2008 Report on Prostitution Reform Act 2003
Report of the Prostitution
Law Review Committee on
the Operation of the
Prostitution Reform Act 2003
WO Crown Copyright
Published May 2008
Ministry of justice
P0 Box 180
Wellington
New Zealand
ISBN 978-0-478-29052-7
**Disclaimer
**The views, opinions, findings and conclusions or recommendations expressed in this publication are
strictly those of the author/s. They do not necessarily reflect the views of the Ministry ofJustice.
The Ministry ofJustice takes no responsibility for any errors or omissions in,
or for the correctness of, the information contained in this publication.
Foreword
This report is the culmination of five years work of a Committee that first met on 24 March 2004, with few of us knowing each other prior to that lime. We were nominated because of our specialist knowledge by the Ministers of Justice, Health, Police, Commerce, Local Government and Women's Affairs (in consultation with the Minister of Youth Affairs) and the New Zealand Prostitutes' Collective. The Committee comprised a nun, sex workers, brothel operators, a general practitioner, an academic, a city councillor, a criminologist, a public health official, social workers, representatives of non-governmental organisations (NGOs), and a retired policeman. These seem like an unlikely combination of people discussing an issue as highly charged as prostitution. With such diverse backgrounds, and perhaps differing agendas, it may have been difficult for any sense of cohesion and agreement to have emerged in our discussions.
However, the basis for working collaboratively was established through concentrating our efforts on the human rights, welfare, occupational health and safety of sex workers, and the prohibition of the use of young persons in prostitution - that is, the 'purpose' of the Prostitution Reform Act 2003 (PRA). This collaboration was achieved through deliberately not focussing on the political or moral aspects of the sex industry, as is frequently done by those advocates for and against its decriminalisation. We recognised that the legislation was a shift from a moralist approach to prostitution to a health and human rights approach. It was stipulated early in our deliberations that, as much as possible, our report should be substantiated through evidence-based research. This approach brought a disparate Committee together to do real work, and over time form bonds that made the Committee work effectively. Although we did not all agree all the time on various aspects of our work, all Committee members were able to work together professionally to achieve this report.
We were supported in this regard by officials from the Ministry of Justice who at times pulled us up to ensure the maintenance of evidence-based discussions. We restrained ourselves from responding to what, at times, were provocative statements in the media. We suspected such comments were gross exaggeration and hyperbole; some were certainly uninformed comments, especially in the early days of the life of this legislation. We were determined not to make any statements until we had the benefit of all the research that we had commissioned.
The Committee fulfilled the first of its statutory purposes, to assess the number of sex workers in New Zealand at the time of decriminalisation through the release of its first report, The Nature and Extent of the Sex Industry in New Zealand- An Estimation, in 2005.
The Committee was required to wait until three years had elapsed from the commencement of the PRA (Section 42(1)(b)) before conducting the research and other work to inform this report. The major influence of our methodology was determined by the work of Dr Elaine Mossman of the Crime and Justice Research Centre of Victoria University through her Evaluation Framework for the review of the PRA. Three major phases of research and work were the foundation of this report.
The Impact of the Prostitution Reform Act on the Health and Safetji Practices of Sex Workers by the Department of Public Health and General Practice, University of Otago, Christchurch. This study included a survey of 772 sex workers.
Key informant interviews with NGOs, brothel operators and community groups and a literature review of overseas models of prostitution law reform by the Crime and Justice Research Centre of Victoria University.
Gathering of information from government agencies and local authorities by the Ministry of Justice.
The Committee is aware that during the period research was conducted for this report the New Zealand economy was performing well and unemployment was at record lows. It is not known what impact these factors may have had on the nature of the sex industry.
This report reflects the detailed research undertaken, as well as the Committee's collective experience. We are confident this comprehensive report offers practical recommendations to the Government and the public about prostitution issues.
Acknowledgements
The process of gathering information for and writing the Committee's report has involved many people. The Committee would like to take this opportunity to thank everyone involved throughout the last five years work. The Committee wishes to acknowledge the support provided by Ministry of Justice officials, in particular, Victoria Crawford, Jo Gascoigne, Carey Hibbert, Angela Lee, Lisette Nolan, Chelly Walton, Fiona Jackson, Rebecca Crowe, Carrie Gage, and Sue Easthope. Support was also provided by contractors Vivienne Morrell, Judith Spier, and Martin Lee.
