Historical approaches to regulation
Historically, although prostitution has been viewed as a threat to the moral order and a danger to public health, the state has tended to legislate for the regulation of prostitution, rather than introducing measures focussed on its elimination. Even early Christian societies did not seek to eliminate prostitution, with the Church fathers justifying this stance by asserting that “Sewers are necessary to guarantee the wholesomeness of palaces.” (quoted by de Beauvoir, 1974, 618). St Augustine was adamant that prostitution should be recognised as a necessary social evil, arguing,
Suppress prostitution and capricious lusts will overthrow society. (cited in Roberts, 1992, 61).
His stance was predicated on a belief in men’s sexual appetites necessitating access to sexual outlets outside of marriage. In order to prevent them committing adultery and threatening their marriages, society should facilitate men’s access to prostitutes. It follows from St Augustine’s argument that two separate classes of women were required – good, virtuous, sexually faithful wives to service men’s procreative needs within marriage, and prostitutes who would cater to their desires and pleasures outside of marriage. Such thinking views prostitution as a necessary social evil, and reinforces the madonna/whore dichotomy.
Given the fact that men’s demand for prostitution services has not abated through the ages, the historic response has been to continue to seek its regulation and control rather than its eradication. For instance, in medieval England and Europe the preferred way of regulating prostitution was to restrict prostitutes to working in certain districts and/or requiring that they dress in particular, identifiable, styles. Thus in Paris, prostitutes were confined to working in brothels in particular areas of the town and were required to wear armbands, dye their hair, “or in other ways distinguish themselves from respectable society matrons” (Bullough and Bullough, 1987, 125). Women who violated such codes of behaviour could find themselves expelled from that district, literally being run out of town. Confining the sex industry to specifically designated areas was also seen as economically advantageous in that it enabled municipal councils to share in the profits (Roberts, 1992, 90). By the 17th century the practice of visiting prostitutes was so widespread that guidebooks to brothels were being produced and men could claim visits to prostitutes on their tax returns (Philip, 1991, 22). Prostitution continued to flourish so that by the 1860s Henry Mayhew estimated there to be over 80,000 women working as prostitutes in London – how many men were their clients we have no idea.
It is clearly evident that the dominant state response to prostitution has been to seek its regulation and control rather than its elimination. A study of the international sex industry today, however, reveals that the ways of achieving such regulation differ markedly, both
between and within nations. Thus in the United States areas of minimal regulation exist alongside states with highly interventionist policies. Significant differences also exist in how European governments have sought to control prostitution. The measures adopted range from the legalised red-light districts of Hamburg to the tolerance of window prostitution in Amsterdam and the arresting of male clients in Sweden. Closer to home, across the Tasman in Australia there are distinct differences in the ways state governments view and attempt to regulate the sex industry. These will be examined later in this section.
Contemporary approaches to regulation
There are four principal approaches that states have adopted internationally with regard to the regulation of prostitution. Each of these is briefly presented below.
This approach makes prostitution an illegal offence for both the client and sex worker, and in so doing seeks to reduce or eliminate the sex industry. This option appeals to many who are opposed to prostitution on moral, religious or feminist political grounds, but has seldom been seriously implemented because such laws tend simply to drive prostitution underground, producing undesirable health and safety consequences.
Criminalisation of the clients
Some countries have sought to remove the double standard by introducing legislation that penalises the clients rather than the sex workers. The proponents of this measure often hope that by targeting the demand side of the sex industry, they may reduce or eliminate it altogether.
A legalised approach to the sex industry makes prostitution legal under certain, state-specified conditions. Typically this would involve establishing a system of licensed workers who could work legally in licensed establishments. From the client’s perspective such an arrangement works to his benefit by ensuring a pool of readily available, state licensed, health-checked women exist on demand. In the process, however, many of the civil rights and liberties of the workers may be violated (Arnot, 2002; Hancock, 1992). The women may be subjected to mandatory health checks; they may have to pay large commissions to their employer; and they may be forced to engage in unwanted practices in order to retain their jobs.
