Sex worker protections needed two decades after decriminalisation

Analysis - It has been two decades since New Zealand decriminalised sex work. And while sex workers have workplace rights, they still worry about the risks of discrimination in everyday life.

In my recent research, local sex workers explained the benefits of decriminalisation - and what still needs to change. Their experiences highlight that while much has changed for the better, stigma remains an issue. Further change is needed to better protect sex workers from it.

New Zealand's experience is relevant right now, as a number of governments elsewhere are reviewing their laws around sex work.

Scotland, for example, is considering a proposal that would criminalise the purchase of sex - known as the Nordic model due to its initial adoption in some Nordic countries.

Supporters argue this will help sex workers and extend gender equality. But evidence suggests the Nordic model actually harms sex workers: it impedes safety strategies, increases the risk of violence, limits access to justice, and enables discrimination.

What is decriminalisation?

The other options are decriminalisation and legalisation. While these terms are often used interchangeably, they are different. Legalisation of sex work (in Germany and the Netherlands, for example) means legalising an act that was previously against the law.

For sex workers, this means restrictive government regulation and control, which may include mandatory registration with authorities, compulsory sexual health checks, and permission to work in specific areas only.

Decriminalisation, on the other hand, means repealing laws that make an act or behaviour a crime, but not necessarily introducing restrictive regulations specific to the sex industry.

That said, decriminalisation does not mean there is no regulation. Instead, regulations are comparable to other businesses. The focus is not on regulating sex workers, but providing them with rights.

Under New Zealand's Prostitution Reform Act (2003) it is an offence to induce or compel a person to do sex work. Sex workers have the right to refuse to see clients for any reason at any time. If a sex worker wishes to stop doing sex work, they can access unemployment benefits immediately (rather than having the normal stand down period).

Impacts of decriminalisation in New Zealand

Research three years after the law came into force found a majority of participants felt they had more rights and were more able to refuse to see clients than before. Several participants felt police attitudes towards them had improved.

Subsequent research found relationships between street-based sex workers and police had improved. Decriminalisation supported the safety strategies of these sex workers better.

There have also been several high-profile cases where sex workers have exercised their legal rights. Brothel-based sex workers won sexual harassment cases against business owners, and convictions of rape against two clients who covertly removed condoms during their bookings.

Among the 26 sex workers we interviewed in New Zealand, participants described feeling fortunate to work in the decriminalised context. They also felt working conditions for sex workers were better than in other countries.

One participant said: "I also feel that we shouldn't have to say "oh we're so lucky" but we are compared to other people in other countries".

Another felt decriminalisation gave sex workers a "protective layer".

This meant, as one participant put it, "we have rights, full stop".

Participants appreciated sex work being defined as work and the rights that accompany this. Decriminalisation was considered both ideal and normalised. As another explained: "it's been decriminalised for a long time now, like it's part of our reality".

Room for improvement?

While participants felt grateful to work in the decriminalised context, this does not mean there were not issues.

Decriminalisation in New Zealand does not include legal protection from discrimination. Sex workers have little recourse if they are treated unfairly because of their job.

The sex workers we spoke with believed the social stigma of sex work was gradually fading, and instances of discrimination described by participants were rare. But they still feared the consequences of discrimination (such as being denied accommodation or premises to work from if their work became known to a landlord).

They supported further legal protection from discrimination.

For one participant this meant: "I could tell people my job without ... any fear of backlash, and that would be fantastic."

Participants also wanted the protections of decriminalisation extended to temporary migrants. People who hold temporary visas face deportation if they are found to be working in the sex industry, making them vulnerable to exploitation.

Falling behind

After two decades of decriminalisation, New Zealand risks falling behind as more jurisdictions (such as Victoria and Queensland in Australia) adopt decriminalised frameworks that build in protection from discrimination.

Such protections mean it is no longer legal to deny a person accommodation or a job based on their sex work experience, or deny them a bank loan or mortgage.

To keep up, New Zealand needs to follow suit. The next step is therefore to strengthen and expand the rights sex workers have.

Perhaps then, in another 20 years, the country will still be seen as one that put the human rights of sex workers first and showed the rest of the world what equality really looks like.

* Lynzi Armstrong is a Senior Lecturer in Criminology, Te Herenga Waka - Victoria University of Wellington

- This story was originally published by The Conversation.