This report would not have been possible without the work of researchers from Otago University's Christchurch School of Medicine: Gillian Abel, Dr Lisa Fitzgerald, and Cheryl Brunton, and from Victoria University's Crime and Justice Research Centre: Dr Elaine Mossman and Pat Mayhew.
The New Zealand Prostitutes' Collective also provided invaluable information for this review. The Committee wishes to thank Calum Bennachie for undertaking the advertisement audits. The Committee also wishes to thank Calum, Annah Pickering and Anna Reed for arranging for the Committee to view brothels, and the brothel operators who allowed the Committee to visit their businesses.
The Committee also wishes to acknowledge the input of government agencies. This report has benefited from information supplied by the Ministries of Justice, Health, Social Development, Youth Development, and Women's Affairs, the Department of Labour, Inland Revenue, and the New Zealand Police. Local Government New Zealand provided invaluable assistance in canvassing the views of territorial authorities. The Committee wishes to thank all the territorial authorities who provided feedback on the impact of the PRA.
The Committee also received submissions from interested organisations and members of the public, including a petition presented via the Justice and Electoral Committee. The Committee considered all the points made by these submitters and would like to thank them for their input.
Table of Contents
Foreword 3
Acknowledgements 5
Table of Contents 6
List of Tables 11
Executive Summary 13
- Introduction 21
1.1 Legal Situation Prior to the PRA 21
1.2 The Prostitution Reform Act 2003 (PRA) 22
1.2.1 Passage of the PRA 22
1.3 Purpose and Main Features of the PRA 22
1.3.1 Prohibitions on Use in Prostitution of Persons Under 18 Years 22
1.3.2 Health and Safety Requirements 23
1.3.3 Small Owner-Operated Brothels 23
1.3.4 Brothel Operator Certification System 23
1.3.5 Territorial Authorities May Make Bylaws 23
1.4 Review of the PRA 24
1.4.1 The Committee Process 24
1.4.2 Statutory Purpose 24
1.4.3 Additional Matters Considered 24
1.5 Report Based on Research 25
1.5.1 University of Otago's Christchurch School of Medicine 25
1.5.2 Victoria University's Crime and Justice Research Centre 26
1.5.3 Other Research Used 27
1.5.4 Ministry of Justice 27
- Estimation of the Numbers of Sex Workers in New Zealand 29
2.1 Introduction 29
2.1.1 Caution Regarding Estimates 29
2.2 Baseline Data From the Committee's First Report 30
2.2.1 Survey of New Zealand Police 30
2.2.2 First Advertisement Audit 31
2.3 Recent Estimates of the Numbers of Sex Workers in New Zealand 32
2.3.1 Estimation of Numbers of Sex Workers 32
2.3.2 2007 Re-estimation 34
2.3.3 Auckland Results 34
2.3.4 Comparison with 1999 Christchurch Study 35
2.4 Further Advertisement Audits 35
2.5 Advertisements for Vacancies 38
2.6 Changes in the Sex Industry Since Decriminalisation 39
2.6.1 Advertising Practices 39
2.6.2 Technology 39
2.6.3 Decriminalisation as a Reason for Entering the Sex Industry 39
2.6.4 Claims that Numbers Have Increased 40
2.7 Committee's Conclusion 40
3 The PRA and Human Rights 43
3.1 International Conventions 43
3.1.1 Case Law 44
3.1.2 Sex Workers' Perceptions 44
6
3.2 Right for :\dults Not to be Forced to Engage in Sex Work 45
4 Health, Safety and Well-being 49
4.1 General Health of Sex Workers 49
4.1.1 Safer Sex 50
4.2 Occupational Health and Safety Requirements and Rights 51
4.2.1 Knowledge of OSH Requirements and Rights 51
4.2.2 Adherence to OSH Requirements 53
4.3 General Safety of Sex Workers 55
Avoiding or Exiting the Sex Industry 61
5.1 Introduction 61
5.2 Reasons for Entering and Remaining in the Sex Industry 61
5.2.1 Entering the Sex Industry 61
5.2.2 Expected Length of Stay in the Sex Industry 64