Models based on decriminalisation begin by removing the offences and penalties relating to sex workers, and rely predominantly on the use of existing statutes and regulations to manage the operation of the sex industry. This perspective acknowledges that the costs of keeping prostitution illegal largely outweigh the gains, and sees prostitution as essentially constituting consenting behaviour between adults. A decriminalised sex industry need not, however, be
an unregulated industry, since prostitution becomes subject to the same kinds of controls and regulations which govern the operation of other businesses (Pickles, 1992).
In the debate preceding the passing of the Prostitution Reform Bill in 2003, high levels of anxiety were voiced regarding the anticipated outcomes predicted to follow in the wake of such legislative reform. Amongst the many dire warnings sounded were predictions that significant increases would follow in:
the size of the sex industry;
amount of visible street prostitution;
levels of violence against sex workers;
extent of child prostitution;
involvement of illegal immigrants;
levels of drug use;
rates of sexually transmitted diseases; and
involvement of gangs and organised crime.
Opponents of the bill claimed such outcomes would be a direct result of decriminalising prostitution, despite the difficulties of locating evidence to support such claims. What was often cited were figures suggesting a possible correlation between two factors, mistakenly presenting these as if they possessed causal significance. An example of such reasoning was evident in the pronouncement that the rate of sexually transmitted diseases in New Zealand would increase in the wake of decriminalisation, because the rate of gonorrhoea had soared’ in Australia since brothels were legalised (Maxim Institute, 2002). This could only be asserted in such a direct manner if nothing else had changed during this period other than the legislation on prostitution, or if there was research specifically linking the increased cases of gonorrhoea to the sex industry, as well as the possibilities of a benchmark comparison pre-dating law reform. Thus the two factors cited may or may not be related, and much more complex social research and analysis would be needed before such a claim could be justified. Moreover, extrapolating directly from Australia to New Zealand may not necessarily follow, given the social, political and cultural differences that exist. It appears that the original statement of soaring gonorrhoea is not strongly established anyway, given the multiple studies cited by the New South Wales Parliament’s Brothels Task Force documenting reduced rates of infection, including a 90% decline in gonorrhoea rates among sex workers for the period 1981-1989 (cited in Brothels Task Force, 2001, 23).
During the debate, unsubstantiated statistics were also sometimes produced literally out of thin air, as when an Australian industry spokesperson remarked during an interview that the number of brothels in Sydney had increased by 400% since decriminalisation. When subsequently questioned about the source of this figure, she was unable to provide any means of substantiation – it had simply come into her head when she was asked the question and seemed like a good response (PRB 111B, 2001). Its origins left unexamined, this statistic’ was subsequently used on billboards around New Zealand by those seeking support for their opposition to the bill (Maxim Institute, 2002). This was also despite pronouncements from Professor Basil Donovan of Sydney Sexual Health noting little or no increase in the number of sex workers in New South Wales following the passage of the Disorderly Houses Amendment Act 1995 (Donovan, 2001, cited in PRB 111C, 2002, 7). What he did suggest, however, was some evidence following decriminalisation of a move by sex workers from larger venues to smaller or owner-operated premises, thereby giving the superficial impression of an increase.
