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A decade of decriminalization: Sex work 'down under' but not underground

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Abstract

New Zealand was the first country to decriminalize sex work. This article provides a reflective commentary on decriminalization, its implementation and its impacts in New Zealand. New Zealand Prostitutes’ Collective (NZPC) was the key player in getting decriminalization on the policy agenda and their effective networking played an essential role to the successful campaign for legislative change. There were contentious clauses within the Prostitution Reform Act (PRA) which were of concern to NZPC and others. However, the research which informed the review of the Act has shown that decriminalization has been successful in making the industry safer and improving the human rights of sex workers within all sectors of the industry. The PRA provides several protections for sex workers, which means that their human rights and citizenship can be safeguarded. Yet there has been little movement towards decriminalization in other countries and reluctance by some to draw on New Zealand’s experience. Indeed, it cannot be claimed that decriminalization will be experienced in the same way in other countries. New Zealand is a small island with a population of just over four million and movement across its borders is more restricted than countries that are part of the European Union. Nevertheless, other countries may find the arguments used to get legislative change in New Zealand useful within their own context.
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Gillian M Abel
A decade of decriminalization: Sex work 'down under' but not underground
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DOI: 10.1177/1748895814523024
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A decade of decriminalization:
Sex work ‘down under’
but not underground
Gillian M Abel
University of Otago, New Zealand
Abstract
New Zealand was the first country to decriminalize sex work. This article provides a reflective
commentary on decriminalization, its implementation and its impacts in New Zealand. New
Zealand Prostitutes’ Collective (NZPC) was the key player in getting decriminalization on the
policy agenda and their effective networking played an essential role to the successful campaign
for legislative change. There were contentious clauses within the Prostitution Reform Act (PRA)
which were of concern to NZPC and others. However, the research which informed the review
of the Act has shown that decriminalization has been successful in making the industry safer and
improving the human rights of sex workers within all sectors of the industry. The PRA provides
several protections for sex workers, which means that their human rights and citizenship can be
safeguarded. Yet there has been little movement towards decriminalization in other countries
and reluctance by some to draw on New Zealand’s experience. Indeed, it cannot be claimed
that decriminalization will be experienced in the same way in other countries. New Zealand is a
small island with a population of just over four million and movement across its borders is more
restricted than countries that are part of the European Union. Nevertheless, other countries may
find the arguments used to get legislative change in New Zealand useful within their own context.
Keywords
Decriminalization, legislation, New Zealand, sex work
Introduction
Sex workers in New Zealand celebrated a decade of decriminalization in June 2013. Sex
work was not criminalized prior to the passing of the Prostitution Reform Act (PRA) in
Corresponding author:
Gillian M Abel, Department of Population Health, University of Otago, PO Box 4345, Christchurch 8140,
New Zealand.
Email: gillian.abel@otago.ac.nz
523024
CRJ0010.1177/1748895814523024Criminology & Criminal JusticeAbel
research-article2014
Article
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Abel 581
2003, but all activities associated with sex work were, such as soliciting, living on the
earnings, operating a brothel and procurement. This meant that it was almost impossible
to work as a sex worker without committing an offence which would bring with it a crimi-
nal charge. All dealings between sex workers and clients, brothel operators, carers of cli-
ents with disabilities and others were clandestine and conducted under a shroud of fear of
entrapment. Research done prior to decriminalization showed an industry vulnerable to
exploitation, coercion and violence (Plumridge, 2001; Plumridge and Abel, 2000, 2001).
Decriminalization acknowledges that prostitution is service work and this allows sex
workers to operate under the same employment and legal rights accorded to any other
occupational group. Many see decriminalization as the only way to protect the human
rights of sex workers and in so doing address their working conditions. Scambler and
Scambler (1997: 185) have noted that decriminalization removes: ‘the anomaly of a
gender-biased body of legislation exclusive to a particular area of work and prepare[s]
the ground for de-marginalizing women sex workers and restoring basic citizenship and
other rights to them’. Yet there has been little traction for arguments for decriminaliza-
tion internationally with only New Zealand, one state in Australia (New South Wales)
and more recently Canada going down this route. Decriminalization in New Zealand has
seen many positive changes for sex workers with robust evidence to suggest that it is a
regulatory environment that should be seriously considered in other parts of the world
(Abel, 2010; Abel et al., 2007, 2010; Prostitution Law Review Committee, 2008).
