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Decriminalising sex work in New Zealand: its history and impact

The New Zealand experience of decriminalised sex work offers a practical alternative to the often-cited Swedish Model. Might it point to a more general way forward?

Photo provided by author.

The ‘Swedish model’ in prostitution policy criminalises the purchase of sexual services in the belief that sex workers can be made safe only by ending demand. Countries such as Sweden, Northern Ireland and Norway have adopted this model, and mainstream media coverage often cites the approach positively. Feminist organisations such as the Coalition Against Trafficking in Women (CATW) and the European Women’s Lobby also promote this approach, as they believe sex work contributes to violence against women through male entitlement and objectification.

Sex workers, however, believe the Swedish model puts their lives at risk and undermines their human rights. Critiques of the Swedish model do appear, but it’s rare to see coverage with empirical evidence and lived experience of a real alternative. Over the last twelve years New Zealanders have quietly experienced a radically different, uniquely tolerant, and successful model that decriminalises sex work.

The New Zealand Prostitution Reform Act (PRA) fully decriminalised sex work in 2003. In New Zealand it is legal for any citizen over 18 years old to sell sexual services. Street-based sex work is legal, as is running a brothel. Sex workers’ rights are guaranteed through employment and human rights legislation.

The road to decriminalisation

Tim Barnett and Catherine Healy know more than anyone about the battle for decriminalisation, and I base this article on interviews I conducted with both of them earlier this year. Barnett, a former MP and the current general secretary of the Labour Party, became involved with the PRA shortly after he won his first campaign for Christchurch Central’s parliamentary seat in 1996. He did so on the request of Catherine Healy, the national coordinator of the New Zealand Prostitutes Collective (NZPC), who actively sought out his support for decriminalisation after the election. Founded in 1987 as part of a national strategy to combat HIV/AIDS, the NZPC is a government-funded body working to advance the health, education, and rights of sex workers. He agreed.

Barnett entered into an already vibrant political field. The Massage Parlours Act of 1978 was, nearly a decade after its implementation, suddenly causing controversy because police had announced that the legislation effectively allowed indoor commercial sex work. As a result, a working group comprised of NZPC and mainstream liberal feminist groups—such as the National Council of Women of New Zealand (NCWNZ) and the National Collective of Independent Women’s Refuges—began work on a pro-decriminalisation reform bill. Barnett took that draft bill to his party, which backed it as a conscience vote. Then, shortly after the 1999 election, he found himself in a position to bring the bill to parliament. It passed on first reading by 87 to 21 votes.

A committee heard 222 submissions of input over the next two years, of which 56 could be considered feminist. Forty of these submissions, which came from groups as diverse as NZPC, the New Zealand Federation of Business and Professional Women, the Young Women’s Christian Association, and the AIDS Foundation supported decriminalisation. The other sixteen, which came from CATW international, CATW NZ’s Ruth Margerison, and anti-abortion advocate Marilyn Prior, among others, supported the Swedish model. The committee ultimately reported in favour of decriminalisation, and the bill passed its second reading by a narrow margin of eight votes in 2002.

In 2003 New Zealand was governed by a more conservative parliament and the bill generated intense opposition from evangelical Christians. “You could write a whole book about the last week of people changing their minds for and against”, said Barnett. There was, however, broad public support from the Family Planning Association, the public health sector, and the gay community for decriminalisation. At the third and final reading, the PRA passed by 60 votes to 59 with one abstention.

Barnett believes that support came from a number of motivations, “It was taking the weight of the state off of people’s shoulders, which appealed to libertarians,” he explained. “At the same time, it was promoting equity of women and the great majority of sex workers are women, and it diverts police resources to where they can more usefully be used”.

In retrospect

Opponents of the PRA had feared its introduction would lead to an explosion of brothels and of human trafficking, and in response to this a review was built into the new legislation. Five years after its introduction the Prostitution Law Review Committee found:

The sex industry has not increased in size, and many of the social evils predicted by some who opposed the decriminalisation of the sex industry have not been experienced. On the whole, the PRA has been effective in achieving its purpose, and the Committee is confident that the vast majority of people involved in the sex industry are better off under the PRA than they were previously.