5.2.3 Taking 'Breaks' from the Industry 66
5.2.4 Remaining in the Sex Industry 67
5.3 Impact of the PRA on Exiting 69
5.4 Exiting the Sex Industry 70
5.4.1 Sex Workers Who Do Not Wish to Exit 70
5.4.2 Sex Workers Who Want to Exit 73
5.4.3 Reasons for Wishing to Exit 73
5.4.4 Barriers to Exiting 75
5.5 Best Practice for Exiting 77
5.5.1 Holistic Approach 78
5.5.2 Dealing with Changes of Mind 79
5.5.3 Facilitating Free Choice 79
5.5.4 Dedicated Services and 'Brokerage' 79
5.5.5 Building Trusting Relationships 79
5.5.6 Adequate Resourcing 79
5.5.7 Public Education 80
5.5.8 Outreach 80
5.5.9 Location of Services 80
5.6 Support for Those Who Wish to Exit Currently Available 81
6 The Brothel Operator Certification System 85
6.1 Introduction 85
6.1.1 Rationale Behind the System 85
6.2 How the System Operates 86
6.2.1 Who Requires a Certificate? 86
6.2.2 The Application Procedure 87
6.2.4 Penalties 89
6.2.5 Register of Brothel Operators 89
6.2.6 Licences Required under Local Bylaws 89
6.3 Victoria's Brothel Licensing Regime 90
6.3.1 How Victoria's Regime Operates 90
6.3.2 Criticism of the Victorian Licensing Regime 90
6.4 The New Zealand Certification System 91
6.4.1 Information From Brothel Operators 91
6.4.2 Small Owner-Operated Brothels 91
6.4.4 Brothel Operators' Comments on Inspections 93
6.4.5 Numbers of Operator Certificates Issued 93
6.5 Does the Current System Work? 93
6.6 The Way Forward 94
6.6.1 Who Should Require a Certificate? 94
6.6.2 Who Should be Eligible for a Certificate? 94
6.6.3 Information Should be Provided when Certificates Issued 94
6.6.4 Should Certificates be Linked to Businesses? 95
6.6.5 Period of Certification Validity 96
6.6.6 Administration of the Certification System 96
6.6.7 Brothel Inspections 96
6.6.8 Amendment to the PRA 97
6.7 Recommendations 97
7 The Use of Under Age People in Prostitution 99
7.1 Introduction 99
7.2 The Threshold for Providing Commercial Sexual Services 99
7.3 International Legislation 100
7.4 The Nature of Under Age Prostitution 101
7.4.1 The Number of Under Age People Used in Prostitution in New Zealand101
7.5 Street-Based Under Age Prostitution 102
7.6 Reasons for Under Age Involvement in Prostitution 103
7.7 Harm Done 104
7.8 Prosecutions and Convictions 105
7.8.1 Difference Between the Crimes Act Offence and the PRA Offences 105
7.8.2 Charges Under Sections 20 - 22 of the PRA 105
7.9 Sentences Under Sections 20 - 23 of the PRA 107
7.10 Role of Police 109
7.11 Social Support for Young People Involved in Under Age Prostitution 111
7.11.1 Non-Governmental Social Support 111
7.11.2 Government Programmes 111
7.12 Options 112
7.12.1 Amending the PRA 112
7.12.2 Amending the Children, Young Persons and Their Families Act 1989 113
7.12.3 Changes to the Independent Youth Benefit 113
7.12.4 Social Support and a Multi-Agency Approach 114
[] Street-Based Sex Workers 117
8.1 Introduction 117
8.1.2 Historical Perspective 117
8.2 The Nature of Street-Based Sex Work 118
8.2.1 Numbers 118
8.3 Reasons for Working on the Streets 119
8.3.1 A Matter of Choice or Circumstance 119
8.3.2 Demographic Factors 120
8.4 Impact of the PRA on Street-Based Sex Workers 121
8.4.1 Role of Police 121
8.5 Is There a Problem? 122
8.5.1 The 'Problem' of Street Work for Sex Workers 122
8.5.2 Christchurch Murders 122
8.5.3 Drugs and Alcohol 123
8.5.4 Access to Health Services 123
8.5.5 Social Marginalisation 123
8.6 Objections to Street-Based Sex Work 124
8.6.1 Social Nuisance 124
8.6.2 Means Available to Deal with Social Nuisance 125
8.7 Options 125
8.7.1 Local Government Initiatives 125
8.8 International Experience 126
8.8.1 British Approaches: Targeting Kerb-Crawlers and Anti-Social Behaviour
Orders 127
8.8.2 The Swedish Model: Prohibition of Purchase 127
8.8.3 Safe-House Brothels in Sydney 128
8.8.4 Dutch Tolerance Zones 129
