminating themselves.

Bindel, and fellow supporters of outright abolition, argue that reform has worsened the relationship with the police, many of whom are wilfully ignorant of issues of consent in the sex industry and turn a blind eye to its violence. Worse still, the law entrenches other aspects of patriarchal power by legitimising a sexist industry.

The balance of power has shifted from sex workers to brothel owners; what was once viewed as sexual violence is now viewed as a mere ‘occupational hazard’. Bindel cites a government review of the PRA undertaken by the Prostitution Law Review Committee in 2008, which found that most sex workers believe that decriminalisation ‘could do little about the violence that occurred’ in the industry.

"My generation of sex workers would have never reached out to the police. They were people who arrested us."

Catherine Healy, national co-ordinator and founding member of the New Zealand Prostitute’s Collective (NZPC) disagrees. Healy advocated for the PRA and came under fire in Bindel’s book for her own work, Taking the Crime Out of Sex Work. A former sex worker from the era before decriminalisation, she has been a longtime advocate for the PRA.

She disputes the characterisation of New Zealand’s model as a cover for enabling the police and brothel owners to ignore sexual abuse in the sex industry.

"My generation of sex workers would have never reached out to the police. They were people who arrested us," she said.

She also fiercely disputes Bindel’s characterisation of the PRA’s failures. While the 2008 review of the act found that the majority of sex workers believed it did little do deter violence, it also found that a "significant minority thought that there had been an improvement since the enactment of the PRA" and that a majority "felt sex workers were now more likely to report incidents of violence to the Police".

Healy raised concerns with some of the research cited in Bindel’s study. The book claims that policing organised crime in New Zealand’s brothels is patchy, but cites a Sydney Morning Herald source that refers to policing in New South Wales and Victoria, not New Zealand.

Bindel has taken other findings out of context. Whilst the Prostitution Law Review Committee found that only 30 percent of sex workers had read OSH guidelines, one of the main reports to the committee found that over 90 percent of sex workers believed they had increased ‘employment, OSH and legal rights’ under the act and had a good understanding of what these rights were. Indeed, that submission found ‘most’ sex workers had seen OSH guidelines. 

According to Healy, bringing sex workers under the scope of New Zealand’s existing employment laws has given sex workers the ability and confidence to access the same workplace justice as other areas of employment.

In 2014, a sex worker took her employer to the Human Rights Tribunal, accusing him of a series of lewd, derogatory and threatening comments tantamount to harassment. The accused, Aaron Montgomery, was fined $25,000 and forced to undergo sexual harassment training. Healey, who gave evidence in the case, argues that it is a good example of the cooperation between sex workers and the police, making sex work safer.

Healy has some substantial evidence behind her. A 2007 study by Gillian Abel, Lisa Fitzgerald, and Cheryl Brunton of the University of Otago (which was submitted to the Prostitution Law Review Committee) interviewed 772 sex workers and showed some significant improvements since decriminalisation.

"We don’t have legislation to protect against occupational discrimination because not many people experience discrimination on the basis of their occupation."

Two-thirds of respondents said the law change had made it easier to refuse clients and most interviewees said it had made it easier to contact the police, although most violent acts were reported to colleagues.

Overall, the study concluded that the law change had made significant improvements to sex workers’ safety, thought the industry remained beset by high levels of violence. Law reform has improved the situation, but not enough.

Alternatives to decriminalisation

The most popular alternative to the New Zealand model, and the model advocated by Bindel, is the Swedish (or Nordic) model, which decriminalises the selling of sex, thereby protecting sex workers, but criminalises the purchase of sex.

Based on Sweden’s ‘Kvinnofrid’ law, versions of which have since spread to a number of Nordic countries, it takes as its basic premise that prostitution is sexist and therefore incompatible with Sweden’s goal of eradicating gender inequality. The argument goes that women enter the industry because of poverty, drugs or trafficking and that the state should at once try and reduce the harm to sex workers themselves, whilst also working to stamp out the industry altogether.

New Zealand studies, like that undertaken by Abel, Fitzgerald, and Brunton broadly line up with this view of entering sex work. Most begin sex work for financial reasons (73 percent of respondents needed money to pay for household expenses).

Though gaining in popularity around the world — it’s been adopted by several Nordic countries as well as Ireland and France — the Swedish model also has significant detractors, particularly in the academic community where the New Zealand model is preferred.

According to Healy, sex work, though partially legal, is still dangerous in Sweden. Forced underground, it is impossible to work in the safety of pairs or in safer, more open locations. The main problem is that clients, knowing they are breaking the law, can be more prone to aggression, particularly when it comes to resolving disputes.

"If we had to duck and hide, we’d be cut off," says Healy. "My colleagues in Sweden when they describe it: they’re not allowed to buddy up and work together and in NZ you can work together or work alone or you can have a manager. They can’t have a manager even if they choose they want one."

Related issues, like prohibiting the running of brothels, mean Swedish sex workers often face fear of eviction, as it is illegal for landlords to take money earned from the sex trade. Sex workers also complain of the continued stigma attached to their work, which can affect things like custody disputes, or tenancy applications.

Further reform

Healy acknowledges some of the failures of the New Zealand model: the United States State Department TIP report on trafficking accuses New Zealand of having a major trafficking problem, which the authorities have been slow to address. The State Department first identified the problem in 2004 and has made raised repeated concerns over the past five years that New Zealand is a destination country for traffickers, some of whom sell their charges into sex slavery.

Though the NZPC has a migrant education and outreach worker based in Auckland, there are still some issues around migrant workers in the sex industry.

She argues that many of the problems with trafficking only demonstrate the importance of liberalisation.

People on working holiday visas "can work in every other occupation apart from sex work [that means] we do have people who are working illegally and that can be problematic for them. That renders them more vulnerable. There will always be people who are working illegally and you have to pay attention to their vulnerability."

Many sex workers working illegally are too frightened to talk to the police about bad practices for fear they will be deported, though Healy says in cases she’s heard about, Police ignore their immigration status and focus on the accusation.

Discrimination against sex workers is also common in New Zealand. Sex workers struggle to find other jobs, succeed in tenancy applications, and generally disclose their career.

"We don’t have legislation to protect against occupational discrimination because not many people experience discrimination on the basis of their occupation."

The Human Rights Act 1993 does prohibit discrimination on the basis of employment, but Healey says unconscious bias continues to affect the lives of sex workers regardless.

Criticism of full decriminalisation continues to find supporters, even as evidence of its success ramps up and academic consensus further coalesces around full decriminalisation as the model best suited to guarantee sex workers safety. None of this, of course, can answer whether the sex industry is inherently misogynist and should be stamped out regardless. This puts abolitionists in a difficult position and forces upon them an impossible question: how to at once abolish an industry whilst also accommodating the real and pressing safety concerns of those who currently work in it.

Julie Bindel was approached for comment.

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