However, apart from some isolated interest shown by policy-makers in some states of
Australia and in Canada, and some sporadic interest from a few academics in Europe,
New Zealand’s experience of decriminalization is often seen as irrelevant within the
international context. Some people have said that New Zealand is at the bottom of the
world, has a very small population and does not have the issues of border crossing which
is evident in Europe. While some of the arguments around the size and location of New
Zealand may sound convincing I think that this misses the point. There are three aspects
of New Zealand’s experience of decriminalization that could be drawn on in other coun-
tries. First, it is the process that was undertaken to get decriminalization on the policy
agenda that can be helpful to others and second, the way the legislation was imple-
mented. Third, it is also useful to look at the impact the legislative change had on sex
workers and the wider New Zealand community, and indeed this was drawn on in the
court case in Ontario which saw a successful challenge to Canada’s laws on prostitution.
This article discusses these aspects of New Zealand’s experience of decriminalization
and concludes with a discussion on the current environment of sex work in this country.
The Process towards Decriminalization
There are two crucial elements in the process towards decriminalization that I think can
have relevance in other countries. These are the persistence in drawing back from an
engagement in moral arguments regarding sex work in favour of a human rights argu-
ment and the inclusion of sex workers’ voices in the development of legislation which is
aimed at them.
World-wide, the existence of a strong moral discourse on sex work is a key obstacle
to getting decriminalization on the policy agenda. This discourse frames sex workers as
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582 Criminology & Criminal Justice 14(5)
helpless victims requiring protection and relocation and has arisen from the debate about
trafficking (Kantola and Squires, 2004). The word ‘trafficking’ has become synonymous
with ‘sex work’ or ‘prostitution’ in most countries (Wagenaar and Altink, 2012) yet evi-
dence suggests that the issue of trafficking has been grossly exaggerated (Harcourt and
Donovan, 2005; Hubbard et al., 2008; O’Connell Davidson, 2006; Weitzer, 2007). Some
have an interest in perpetuating the trafficking discourse. It negates any argument for
prostitution to be seen as service work if sex workers are framed as victims and not able
to choose freely to work in the sex industry (Wagenaar and Altink, 2012) and leaves little
capacity to push the arguments which may lead to a legislative change to decriminaliza-
tion. Wagenaar and Altink (2012) therefore argue for the concepts of trafficking and
‘forced prostitution’ to be reframed as exploitation. Exploitation, they contend, will
allow analogies to be drawn with other occupational groups as exploitation is not par-
ticular to sex work. Exploitation, and the context of a criminalized environment which
allowed exploitation to flourish, was brought into the argument for decriminalization in
New Zealand and this was framed as a human rights issue. There was no engagement in
a moral discourse on sex work by those pushing for decriminalization besides the argu-
ment that Parliament should not be in the business of legislating morals. The public
health and human rights arguments were central to the passing of the PRA and these
arguments were able to win round some with a personal antipathy to sex work (Barnett
et al., 2010).
It could be argued that the PRA is a model to the rest of the world because it was
developed in full consultation with sex workers, was reviewed in consultation with sex
workers and is therefore relevant and workable for sex workers in New Zealand. New
Zealand Prostitutes’ Collective’s (NZPC) role was instrumental in making decriminali-
zation of sex work in New Zealand a reality and this role cannot be understated. NZPC
is a peer-run organization and it has strong and committed leadership. There has been
one National Co-ordinator in the organization’s 26 years of existence who has fought
tirelessly for the rights of sex workers in New Zealand. It is difficult to draw parallels
between the role NZPC plays in New Zealand and the role sex worker organizations play
in other western countries. New Zealand is small and therefore there is little place for
more than one sex worker organization. In countries like the USA, Canada and Australia
there are several sex work-related organizations; some peer run and others not. There is
therefore not one unified approach to regulatory change.
NZPC was formed in 1987 and from 1988, in response to the HIV/AIDS crisis, has
received funding from the Department of Health (now Ministry of Health). This was in
accordance with the Ottawa Charter, to empower sex worker communities to engage with
safe sex strategies, such as the distribution of condoms among sex workers. From the
outset NZPC was more than a health promotion and health education organization, and in
1989 they became politically active and started the process of raising awareness to the
harms caused by the laws in New Zealand. They were strategic in developing close links
with researchers so that the arguments they presented in their quest for decriminalization
were always evidence based. The researchers that they developed their closest ties to were
public health researchers. Some very important research done in the 1990s by these
researchers highlighted the harms that sex workers were exposed to because of the laws
which were in operation in New Zealand (Plumridge, 2001; Plumridge and Abel, 2000,
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2001). This research was utilized in submissions to various Government Select Committees
when further restrictive amendments were being considered to the Crimes Act.