8.9 Support Strategies 129
8.10 Why Legislation is Not the Answer 130
8.11 PLRC Position on Street-Based Sex Work 131
8.11.1 Street Workers Should be Supported to Work Safely and with Consideration for Local Communities 131
8.11.2 Street Workers Should be Encouraged to Stop Working on the Streets 132 8.11.3 Legislative Approaches to Problems Associated with Street-Based Sex
Work Should be Avoided 132
8.11.4 Local Government Should Adopt Practical Solutions 132
9 Response of Territorial Authorities to the PRA 135
9.1 Introduction 135
9.2 Local Government 135
9.2.1 Introduction to Local Government in New Zealand 135
9.3 Role of Territorial Authorities under the PRA 136
9.4 Results of Questionnaire 137
9.5 Other Mechanisms Available to Territorial Authorities 139
9.5.1 The Local Government Act 2002 139
9.5.2 'Soliciting and Touting' 140
9.5.3 The Carterton and Queenstown Bylaws 140
9.5.4 The Resource Management Act 1991 140
9.5.5 The Health Act 1956 141
9.5.6 Non-PRA Bylaws, Other Statutes and Non-Legislative Responses 141
9.6 Local Government's Approach to Small Owner-Operated Brothels 142
9.7 Legal Challenges to Bylaws Regulating the Sex Industry 143
9.8 Should the PRA's Bylaw Making Power be Amended? 146
9.9 The Manukau City Council's Concerns About Street-Based Sex Work 146
10 Employment Conditions 151
10.1 Introduction 151
10.2 The Sex Industry Prior to 2003 151
10.3 Employment Rights After Decriminalisation 152
10.3.1 The Status of the Sex Industry 152
10.3.2 Fines, Bonds and Fees 153
10.4 Employment Status of Sex Workers 155
10.5 Employment Contracts in the Sex Industry 157
10.6 The Formalisation of Employment Relationships 158
10.7 Next Steps 159
11 Common Misconceptions About Prostitution 163
11.1 Coercion 163
11.2 Links with Crime and Gangs 163
11.3 Drug Use 164
11.4 Media Influence on Public Perception 164
12 Invisibility of Clients 165
12.1 Who Buys Sex? 165
12.2 Why Men Buy Sex 165
12.3 Criminalising Clients 166
13 Trafficking 167
14 Conclusion and Future Review 168
References 169
Appendix 1 174
Prostitution Law Review Committee Members 174
Appendix 2 177
Glossary of Terms and Abbreviations 177
List of Tables
Table 1 Numbers of Sex Workers by Police District and Sector of Sex Industry, Prostitution
Law Review Committee, 2005 31
Table 2 Estimation of Numbers of Sex Workers in Five Areas of New Zealand in
February/March 2006 33
Table 3 Re-estimation of Numbers of Sex Workers in Five Areas of New Zealand in June -
October 2007 34
Table 4 Estimations of Sex Workers in Christchurch in May 1999 and February 2006 35
Table 5 Wellington Commercial Sexual Services Advertisements 2003 - 2007 by Source 36
Table 6 Wellington Commercial Sexual Services Advertisements 2003 - 2007 by Type 37
Table 7 Auckland Commercial Sexual Services Advertisements 2003 - 2007 by Source 37
Table 8 Auckland Commercial Sexual Services Advertisements 2003 - 2007 by Type 38
Table 9 Sex Workers' Perceptions of Rights Under the Act by Sector 44
Table 10 Ability to Refuse Clients in Last 12 Months by Sector 46
Table 11 Adverse Experiences while Working in the Last 12 Months by Sector 56
Table 12 Reasons for Entry into Sex Work in Each Sector 63
Table 13 Expected Length of Stay in the Sex Industry by Years of Working in the Industry.65
Table 14 Breaks from Sex Work in Each Sector 66
Table 15 Reasons for Staying in the Sex Industry in Each Sector 68
Table 16 Perceived Benefits of Sex Work by Sector 72
Table 17 Pathways to Exiting (Sanders, 2007) 75
Table 18 Sector of Original Employment by Sector of Current Employment in the Sex
Industry 76
Table 19 Summary of Best Practice Principles for Exiting Interventions 78
Table 20 Numbers of Charges Brought Under Sections 20 -22 of the PRA, by Outcome and
Offence, 27 June 2003 —31 March 2008 106