In terms of overseas models of prostitution law reform, some of those opposing the move to decriminalisation here expressed clear support for the Swedish model. Sweden introduced legislation criminalising the buying of sexual services that came into force on 1 January 1999. As part of a stated aim of seeking to reduce the numbers of sex workers, it targets clients and imposes penalties on them of a fine or up to six months’ imprisonment if they are convicted in relation to massage parlour, brothel, or street prostitution. To date there is conflicting evidence regarding whether this move has led to a reduction in the numbers of sex workers (PRB/WJP/1, 2001, 15). What some observers are suggesting (for example, Pettersson and Sjogren, 2002, cited in Bennachie, PRB 111C, 2002) is that there has been a reorganisation of the sex industry so that both workers and their clients are choosing less visible ways of making contact. Early assessments of the legislation considered it may be fostering greater communication between police and social service agencies, resulting in more sensitive approaches to sex workers, and that fewer young people were entering the industry (Pettersson and Sjogren, 2002). On the other hand, the police have said prostitution has not decreased since the Act was passed and that they need greater powers to enforce the legislation (Svenska Dagbladet 2001, cited in Gould, 2001). Concerns have also been raised that prostitutes in Sweden are now at greater risk of violence, pressure to engage in unsafe sex, and are under greater financial pressure resulting from reductions in income (Dagens Nyheter 2001, cited in Gould, 2001).
The Swedish approach to law reform has attracted widespread international attention and support yet the overall impact of the recent legislation is unclear, with conflicting reports and comments. In relation to the question of other countries following Sweden’s example, the point has also been made that Sweden may be unusual in at least two major respects. Firstly, it has a relatively small sex industry – approximately 2,500 prostitutes in a population of 8.5 million (0.3 per 1000), compared to the estimated 25,000 who work in the Netherlands (1.6 per 1000) (Kilvington, Day and Ward, 2000, cited in Bennachie, PRB 111C, 2002). Secondly, there is a long and well-established welfare system within Sweden generally, which also provides extensive social support structures for sex workers wishing to move out of the industry (PRB/WJP/1, 2001, 15).
While it would clearly be salient to consider international evaluations of prostitution law reform, efforts to locate these have been largely unsuccessful. A Canadian criminologist and lifetime researcher of prostitution, John Lowman, responded to my request for information by saying that he was unaware of any such full-scale evaluation having been conducted. Across the Tasman, both academic Barbara Sullivan and parliamentary researchers provided references to the documents they considered were the closest in this regard, and these will be reviewed below to ascertain any utility they might have for New Zealand. Firstly, though, it should be noted that in Australia, each state government has its own prostitution-related legislation and the models used vary widely. Prostitution is illegal in South Australia and Tasmania, while in the Northern Territory brothels are illegal but prostitution itself is not (Smith, 2003). Victoria, Queensland and Western Australia have each introduced a strict regulatory environment requiring brothels not only to have town planning permission but to also be licensed by a separate licensing authority. In contrast, in New South Wales brothels require only town planning permission. Stewart Smith notes that the irony is that critics of the lax’, decriminalised, model in New South Wales praise the more restrictive regulations introduced elsewhere, whilst those in the latter states point to New South Wales as a model of reform (Smith, 2003).
The next section provides a brief overview of evaluations of legalised and decriminalised models of prostitution law reform in Australia. While other countries have also introduced significant reforms, the majority have been split between essentially legalised or decriminalised approaches, and a focus on Australia is proposed here given its proximity and similarities to New Zealand. For the purposes of allowing comparison with New Zealand, particular emphasis is placed on recent reviews of New South Wales’s essentially decriminalised model of regulation.
Legalisation: Victoria, Queensland and Western Australia
The state of Victoria has long been referred to as a classic example of a legalised model. The Prostitution Regulation Act 1986 introduced the possibility of legal work within the sex industry. Sex workers could work legally from their homes or from parlours and escort agencies as long as the business obtained a planning permit from the local council (Sullivan, 1999). However, since many councils were reluctant to sanction prostitution as a business, such permits were difficult to obtain.
In 1994 new prostitution laws were introduced in Victoria that increased the penalties associated with illegal prostitution, especially street work. The Prostitution Control Act 1994 sought to actively involve the police in the regulation of the brothel industry. A regulatory framework was established requiring all prostitution service providers’ to be licensed, with applicants having to pay high licence fees and undergo rigorous police scrutiny in addition to holding a valid council planning permit for their establishment (Arnot, 2002; Sullivan, 1999).
