Sex work: Sex work: Are sex-workers in decriminalised or regulated legal environment just normal workers?

Annick Masselot, Associate Professor in Law, University of Canterbury, NZannick.masselot@canterbury.ac.nz

4th European Conference on Politics and Gender (ECPG)11-13 June 2015, Uppsala, Sweden

Prostitution and sex workers: Alphabet Soup

Prostitution can be described as the “offering or undertaking of sexual actions for payment”

A sex worker is “a person who provides commercial sex services”

Both terms are often used interchangeably; however prostitution is the business, or business sector, while sex workers are the workers, or employees.

Legalised/Regulated and Decriminalised prostitution

• Legalised or regulated jurisdictions recognise that legalising prostitution is necessary for social stability, but see restriction as essential for public order and health. The Netherlands, Germany, the USA state of Nevada, and many Australian states (Victoria, Queensland, ACT and Northern Territory).

• Under decriminalised jurisdiction, there is no prostitution specific criminality associated with the industry. Decriminalised systems emphasis the human rights and working conditions of individual sex workers over that of social order and public health. Only in New Zealand and New South Wales (Australia)

Jurisdictions under study

• The Prostitution Reform Act (PRA) in June 2003 legalized commercial sex work in New Zealand.

• New South Wales has effectively decriminalised prostitution since 1995. Sex work laws can be found in the Summary Offences Act 1988, the Restricted Premises Act 1943, and the Environmental Planning and Assessment Act 1979.

• The Netherlands (not today)• Germany (not today)

A normal economic activity?

• Sex-work in decriminalised or regulated system is considered to be a “normal” economic activity.

• Standard law applies to sex-workers sometimes with adaptions

• Is there needs to further adapt the standard provisions to better serve the need of sex-workers?

How does the law work? Does it work? / Does it not work?Access to real justice?

• Utilisation of the concept of “capacity to work” – What are the enablers / barriers to work?

Areas of Law Enabler/barriers

Contract Contractual capacity: age

Employment Employers’ authority to define work Work related injury coverOccupational pension

H&S Adequate and safe work conditions – STI

Social welfare Access to social insurance/security benefits

Immigration status Citizen / Working visa

Tax Ability to declare and pay tax

Employment law• The Acts extends the shield of employment law

coverage to sex workers

NZ - Section 17 PRA: sex workers can refuse to provide commercial sexual services, regardless of any contractual or employment agreement. This is unique in an employment context – It allows workers to refuse to fulfill an essential element of their job.

NSW - Sex industry workers are protected by all the laws concerning: wages; annual holidays; long service leave; unfair dismissal and workers compensation.

• NSW Industrial Relations laws give workers the right to take court action to recover lost wages.

• Workers are either employees or contractors

Capacity to work - age• Legal age of sex-worker is 18NZ: S. 20-24 of PRA prohibit the use in prostitution of persons under 18NSW: Child prostitution offences contained in Crime Act 1900 (Crimes (Child

Prostitution) Amendment Act 1988)• The Acts criminalises assisting, contracting and receiving

earnings from persons under 18 in relation to commercial sexual service.

• Underage sex worker is considered to be the victim of a crime, not an offender. In NSW under age person is a child. Antonio Salvatore v R [2009] NSWCCA 104

• Client can be under-aged. Legal age of consent for sexual activity in NZ and NSW is 16. Client can be under-aged but under 18 cannot enter sex services premises or ‘brothels’

• The prohibitions in NZ are strict liability offences. R v Prendeville and Campbell DC Wellington 0855975/05, September 2005

Health and safety

• General terms of H&S apply:The PRA aims to promote the welfare, health and

occupational safety of sex-workers. Health and Safety in Employment Act 1992 covers sex workers

Regular workplace consultation with employees to revise risks and hazards, to be followed by providing and maintenance of equipment for safe workplace.

E.g. adequate rest breaks for workers, screening clients on admission of premises, and panic buttons.

Health and Safety: Specific obligations• NZ: S 8 Obligations of the operator of business: Onus

on employers to meet minimum requirements to promote safer sex practices

• NSW: a lot of specific H&S obligations E.g.: Specific lighting standard (“320 lux lighting level be used

(Australian Standards – AS/NZ 1680.2.5:1997)”) for examining clients are STI free; Material and on-going education on safe sex practices must be provided

• Workplace Injury Management and Workers Compensation Act 1998 requires insurance policy taken by owners, employers keep wages record for 7 years

• Employer’s Insurance to compensate wages when worker is injured

Conclusions• Gap between the law and practices• Impact of distrust, social stigma and stereotyping• Assumption that sex workers are regular workers • Lack of adequate H&S and labour inspectionsThere is no established regime to ensure that the brothel operators are

promoting the welfare and occupational safety of managed sex workers in NZ. Education in NSW

• Requirement of legal knowledge / educationImportance of Union. The NZPC in NZ and the Scarlett Alliance

(Australian Sex Workers Association) + Sex Workers Outreach Program (SWOP NSW) facilitate the application of the law on the ground by providing education, advocacy, business advice, training etc.