Table 21 Number of Disposed Charges Brought Under Sections 20-22 of the PRA by District
Court, 27 June 2003 —31 March 2008 107
Table 22 Sentence Types Imposed for Convicted Charges Laid Under Sections 20 - 22 of the
PRA, by Offence, 27 June 2003 to 31 March 2008 108
Table 23 Custodial Sentences Imposed Under Sections 20-22 of the PRA, by Case, 27 June
2003 to 30 November 2007 108
Executive Summary
Introduction
This report presents the Prostitution Law Review Committee's (the Committee) review of the operation of the Prostitution Reform Act 2003 (PRA) three to five years after the Act's commencement, in June 2003. The purpose of the PRA was to decriminalise prostitution (while not endorsing or morally sanctioning prostitution or its use); create a framework to safeguard the human rights of sex workers and protect them from exploitation; promote the welfare and occupational health and safety of sex workers; contribute to public health; and prohibit the use in prostitution of persons under 18 years of age. The PRA also established a certification regime for brothel operators. This report fulfils the Committee's obligations to report on specific matters and make recommendations to the Minister of Justice on its findings.
The Committee's report is research based and draws heavily on the work of the Christchurch School of Medicine (CSOM) and Victoria University's Crime and Justice Research Centre (CJRC). The CSOM and CJRC reports are available on the Ministry of Justice website: www.Justice.govt.nz.
Estimation of the Number of Sex Workers in New Zealand
Baseline estimates of the size of the sex industry were provided in the Committee's first report, The Nature and Extent of the Sex Industry in New Zealand: An Estimation (2005). To the extent possible, the baseline data is compared with more recent estimates carried out for this report. However, caution must be applied to any estimate of the numbers of people involved in the sex industry. Direct comparisons between pre- and post-decriminalisation figures are possible only for Christchurch where an estimation using comparable methods was undertaken in 1999 (CSOM, 2007).
In the Committee's first report it was estimated that there were 5,932 sex workers in New Zealand. The current report estimates the number of sex workers to be 2,332 in the areas included in the study. The Committee does not consider that this means the numbers of sex workers in New Zealand have declined by 3600 over five years. Rather, the different estimates are the result of the limitations of the initial data collection methods, and the more robust methodology used to estimate numbers in the current report.
The research divides the industry into three sectors: private indoor workers, street-based sex workers, and managed workers (generally those working in brothels). A 2007 estimation of numbers of sex workers in five centres (Auckland, Wellington, Christchurch, Hawke's Bay and Nelson) found a total of 2332 sex workers. A comparison between the number of sex workers in Christchurch in 1999 and 2006 shows that the total has stayed approximately the same over that period. The study does not indicate that there has been any increase in the number of street-based sex workers in Christchurch over that period, contrary to some public perceptions.
Accurately counting the number of sex workers remains difficult. However, the Committee endorses the findings of the CSOM that the enactment of the PRA has had little impact on the numbers of people working in the sex industry.
The PRA and Human Rights
It is important to determine the exact nature of the human rights that must be safeguarded when considering the human rights aspect of the purpose of the PRA. There is no fundamental human right not to be discriminated against on grounds of occupation.