The planning controls determined under the Planning and Environment Act 1997 include requirements that sex establishments must not be located near schools, churches or other areas where children congregate, ensure their exclusion from residential areas, and limit the size of brothels to a maximum of six rooms (Sullivan, 1999). In an attempt to prevent organised crime, as well as having to be licensed, brothel owners in Victoria are each restricted to the operation of one brothel venue. The licensing system comprises a range of permits and licences for brothels, operators, and workers, with Section 15 of the Act stating that simply being in, entering or leaving an unlicensed brothel without a lawful excuse is an offence (Smith, 1999).
Concern has been expressed that Victoria’s system of legalised prostitution has resulted in a split, two-tiered sex industry evolving, with a tightly controlled legal sector operating alongside a large and often vulnerable illegal sector (Dobinson, 1992, cited in Sullivan, 1999). Thus one group of workers hold positions in the state-approved brothels, often claiming that they work in virtual slave-like conditions for the privilege of being state approved’. Those who cannot obtain employment in the licensed brothels work instead in the illicit underground sex industry where their insecure legal status renders them vulnerable to exploitation, harassment and organised crime (Arnot, 2002).
Both the legal and illegal sectors are said to have expanded since the legislation’s introduction, with the real growth occurring in the illegal sector, which now outnumbers legitimate sex businesses (Arnot, 2002; Sullivan, 1999). In December 1998 there were 82 licensed brothels in Victoria (79 of which were in Melbourne), as well as five exempt’ brothels (solo or two-person establishments that were exempt from the licensing requirements but still needed town planning permits (Sullivan, 1999)). The number of unlicensed premises was unknown but believed to be considerable. Hence Sullivan argues that:
The cost and legal scrutiny involved in the licensing process means that many (perhaps a majority) of prostitution businesses in Victoria remain illegal. (Sullivan, 1999, 10).
Concern has been expressed that the legalisation process has been accompanied by a proliferation of different forms of sex businesses all seeking to meet clients’ demands for more explicit and alternative commercial sexual services (Sullivan, 1999). Rather than resulting in sex workers in Victoria being empowered by law reform initiatives, it is argued that, despite the legislation seeking to limit this, large-scale sex industrialists now control the legal industry (ibid.). Women working in legal brothels may be forced to hand over 50-60% of their takings to managers and operators, while women who want to work from home or smaller cottage-type settings are forced into industrial or docklands areas if they want to work legally. Such environments bring increased risks of violence and isolation and work against health and safety concerns.
The Queensland Prostitution Act 1999 seeks to regulate prostitution by a brothel licensing system and town planning controls. Recent criticisms have been made suggesting that the tight regulatory framework has left most brothels operating illegally and put the lives of street workers at risk. One of the only 12 licensed brothel owners commented:
We’ve been pushed into industrial areas and hidden, we’re paying $20,000 a year for our licence before we can even open the doors, we’re fingerprinted and interrogated, we have trouble getting workers because we can’t advertise and they’re (the Government) in our faces all the time. (The Courier-Mail, 2003, quoted in Smith, 2003, 21).
There has been no review of the legal situation since 1999 (when the laws changed to allow for licensed brothels) although the Crime and Misconduct Commission (CMC) is presently undertaking one. The Prostitution Act 1999 tasks the CMC with evaluating the Act within three years of implementation. The Act will be evaluated according to the extent to which it has achieved its objectives within the evaluation period. Those objectives are to:
regulate and control prostitution and related activities in Queensland;
maintain quality of life for local communities;
safeguard against corruption and organised crime;
address social factors that contribute to involvement in the sex industry;
ensure a healthy society; and
The evaluation involves interviews with key stakeholders, surveys of sex workers and community members, and a review of the relevant literature and legislation in other jurisdictions. Evidence of physical or sexual abuse of sex workers will be an important measure.