NZPC’s link to public health researchers was a well-considered one. Decriminalization
of sex work has been advocated by public health workers in New Zealand and elsewhere
as a strategy for harm minimization. Increasingly, public health professionals have rec-
ognized that they need to take a more holistic approach and look at the structural and
political issues which underpin sex workers’ health and well-being (Chan and Reidpath,
2003; Frieden et al., 2005; Scambler and Scambler, 1995). Human rights are essential to
health and well-being, and decriminalization gives sex workers autonomy and the capac-
ity to protect themselves (Pyett and Warr, 1999).
NZPC proved themselves to be very good networkers and made important links to the
right people and organizations who joined them in a coalition calling for decriminaliza-
tion (Barnett et al., 2010). They also gained support from high-ranking Members of
Parliament from different political parties who became key players advocating for
decriminalization in Parliament. NZPC started to build credibility in the public arena and
this credibility was heightened because they were a government funded organization.
They networked effectively with lawyers and others to develop the Prostitution Reform
Bill which laid out the blueprint for decriminalization. This Bill was submitted to
Parliament in 2000 and underwent three readings, returning to the Select Committee
twice where submissions were heard and amendments made. Opponents to decriminali-
zation were mainly Christian fundamentalists who thought that the law would ‘normal-
ize’ sex work which they argued was wrong and against biblical teachings (Barnett et al.,
2010). The radical feminist element opposed to decriminalization was not a dominant
force in New Zealand. Of 56 submissions made by feminists on the Bill, only 16 were
opposed, mainly arguing that sex work was an indicator of gender inequality (Laurie,
2010). They tried to reverse the law and push for criminalization of the client in line with
the Swedish model at a Committee of the Whole House in Parliament but this was
defeated by a vote of 19 to 96. They also moved to criminalize both the client and the sex
worker and that too was defeated by a vote of 12 to 103 (Barnett et al., 2010). There was
a national election during this time where the Labour Party was returned to power but
with a reduced majority. A small party, the United Future Party (who were opposed to
decriminalization) gained some seats in Parliament. The growing opposition in Parliament
was reflected in the margin in voting after each reading of the Bill: 87 votes to 21 in the
2000 reading; 64 votes to 56 in the 2002 reading and 60 votes to 59 with one abstention
in the 2003 reading when the PRA was passed and decriminalization of sex work became
a reality in New Zealand.
The Implementation of the Prostitution Reform Act and
Its Impacts
There is little written about implementation of prostitution policy (Wagenaar and Altink,
2012). Implementation of the PRA was largely top–down but the implementation of
some clauses within the PRA were devolved to various authorities. The authorities, how-
ever, were limited in their powers so as to not subvert the intentions of the Act. Scoular
(2010: 13) contends that legislation passed to regulate sex work represents ‘political and
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social aspirations’ of how the sex industry should be regulated and this is lost in its
implementation at the local level. This may be relevant in some contexts but this has not
been the case in New Zealand. As she points out, the law operates through a number of
forums. Brothel operators in New Zealand are required to hold a certificate obtainable
through the Registrar of a District Court (sections 34–41). Territorial authorities are
given the ability to enact bylaws to control signage and location of brothels (sections
12–14). Police and occupational safety and health inspectors have powers of entry to
brothels (sections 24–33). Yet Registrars, territorial authorities, police and health inspec-
tors have to work within the parameters of the PRA and there are sufficient protections
within the Act to ensure that the ‘political and social aspirations’ of decriminalization are
not lost.
This is not to say that Territorial Authorities have not tried to implement restrictive
bylaws. Warnock and Wheen (2012: 416) have claimed that Territorial Authorities have
‘heavily regulated’ brothels and pushed them into ‘marginal areas’ and in so doing have
put the health and safety of sex workers under threat. Some Territorial Authorities have
made bylaws restricting brothels to the central business district, however to call these
areas ‘marginal’ is misrepresenting the situation. Brothels in most of the big cities sit
alongside trendy restaurants, bars and nightclubs. It is true that some of the main cities
have strived to keep brothels out of the suburbs but it is inaccurate to depict brothel
workers as confined to dark, lonely and potentially dangerous areas in New Zealand.
Sections 12–14 of the PRA on location and signage of brothels are slightly ambigu-
ous. The PRA defines a small owner operated brothel (SOOB) as being a brothel where
up to four people can work as equal sex workers without a person in charge. However, it
does not distinguish in sections 12–14 between SOOBs and larger brothels. This meant
that some private workers working from the suburbs were effectively recriminalized
when territorial authorities attempted to enact bylaws restricting brothels to the central
business district. This was in contravention of the Act as it meant that a two tiered system
would exist and all the protections afforded by the Act would be negated for the affected
workers. Some territorial authorities were taken to court where the bylaws were thrown
out, but in a few cases the bylaw persists (Knight, 2005, 2010).