After considering international human rights to which New Zealand is a signatory, New Zealand case law, and the views of sex workers, the Committee concludes that the PRA safeguards the following rights: the right of those under 18 not to be used in sex work; the right of adults not to be forced to engage in sex work, including the right to refuse a particular client or sexual practice; and the right not to be subject to exploitative, degrading employment practices.
When surveyed by CSOM about their perception of rights protected by the PRA, over 90% of sex workers in each sector felt that they have legal rights under the PRA. Over 60% of sex workers in each sector felt that they were more able to refuse to provide commercial sexual services to a particular client since the enactment of the PRA.
The Committee concludes that the PRA has had a marked effect in safeguarding the right of sex workers to refuse particular clients and practices, chiefly by empowering sex workers through removing the illegality of their work. The Committee is very concerned that it appears there are still some managed sex workers who are being required by brothel operators to provide commercial sexual services against their will on occasion.
Health, Safety and Well-being of Sex Workers
Both the CSOM and CJRC reported high use of condoms throughout the industry. However, this was not necessarily due to the legal prohibition on the provision of unsafe commercial sexual services. Many said that they had always practised safe sex. It was generally felt that most sex workers had already adopted such practices as a result of the effective HIV/AIDS prevention campaign that was established in the late 1980s. Studies show a very low rate of HIV/AIDS incidence amongst sex workers.
The PRA brought the sex industry under the Health and Safety in Employment Act 1992. Research indicates that there is a high level of awareness of Occupational Safety and Health (OSH) requirements in the sex industry, but compliance cannot be measured as there is no system of regular inspections of brothels by Medical Officers of Health, and the Department of Labour.
The majority of sex workers interviewed felt that the PRA could do little about violence that occurred, though a significant minority thought that there had been an improvement since the enactment of the PRA. Of those feeling in a position to comment, the majority felt sex workers were now more likely to report incidents of violence to the Police, though willingness to carry the process through to court is less common.
Avoiding or Exiting the Sex Industry
Research identified a combination of push and pull factors at play of people entering, remaining and exiting the sex industry. The most common reason for entering the industry across all sectors is financial. Around 93% of sex workers surveyed by CSOM cited money as a reason for both entering and staying in the sex industry. The most effective way to ensure people do not enter the sex industry is to help them find other means of earning money. Second, exiting the industry is difficult, and often involves several attempts. Third, by no means all sex workers want to exit, and some sex workers find it offensive that they should be being offered assistance to leave a job where they are quite happy. There are as many reasons for exiting as there are reasons for entering the sex industry and a 'one size fits all' approach to support and assistance in exiting will not be appropriate.
Despite the perception that most sex workers are coerced into entering the sex industry, only a very small number of sex workers reported being made to work by someone else at the time of entry and after (an average of 3.9% across the three sectors).
The most significant barriers to exiting are loss of income, reluctance to lose the flexible working hours available in the sex industry, and the camaraderie and sense of belonging that some sex workers describe.
The CJRC was commissioned by the Committee to provide a model of best practice for assisting sex workers to exit the industry. The Committee recommends that this practice be adopted in New Zealand. There is currently little dedicated support available for those wishing to exit the sex industry. The Committee recommends that central government make available adequate funding for non-governmental organisations (NGOs) to provide a range of services to the sex industry, including assistance with exiting for those who wish to exit.
The Brothel Operator Certification System
The Committee was charged with considering whether the brothel certification regime is effective or could be improved, whether any other agency or agencies could or should administer it, and whether a system is needed for identifying the location of businesses of prostitution.
The Committee recommends that the eligibility criteria for holding a certificate be maintained, with the addition of a criterion that a certificate holder must be willing to facilitate inspections. The Department of Labour should be the lead agency to manage the inspection of brothels. Information about good employment practices and where to obtain further advice and support should be supplied with brothel operators' certificates. The register should continue to be administered by the Auckland District Court, and there need not be a requirement to link certificates to businesses. Certificates should remain valid for three years from issue.
The Use of Under Age People in Prostitution
The PRA makes it an offence to arrange for or to receive, or to facilitate or receive payment for, commercial sexual services from a person under 18. The offences carry a maximum penalty of seven years' imprisonment. It is not an offence for a person under the age of 18 to provide commercial sexual services.
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