The Prostitution Licensing Authority has also recently funded research which they say is in the process of completion.’ The project consisted of four components:
1. A survey of sex workers;
2. A survey of clients of sex workers;
3. A community attitude survey; and
4. Collection of data on sexually transmissible infections in Queensland.
The reports that hopefully will emanate from these research endeavours may be of use when considering evaluation of the New Zealand situation.
In Western Australia, the Prostitution Control Bill 2003 proposes that brothels be licensed by a dedicated licensing authority as well as requiring local government planning approval in certain circumstances. The legislation bans brothels in residential areas and permits them in industrial areas only if they are not within 300 metres of a school, church, child-care premises, or residential land. At the time of writing, this bill has not yet passed into law.
Decriminalisation: New South Wales
New South Wales has essentially decriminalised prostitution through changing the laws regarding both street prostitution and brothel-keeping. Various prostitution offences are still contained within the Summary Offences Act 1988, however. These include inducing another to commit an act of prostitution, advertising prostitution services, and restrictions on soliciting in public places. The latter seeks to exclude street prostitution from areas “near, or within view from, a dwelling, school, church, hospital or public place” (Smith, 2003, 4). An amendment introduced in 1999 (Section 19A) sought to extend these restrictions to clients soliciting prostitutes, in an effort to reduce kerb crawling (seeking prostitution services by driving very slowly along the street).
The Disorderly Houses Amendment Act 1995 abolished the offence of brothel-keeping, making brothels a legitimate commercial land use regulated through environmental planning mechanisms. Under this Act, premises would constitute a brothel even if used by only one prostitute for the purposes of prostitution (Smith, 1999). All brothels were now required to obtain local government planning permission, although no licensing or registration of brothels was stipulated. In situations where nearby residents registered complaints concerning a brothel being disorderly, and it could be demonstrated that the brothel was having a detrimental effect on the local community, the councils were given the power to take action to close the premises through the Land and Environment Court. This legislation reduced police responsibilities for the regulation of brothels, a measure deemed salient in the wake of the Wood Royal Commission’s finding evidence “showing a clear nexus between police corruption and the operation of brothels” (Wood Royal Commission Final Report quoted in Brothels Task Force, 2001, 5). The legislative reforms that were introduced, however, did not prevent police from pursuing legitimate enquiries in relation to drug possession or supply, child prostitution, immigration issues, or any other serious criminal offences reasonably suspected of being committed on brothel premises.
In commenting on the changes, Sullivan has noted the advantages decriminalisation has brought sex workers in terms of creating spaces for legal sex work, as well as expanding the scope for those in the indoor sector to be employees and have their work places regulated by occupational health and safety standards (Sullivan, 1999). New South Wales Health is responsible for addressing public health issues in brothels, providing sexual health services, and promoting AIDS awareness through its funding of SWOP (Sex Workers’ Outreach Project). WorkCover is responsible for promoting workers’ health and safety, and preventing workplace injury and illness. However, she also notes that employers in the New South Wales sex industry have been able to resist many of their obligations because the bulk of their employees are “very young, female, casually employed and thoroughly stigmatised by their work” (ibid., 12).
Five years after the Act was introduced, the New South Wales Attorney General and the Minister for Urban Affairs and Planning established the Brothels Task Force. Its brief was to monitor the regulation of brothels by local councils and to assess the success of occupational health and safety programmes for sex workers, their clients and the public (Brothels Task Force, 2001). The Task Force was asked to review the success of the legislative changes made five years previously and assess the need for additional reforms. Membership of the Task Force appears to have been restricted to representatives from predominantly police, health and government agencies.
The Brothels Task Force Report does not detail the methodology used in undertaking their evaluation. What it presents in its report is an introductory overview of the changes introduced, followed by three major sections addressing planning issues regarding the regulation of brothels, issues arising in enforcing the regulation of brothels, and occupational health and safety issues. In relation to the latter, it noted that the 1995 reforms had been positive in their impact on sex workers’ access to health services, again without detailing the basis for this assertion.