Agustin (2008: 83) claims that decriminalization is ‘rational in recommending the
sweeping away of inefficient, hypocritical, and impossible regimes as a first step in a
more progressive governance of commercial sex, but so far, its proponents rarely address
what forms of regulation might follow’. All the laws pertaining to sex work in the Crimes
Act (1961), the Summary Offences Act (1991) and the Massage Parlours Act (1978)
were rendered null when the PRA was passed in 2003, but regulations were put in place
to protect sex workers. Many of these regulations are dealt with under the PRA but in
addition to this, there are health and safety guidelines specifically for the sex industry
which were developed by the Department of Labour in collaboration with NZPC
(Department of Labour, 2004). There are therefore protections built into the legislation
to safeguard the rights of sex workers.
For example, sections 16–18 were designed to protect sex workers against exploita-
tive management practices, such as the use of bribes or threats to provide particular
sexual services. However, these sections can also provide protection against clients and
these sections have been invoked in court proceedings since decriminalization. Some
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court cases have seen police officers convicted: in one a police officer was charged for
bribing a sex worker for free sex in return for overlooking a driving offence (Humphreys,
2012) and in another case a police officer was convicted and received jail time for abus-
ing his power to obtain free sex (Anon., 2010). A client was jailed for nine years for rape
in a recent case after taking a sex worker to a remote area and forcing her to have sex,
using threats of gang-rape and murder (Clarkson, 2012). It is evident from the number of
cases that have come before the courts that the PRA has enhanced the human rights of
sex workers in New Zealand. They are gaining some confidence in utilizing the legal
system when crimes are committed against them:
So say just the power it’s given us as the professionals, that we have the law behind us and we
can say, ‘Look if you do this, we can prosecute you,’ like any other place where they break, you
know, the law – Sheila. (Abel, 2010: 241)
Police street patrols are welcomed in many areas as enhancing safety rather than in a
criminalized environment where this would be seen as threat:
And the Police weren’t around as much (before decriminalization). But when it got legalised
the Police were everywhere. We always have Police coming up and down the street every night,
and we’d even have them coming over to make sure that we were all right and making sure our
minders, that we’ve got minders and that they were taking registration plates and the identity of
the clients. So it was, it changed the whole street, it’s changed everything. So it was worth it –
Joyce. (Abel et al., 2010: 227)
Sex workers’ easier access to justice has also seen many cases where brothel operators
have been taken to the disputes tribunal. Most brothel-based sex workers are not employees
but independent contractors. Any tradesperson whether employed or contracted, however,
is able to take work-related issues to the disputes tribunal. Often sex workers who have a
grievance with the actions of a brothel operator are wary about following through with
legal action. Many approach NZPC who inform them of their rights and options and assist
them in the process of going through the tribunal. Up to NZ$15,000 can be claimed from a
brothel operator if (s)he is found culpable by the tribunal. There has thus been a remarkable
shift in the balance of power between workers and brothel operators in the last 10 years.
Sex workers are more able to refuse a client without management interference. Research
carried out prior to decriminalization reported that 47 per cent of brothel workers had
refused to see a client in the previous 12 months, yet research done after decriminalization
has reported that 68 per cent of brothel workers had done this (Abel, 2010). Sex workers
are utilizing their rights and have more freedom to govern their own sex work:
That has changed, yeah, because before we had to always do it, no matter what, how we felt,
we still had to do the job. Because he’s paid for your time, you’ve got to give him that time ….