The review committee also tasked the Christchurch School of Medicine (CSM) with carrying out an independent review. Quantitative and qualitative methods found that over 90 percent of sex workers believed the PRA gave them employment, legal and health and safety rights. A substantial 64 percent found it easier to refuse clients. Significantly, 57 percent said police attitudes to sex workers changed for the better. 

Healy views these results as evidence of success. “New Zealand has now had twelve years of working it’s way through decriminalisation”, she said. “I think there are situations that need to be improved on, but I think in the main we’ve seen an industry that has evolved and developed new and important relationships.” Barnett was more concise in his evaluation of the PRA: “It protected the rights of the people it set out to protect”.

Indeed, one of the most significant legislative impacts has been the relationship between the police and sex workers. “Prior to decriminalisation, there had been relationships, but usually they were untrustworthy”, Healy explained. “You didn’t feel that the police were there to protect you”. This unhappy relationship is obviously not unique to New Zealand, a fact amply demonstrated in the 2009 report Arrest the Violence: Human Rights Violations Against Sex Workers in 11 Countries in Central and Eastern Europe and Central Asia. However, Healy detected a marked change in police-sex worker relations after passage of the PRA. “After decriminalisation that dynamic shifted dramatically, and importantly the focus on the sex worker wasn’t on the sex worker as a criminal. It was on the rights, safety, health and well being of the sex worker”.

Eroding stigma, reclaiming rights

While decriminalisation has not been a cure for all ills—employers may still discriminate based on previous occupation, and there has been some recent controversy regarding under-age street workers in Auckland—sex workers in New Zealand are beginning to assert their rights now that the stigma associated with sex work has begun to decrease.

Last year, for example, a sex worker from Wellington successfully prosecuted a brothel owner through the Human Rights Review Tribunal for sexual harassment by her employer. She was awarded NZ$25,000 for emotional harm. “As a new generation of sex workers begins in an environment where things are fairer,” Barnett explained, “they will slowly find that they are not working in an environment where that behaviour is tolerated”.

Barnett sees the continued campaign for the Swedish model as misguided, as the criminalisation of sex workers increases their vulnerability by reinforcing the perception that they are somehow victims.  “Some of the people who are sellers are personally really vulnerable, but it is the law that can protect them. It is the law and their legal status that can uphold their rights”, he said. “[Their] lack of humanity is reinforced by bad law. [In these cases,] the state is actually helping the objectification, the state is helping the oppression”. Barnett opposes demand-focused legislation as he believes its only effect is to drive workers underground.

Healy also had little patience for those continuing to advocate for the Swedish model. “There is a determined effort on the part of some radical feminists to undermine the rights of women who are sex workers to self determination in the context of sex work”, she said. “Fortunately NZ law frames up the rights of sex workers and does not seek to undermine them.”

The Swedish model was considered but roundly rejected in New Zealand. Instead, parliament prioritised sex workers’ rights and listened to the voices of feminists and sex workers before voting for decriminalisation, trusting that they were best placed to talk about their own work. Indeed, the importance of listening is—by far—the most crucial lesson to be learned from the New Zealand experience. “Affected communities usually know best about the way their lives can be improved”, Healy said. “We were able to take our ideas as sex workers to sympathetic MPs and work closely with others in and outside of government to influence the legislative changes that would have a direct bearing on not only our work but also our lives.”

Fraser is currently working on a follow up to this article that will document the lived experiences of New Zealand sex workers and operators under decriminalisation in their own words.

Correction (14 Sept 2015): The original version of this article stated that the legal age at which one may sell sexual services in New Zealand is 16. While the age of consent is 16 in New Zealand, the legal age at which sexual services may be sold is 18.

About the author

Fraser Crichton is a freelance writer and documentary photographer living in Melbourne. He works on projects with sex workers in Australia and New Zealand that examine stigma and collective power.

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