The Report indicates areas regarded as problematic by local councils in New South Wales, which reflect initial concerns raised here in the wake of decriminalisation. For instance, the Report notes that if councils try to enforce planning restrictions that are too restrictive, they will render it difficult for brothel operators to operate legally and run counter to the objectives of the reforms introduced. Restricting the operation of brothels to industrial areas may pose safety threats, while the Task Force also found that prohibiting home-based brothels in residential areas tended not to see the operator move but instead operate illegally, thereby reducing the likelihood of their accessing occupational health and safety programmes and rendering them more vulnerable to abuse and violence.
A major recommendation of the Task Force was the establishment of a Brothels Planning Advisory Panel to assist local councils with the task of enforcing planning regulations for brothels. Comprising primarily government, council, business, sex worker and health representatives, the Advisory Panel would prepare and promote guiding principles and model codes, policies and conditions.
A recent New South Wales Parliamentary Briefing Paper, however, began by stating:
The commercial sex industry in NSW continues to attract media attention as communities throughout the State grapple with the vexed issue of where to locate legal brothels. (Smith, 2003, 1).
A major issue of concern still facing councils appears to be how to close down illegal brothels, i.e. brothels operating in a zone where they are prohibited, or in a zone where they are permitted but where consent has not been obtained. In order to have such illegal premises closed, councils have to seek restraining orders from the Land and Environment Court. In order to prove that premises were being used as an illegal brothel, some councils had hired private investigators to have sex with a prostitute, but legislative amendments have now been introduced to enable circumstantial evidence to be sufficient (Smith, 2003).
The 2003 update also noted that street prostitution continued to be a problem in some areas of Sydney. In one suburb the local Council had closed streets near a school in an attempt to stop kerb-crawling. The police themselves said law enforcement was not an effective way of controlling street prostitution. Although signs were installed warning citizens that undercover police were targeting kerb-crawlers, ten offenders were caught in the first week following their installation. As one officer noted,
we have signs telling them police are in the area and they still come here and get a criminal record. It’s the only undercover operation I know of that is literally signposted. (The Sunday Telegraph, 16 March 2003, quoted in Smith, 2003, 13).
Retaining restrictions on areas where sex workers could solicit was also identified as problematic, given that those convicted are typically given a fine and go back to street work to earn the money to pay for it (ibid.).
Overall the 2003 report concurred with the Brothels Task Force that the planning system introduced was an effective regulatory mechanism but councils needed advice regarding how to do this effectively. The areas of street prostitution and sex slavery involving illegal immigrants warranted further attention and a range of co-operative measures was considered necessary given the limitations, and sometimes compounding nature, of law enforcement procedures.
Implications for New Zealand
Measures to assess and evaluate prostitution law reform appear to be in their infancy and there is little currently available to provide specific direction in this area. However, in three to five years time there may be examples that can be drawn upon from the Australian context. In particular it may be useful to appraise developments regarding ways of resolving the tensions between state legislative aims and local council initiatives, given early indications of similar tensions emerging within the New Zealand context.
Evaluating prostitution law reform is likely always to be a difficult venture, given the complexities of the social and legal realities surrounding the industry. Evaluation of New Zealand’s legislation will necessarily involve careful examination of the aims of the Prostitution Reform Act 2003 and the formulation of a range of intersecting strategies to assess the extent to which these may or may not have been achieved. Given the overlapping nature of many of the factors involved, however, it will be virtually impossible to isolate any one factor for analysis. Instead, it is likely that a range of methods will be proposed to gather a variety of data sets which will need to be considered collectively. These may include a combination of surveys, interviews, statistical analysis, government reports, and media analysis. (See note in Appendix I). It will be the task of the Prostitution Review Committee to establish the measures to be used, and to prepare a report on its findings for Government.
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