And you know, back then it was like, ‘Mate, you’re just going to do, you know, as you’re told,’
sort of thing. But since it’s become legal and since I’ve been working up here, we don’t, if we
don’t want to do the job, we don’t do it, just like that – Hilda. (Abel, 2010: 234)
The sections dealing with protection during penetrative and oral sex stipulates a fine
of up to NZ$2000 for a client or sex worker who is convicted of failing to ensure
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586 Criminology & Criminal Justice 14(5)
adequate protection is used to minimize the risk of acquiring or transmitting a STI. This
is not an imprisonable offence and the police are not allowed to collect DNA should an
offence be reported. Sex worker rights groups around the world, including NZPC, are not
supportive of this clause. NZPC were particularly hesitant because it can create a sce-
nario which can be used against the sex worker by a client or by police entrapment. As
yet, neither of these scenarios has occurred. NZPC argue that the need to ensure protec-
tion could have been covered under occupational safety and health legislation. Yet the
research carried out with sex workers following decriminalization has shown widespread
support for this section of the legislation. The Ministry of Health, in collaboration with
NZPC, produced pamphlets and posters giving details about the requirements for protec-
tive oral and penetrative sex. Participants in the study said that these resources turned the
negotiation of condoms into ‘a one-sentence statement now. It is not a 10-minute argu-
ment’ (Weir et al., 2006: 21). Instead of having to argue with clients about using condoms
they could merely point to the pamphlet or poster and state that it was not them who
mandated it but the law. The onus for safe sex was thus removed from the sex worker:
We always have those pamphlets out in places where they’re pretty obvious, so the clients see
them. … They’re always right by our products, right by the side of the table on the side of the
bed. There are times where – I haven’t as yet had to basically tell them ‘no’ and hand them the
pamphlet – but I have referred to the pamphlet and referred to the information on the pamphlet
if ever they have suggested unprotected sex. Usually it’s a ‘no’ straight away, and if they bug
me, then I refer to that, and usually then they shut up quite fast. But I’ve been lucky enough not
to have anyone that wants to push the subject any further – Trish. (Abel, 2010: 261; Abel et al.,
2010: 219)
Brothel advertisements in newspapers prior to the law change sometimes stated that
the women working within the establishment were ‘clean’. This implied that sex workers
in other establishments may not be ‘clean’ and that medical certificates guaranteed
absence of any STIs. Sex workers in New South Wales, Australia, where sex work is
decriminalized are commonly required by brothel management to have periodic health
examinations (Sullivan, 2010). Section 8 of the PRA, however, acknowledges that medi-
cal certificates showing an absence of STIs are only valid at the time of testing and
endeavours to counteract discourses of sex workers as ‘dirty’ by promoting safer sex
cultures within the legislation. Should a brothel operator state or imply that sex workers
working on their premises are free of STIs as they have been medically examined they
are liable on summary conviction to a fine of up to NZ$10,000.
Section 9 which requires that sex workers and clients must adopt safer sex practices
has been used by a sex worker who took a client to court for deliberately removing his
condom without her consent during penetrative sex. The client was convicted of remov-
ing a condom during commercial sex and fined NZ$400 (Abel et al., 2010). That the sex
worker was able to report this to police and pursue this through the justice system with a
favourable outcome is testament to the increased rights afforded by a decriminalized
environment.
Undoubtedly, the ability to talk frankly about sex work in New Zealand has been the
most remarkable outcome of decriminalization. Sex workers are able to negotiate safe
sex and also what services they will (and will not) provide as well as the money attached
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to the services both in person and on the telephone without fear of entrapment for pros-
titution-related offences. Research in New Zealand has shown that over 90 per cent of
sex workers are aware of their legal and employment rights and many are arguing that
this has given them increased confidence in their interactions with clients:
Well it definitely makes me feel like, if anything were to go wrong, then it’s much more easier
for me to get my voice heard. And I also, I also feel like it’s some kind of hope that there’s
slowly going to be more tolerance perhaps of you know, what it is to be a sex worker. And it
affects my work, I think, because when I’m in a room with a client, I feel like I’m, like I feel
like I am deserving of more respect because I’m not doing something that’s illegal. So I guess
it gives me a lot more confidence with a client because, you know, I’m doing something that’s
legal, and there’s no way that they can, you know, dispute that. And you know, I feel like if I’m
in a room with a client, then it’s safer, because, you know, maybe if it wasn’t legal, then, you
know, he could use that against me or threaten me with something, or you know. But now that
it’s legal, they can’t do that – Jenny. (Abel, 2010: 241)
Wagenaar and Altink (2012) argue that in most countries prostitution policy falls within
a morality politics domain which negatively impacts on policy formulation and imple-
mentation. They characterize morality politics as being: ‘driven by explicit ideology,
almost exclusively owned by the general public, impervious to facts, discussed in emo-
tionally charged language, concerned more with the symbolism of heroic measures than
the details of implementation, and prone to sudden policy reversals’ (Wagenaar and
Altink, 2012: 285).
It can be argued that New Zealand may be unique in that the PRA cannot be charac-
terized as ‘morality politics’ and it is testament that a decade later there have been no
reversals to any part of the policy implemented in 2003. It was written into the PRA
that the legislation be evaluated within five years of enactment. The Chair of the
Prostitution Law Review Committee was a retired Police Commissioner and he ensured
that the Committee did not deviate from looking at the specific tasks of the evaluation
into ‘moralistic or political debates on sex work and the law change’ (Fitzharris and
Taylor, 2010: 108). The Committee undertook only to look at evidence-based research
and not consider unsubstantiated reports and opinions. The research that was carried
out for the review has shown that there have been many positive and few negative
outcomes of decriminalization (Abel et al., 2007; Prostitution Law Review Committee,
2008). The release of the review report met with very little media attention and no
public debate.
Current Environment of Sex Work in New Zealand
There has been little public attention given to indoor sex work since the PRA was
passed. Sex workers who work in indoor venues are relatively invisible and are able to
fly under the radar of moral indignation. Street-based sex workers, however, have not
escaped attention. There were some in New Zealand who thought that decriminaliza-
tion would mean that street-based sex workers could move to work in an indoor set-
ting. The review of the PRA, although noting the vulnerability of the street-based
sector and the positive gains made by decriminalization for those working on the street,
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588 Criminology & Criminal Justice 14(5)
also stressed the need for street-based workers to be encouraged to move to working
indoors (Prostitution Law Review Committee, 2008). At the time of writing, a Private
Members’ Bill is hearing submissions in Parliament on street-based sex work. The
Manukau City Council (Regulation of Prostitution in Specified Places) Bill (‘the Bill’)
intends to enact bylaws prohibiting prostitution in specified places in Manukau City
(part of the greater city of Auckland). There have been several arguments put forward
as a ‘solution’ to the public nuisance effects of street-based sex work to residents and
shop-owners in an area where much of the street-based activity takes place in Auckland.
If ‘the Bill’s’ proponents succeed, the most likely outcome for street-based sex work is
that territorial authorities will be granted the ability to enact bylaws to zone street-
based work. Tolerance zones will probably be located in less populated areas to reduce
visibility which will increase the vulnerability of street-based sex workers as well as
the outreach workers who have to go to these areas to carry out their work. Even in a
decriminalized environment, street-based workers are more likely than indoor workers
to have experienced refusal by a client to pay; have had money stolen by a client; to
have been physically assaulted by a client; to have been threatened with physical vio-
lence; to have been held somewhere against their will; and to have been raped (Abel,
2010; Abel et al., 2007). This situation will be exacerbated by making them work in
isolated, less public areas. Many street-based workers will refuse to work in these
areas and return to work covertly in more public areas. ‘The Bill’ would give police
power to stop vehicles and question and arrest people deemed to be operating in an
illegal area. Police will once again be seen as the enemy and the co-operation which
has been happening between sex workers and police will end. There will be implica-
tions for the human rights of this sector of the sex worker population if ‘the Bill’ is
enacted; their welfare and occupational health and safety will not be promoted and the
situation will not be conducive to public health. This will therefore be in contravention
of the purposes of the PRA. These arguments have been used in submissions against
‘the Bill’ and it seems that its momentum within the Parliamentary system has slowed
for the time being anyway.
There have been attempts world-wide to eradicate the street-based sector of the sex
industry or at least render them invisible so as not to offend the rest of the population.
Measures such as kerb-crawling laws, anti-social behaviour orders and limiting street-
based work to tolerance zones have been implemented in various parts of the world.
Soon after the Netherlands legalized sex work within licensed brothels, tippelzones
(areas where street-based workers operated) in Amsterdam, The Hague and Herleen
were closed with the idea that all sex workers could then operate from indoor venues
(Outshoorn, 2012; Scoular, 2010). In Sweden following the introduction of the crimi-
nalization of clients, there are reports that street-based workers are choosing less visible
ways to make contact with their clients (Kilvington et al., 2001; Kulick, 2003; Ostergren,
2006). This has posed a number of threats to sex workers’ health and safety by driving
the industry underground. The limited research coming out of Sweden highlights that
sex workers are finding it difficult to assess clients adequately prior to getting into their
car as clients are more nervous and wish to conduct business in a more rapid manner.
Sex workers are also reporting more emotional stress under the Swedish system
(Ostergren, 2006).
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Abel 589
Recently a debate has emerged as to whether laws regulating sex work matter or not.
Scoular (2010) has noted some common features between contrasting ways of regulating
sex work. She has drawn comparisons between Sweden and the Netherlands and noted
that both forms of regulation pay little attention to indoor work and police street-based
work in such a way as to marginalize and exclude these workers. In her blog, Agustin
(2009) disputes:
the usual assumption that these laws make reality on-the-ground very very very different. On
the contrary, if someone were to come to Earth from Mars, they would look at commercial sex
in the USA, which mostly has mean criminalising laws, and look at it in New Zealand or the
UK or Germany, and not see much difference at all. The endless debating about legal systems
to control prostitution is bizarrely irrelevant, except for its symbolic value.
Legislation is passed within the context of societal values and norms. Sex workers are
often positioned as deviant and ‘other and their presence in society challenges accepted
social norms around gender, sexuality and sexual relationships. Street-based workers, by
virtue of their visibility, do attract the most attention and moral and public nuisance dis-
courses are used to argue for their exclusion from social spaces. This was no different in
New Zealand prior to and following decriminalization. The PRA states in section 3 that
‘(t)he purpose of this Act is to decriminalise prostitution (while not endorsing or morally
sanctioning prostitution or its use) ….’ and then proceeds to state the public health, occu-
pational health and human rights purposes of the Act. Further, there was a requirement
written into the Act (sections 42–45) that it be reviewed within five years and as part of
this review, the Committee should ‘assess the nature and adequacy of the means availa-
ble to assist persons to avoid or cease working as sex workers’ (section 42 (1biii)). This
statement implies that sex workers are victims and not working in the industry of their
free will. In helping people to exit the sex industry, Scoular (2010) has commented on
how the law tries to normalize and reconstruct individuals and their actions. People are
encouraged to be self-governing and rational or face exclusion. Yet despite the moral
overtones written into the Act, implementation has largely upheld the aspiration of safe-
guarding the human rights of sex workers.
Resident sex workers in New Zealand are seen in the law as being citizens as any
other and police investigation of crime against sex workers and sentences passed down
to offenders in the justice system have reflected this. There have been three well-
publicized murders of Christchurch street-based sex workers since decriminalization.
The first two saw the murderers arrested within a short space of time and the maximum
sentence was delivered to both. The third victim, Mallory Manning, was brutally mur-
dered and her body dumped in the Avon River in December 2009. Police investigated her
murder for over three years and conducted over 1000 interviews before making an arrest
in March 2013. They suspect that more than one person was involved in Manning’s mur-
der and therefore the investigation continues. This is in stark contrast to the situation in
Canada. In this issue, Laing and O’Neill state that citizenship rights are denied to street-
based sex workers in Canada. Police have failed to take the issue of many missing street-
based workers seriously, thus framing sex workers as a disposable population.
Street-based workers are not criminalized in New Zealand and therefore the law requires
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590 Criminology & Criminal Justice 14(5)
that they are given the same legal and employment rights as any other citizen. There are
still societal discourses of street-based sex workers as deviant, immoral and public nui-
sance in New Zealand and there are attempts by some to change the law so that they can
be excluded from certain public spaces. Yet, to date, the law has protected them.
In terms of the law and street-based workers, we are arguing semantics in the cases of
abolition, criminalization of the sex worker, criminalization of the client and legalization
of licensed brothels. Sex workers working from the streets under all these forms of regu-
lation are working in an illegal environment. There is little difference whether they or
their clients are criminalized. In all cases, there is some illegality in what they are doing
and as such they are positioned as deviant and lacking the citizenship rights of the gen-
eral population. Therefore, I would dispute Agustin’s (2009) argument on her blog that
states:
Sex-worker rights activism pushes for New Zealand-type legislation. And yes, laws make a
difference to individual sex workers’ rights when being harassed or arrested. But the vast
majority of activity carries on similarly, if not identically, no matter which law is in place, and
that’s because prostitution law is often vague and unenforceable, in the end having less impact
than people assume.
The PRA is certainly not ‘vague and unenforceable’. If all the laws regulating sex work
had been scrapped following decriminalization and the protections provided by the
PRA had not been put in place, this may have been the case. As others have argued
(Scoular, 2010; Wagenaar and Altink, 2012) it is in the implementation of legislation
that the underlying intentions are lost. The way is left open for individual interpreta-
tions and values to subvert the intentions of legislation if implementation is left to local
authorities with no checks in place and this is something Canada needs to attend to
with their recent change in legislation. Although, as Warnock and Wheen (2012: 417)
argue, some fingers can be pointed at the implementation of the PRA, most notably
with regard to bylaws on location of brothels, I think that they are overstating the case
that ‘New Zealand law reform of sex work has been disingenuous’. Many sex worker
rights activists and academics have visited New Zealand in recent years. While not
from Mars, they have come from Canada, the UK, the USA, the Netherlands and
Sweden and have all been impressed not only by individual sex worker rights within
New Zealand, but also by the very different environment in which sex work happens.
New Zealand sex workers, unlike those in most other countries, although unarguably
still stigmatized to some degree, certainly have citizenship rights. They may be ‘down
under but they are not underground.
Acknowledgements
I would like to thank my research partners, New Zealand Prostitutes’ Collective, who have pro-
vided valuable input to this article.
Funding
The research drawn on in the article was funded by the Health Research Council of New Zealand
and the Ministry of Justice.
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Abel 591
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Author biography
Gillian M Abel is an Associate Professor in public health. Her research expertise is in sex work
research. She is particularly interested in concepts such as stigma and risk and how this intersects
with public health outcomes.
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Book
New Zealand was the first country in the world to decriminalise all sectors of sex work. This book provides an in-depth look at New Zealand’s experience of decriminalisation. It provides first-hand views and experiences of this policy from the point of view of those involved in the sex industry, as well as people involved in developing, implementing, researching and reviewing the policies. Presenting an example of radical legal reform in an area of current policy debate it will be of interest to academics, researchers and postgraduates as well as policy makers and activists. © The Policy Press 2010 and Chapter Eight: Ministry of Justice, New Zealand.
Chapter
The campaign for the reform of New Zealand's sex work laws took nearly two decades. Due to the increasing awareness of the injustices of the old laws, people who were to gain from the reform began networking to build the New Zealand Prostitutes's Collective (NZPC), which is a nationwide sex-worker organisation. Through the NZPC, sex workers began to build awareness and support for their cause, thus creating a space to look to the long term. This chapter traces the networking, conceptualisation, drafting, and campaign-building stages of the law reform. It also describes the process of further explanation of the law to the public and outlines the parliamentary process through which it passed. To understand the law reform on the decriminalisation of the sex industry, the chapter begins with the history of the political context operating in New Zealand at the time of the decriminalisation process. The parliamentary system operating in the country is believed to have had a great impact on the success of the Prostitution Reform Bill. The chapter concludes with some reflections on the campaign and its outcome from the perspective of Tim Barnett, a Member of the Parliament who sponsored and introduced the Bill in the parliament. It also considers the perspective of the members of the NZPC.
Chapter
This chapter provides a summary of the findings of the Prostitution Law Review Committee and its recommendations to the Minister of Justice. It was written by Paul Fitzharris, who chaired the committee. In the committee's review of the Prostitution Reform Act, two assessments were presented. One was a review conducted in April 2005 that assessed the nature and extent of the sex industry in New Zealand prior to the decriminalisation in 2003. The second review, which was conducted in June 2008, evaluated the operation of the Act. It also assessed the numbers of people working as sex workers, the nature and adequacy of the means to cease working as sex workers, and whether any amendments to the legislation were required. The review was highlighted by the ‘purpose’ of the legislation, which focused on the human rights, health, and welfare and safety of the sex workers, as well as the prohibition of young persons in the sex industry. Apart from providing a summary of the findings of the committee, the chapter also outlines the approach that the committee adopted to complete its work. This included consultation with the government agencies, local authorities, interested organisations, public, and research bodies.
Chapter
During the process of the decriminalisation of sex work in New Zealand, several sentiments arose. Of particular interest were the feminist sentiments that both opposed and supported the cause for law reform. This chapter explores the diverse New Zealand feminist views. It uses examples submitted to the Justice and Electoral Select Committee that considered the Prostitution Reform Bill. The submissions selected in the chapter are those from self-identified feminist individuals or organisations or from men and women whose arguments could be considered as feminist. Of the 222 submissions received by the committee, 56 are considered in this chapter, wherein 40 supported decriminalising prostitution and 16 opposed it. The present chapter aims to serve as a guide to achieving a good understanding of the range of arguments based on feminist ideas presented to the committee. It also includes extracts from a published article by a New Zealand feminist, and some influential international feminist literature when deemed necessary. Although the chapter considers prostitution from an international feminist view, it mainly focuses on the views expressed by New Zealand feminists.
Chapter
This chapter investigates the local-government response to the Prostitution Reform Act (PRA) of 2003, with particular emphasis on the continuing regulation of prostitution after the law reform. First, it examines the local regulatory options such as by-laws, decisions on resource consents, and district plan rules, which continue to be in operation after the decriminalisation of prostitution. Second, the chapter discusses the extent to which the local authorities have adopted these regulatory initiatives as well as the legal challenges to them. It ends by evaluating the state of affairs around local regulation and by briefly touching on the tension emerging from the local ambivalence towards the national countenance of prostitution.
Article
This paper argues that prostitution policy is less developed than more established policy domains such as health, education, social welfare, or the environment. While all policy is about the struggle over values and categories, conceptually prostitution policy can best be understood as an instance of morality politics. Without hypostatizing morality politics, we define it as having six characteristics: it is ruled by an explicit ideology; experts have limited authority as everyone feels they “own” prostitution policy; it is highly emotionally charged; it is resistant to facts; the symbolism of policy formulation is seen as more important than policy implementation; and it is subject to abrupt changes. We then analyze three implications of the adversarial nature of prostitution policy. First, we discuss the cavalier attitude of relevant actors towards precise and reliable numbers. Second, by focusing on “forced prostitution” and “trafficking”, we discuss the ideological and obfuscating nature of key concepts in prostitution policy. We suggest instead using the concept of “exploitation”. Finally, we focus on policy implementation. We argue that the common concept of policy regime has limited value and that to understand the development of prostitution policy, its outcomes, and its impact on society, attention to the mundane details of policy implementation is required. The paper suggests some conditions to prevent prostitution policy to enter the realm of morality politics and to attain an effective and humane form of policy making.