Health, Safety and Well-being

4.1 General Health of Sex Workers

The vast majority of CSOM survey participants reported having their own doctor. However, only half of the participants who reported having a doctor indicated that they had told him/her they were sex workers. Street-based workers were the most likely sector to report their occupation to their doctors, with managed workers the least likely. Most participants indicated that they accessed their general practitioner for their general health needs as well as their sexual health needs. There were few participants who reported that they did not go for sexual health check-ups, with managed workers the least likely of all participants to report this. There were no significant differences in access to services between the Christchurch females in the sample in 2006 and the Christchurch female sex workers in the 1999 study.

NZPC was seen as the main provider of health services and information in the CJRC Key Informant interviews. Offices in Christchurch, Wellington, and Auckland provided weekly sexual health clinics. Those in the industry valued greatly NZPC services in particular, which they felt had always been good. Most felt there had been no great change in access for sex workers, although some felt there had been improvements since the PRA.

No change – there have always been opportunities through NZPC.

(Brothel operator, CJRC, 2007)

NZPC is more organised and able to provide good information. People can be more open now. Workers acknowledge NZPC more. They say it’s their right to get information, people are more confident.

(Brothel operator , CJRC, 2007)

NZPC itself felt the PRA had made their work easier, as it was possible to speak openly about sex work and safer sex practices.

CJRC asked about other impacts the PRA may have had on the health and well-being of sex workers. The main impact mentioned was an improved sense of well-being due to sex work no longer being ‘criminal’. Sex workers could go about their business without fear of being arrested by an ‘undercover cop’. The relief this created was frequently mentioned. Both NGOs and those in the industry that were interviewed felt that decriminalising prostitution made sex workers feel better about themselves and what they did.

There’s just an increase in confidence now it is legal – been validated. It’s hard to explain, but it’s something I’ve seen. When the Act was passed, the girls knew about it. They didn’t know the technicalities, but they knew it was legal and the work could be less demeaning.

(Brothel operator, CJRC, 2007)

Personally, I feel more confident now I’ve got rights. I still work secretly, but I can say ‘the law says this’…There is now no fear of being caught by Police. It was difficult when I was younger. I felt like a criminal and was less assertive.

(SOOB, CJRC, 2007)

4.1.1 Safer Sex

Both the CSOM and CJRC reported high use of condoms throughout the industry. Over three-quarters of all CSOM survey participants reported that they always used a condom for any form of penetrative sex. 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.

In 2007, the AIDS Epidemiology Group reported to the Ministry of Health on HIV prevalence amongst 9,439 people who attended sexual health clinics in 2005 and 2006 (AIDS Epidemiology group, 2007). The report notes that none of the 343 self-identified sex workers were found to be infected with HIV. This compared to an HIV prevalence of about 4.4% among homosexual and bisexual men, 0.1% of heterosexual women, and 0.1% of heterosexual men. It should be noted that the sample (people attending sexual health clinics) are a higher risk group than the general population. Therefore, these figures probably overstate the HIV prevalence in the community.

The CJRC’s key informants were not aware of any substantial change in the use of safer sex practices by sex workers as a result of the enactment of the PRA. It was generally felt that most sex workers had already adopted such practices – as a result of the effective HIV/AIDS prevention campaign that ran in the late 1980s. Many informants said that it was in sex workers’ own best interests to look after their health. (Contracting a sexually transmitted infection (STI) meant they had to take time off work.) Sex workers in brothels seemed to actively monitor this – admonishing any sex worker who has provided sexual services without using a condom.

Despite no great change in safer sex practices, there were several positive effects reported as a result of the PRA. Both the CJRC and the CSOM reports cite numerous examples of sex workers being able to negotiate safer sex by stating that it is against the law for them not to practice it.

I now say, “I don’t want your germs, do you want mine? I could be fined and go to jail, and if you take it off, then I could send you to jail”.

(SOOB, CJRC, 2007)

Comment

It seems that most sex workers have taken measures to take good care of their physical health and particularly sexual health both before and after the enactment of the PRA. In part this can be attributed to the early response to the HIV/AIDS epidemic, including the establishment of NZPC and the services that it has since provided. NZPC is contracted by the Ministry of Health to promote health services to sex workers with a focus on HIV/AIDS and sexually transmitted infections (STIs), and the Committee strongly recommends that this continue.

The Committee is pleased to see reports of increased confidence, well-being and a sense of validation amongst sex workers, are a direct result of the enactment of the PRA. Such confidence will have a positive spin-off in many areas, such as the improvement of employment conditions, and the ability to ensure that safer sex practices remain standard throughout the industry.

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4.2 Occupational Health and Safety Requirements and Rights

4.2.1 Knowledge of OSH Requirements and Rights

The PRA brought the sex industry under the Health and Safety in Employment Act 1992 (the HSE Act). In June 2004, the Occupational Safety and Health Service of the Department of Labour issued A Guide to Occupational Health and Safety in the New Zealand Sex Industry[8] (the OSH Guide). The OSH Guide is available at www.osh.dol.govt.nz.

The OSH Guide sets out the health and safety duties, rights and responsibilities that are relevant for those involved in the sex industry. It covers sex worker health, workplace amenities, and psychosocial factors common in the sex industry. It covers a wide range of topics in considerable detail, aiming to assist owners and workers to implement best practice by providing practical means of doing so. The OSH Guide is supplemented by fact sheets giving specific advice on topics of importance to the document’s users.[9]

The OSH Guide explains that the HSE Act allocates different rights and responsibilities depending on whether one is an ‘employer’, ‘employee’, ‘principal’, ‘contractor’, ‘self-employed person’ or ‘person who controls a place of work’, as these terms are defined in the HSE Act. It notes that ‘It may be difficult to determine whether sex workers are employees or “self-employed” sub-contractors to the operators of businesses.’[10] This is discussed further later in this chapter.

Of those who replied to the CJRC survey, two-thirds of brothel operators (18 out of 27) said they were familiar with the OSH Guide. The rest – mainly SOOBs – were either not familiar with the OSH Guide or had not seen it at all.

The OSH Guide was generally thought to be useful by brothel operators, though some were of the opinion that the OSH Guide needed to be more ‘user friendly’.

Forty-one percent of sex workers surveyed by the CSOM reported that they had seen the OSH Guide. Three-quarters of the participants who reported having seen it had read it. Most (66.2%) of the participants who had read the OSH Guide reported that they found it very useful and informative and a quarter reported that the guidelines had made them more aware of their rights.

Some sex workers find the OSH Guide too bulky. One Department of Labour staff member interviewed by CSOM reported as follows:

there was a comment made that it was rather big. It was like a telephone book. Some of the people felt it was like a telephone book and that it just needed to be a small brochure, pamphlet um for people. But I mean this is really there to be able to answer any, pretty much any enquiry an employer might have or somebody who’s dealing in an industry. It’s not the sort of book that you’d give um one of the girls on Manchester Street.

(Occupational health nurse, CSOM, 2007)

Shortly after the PRA was enacted, the Ministry of Health, with the assistance of NZPC, also produced posters, stickers and pamphlets for sex workers, clients and brothel operators. The Ministry of Health material outlines the responsibilities that owners, workers and clients have with regards to the HSE and the PRA, and the maximum penalties that may be imposed if those responsibilities are not met. They also list where further information can be found. The pamphlet for owners is printed in Chinese as well as English.

The Ministry of Health material was distributed widely at the time of production. All pamphlets, stickers and posters remain available from www.healthed.govt.nz.

Two-thirds of participants in the CSOM study had seen the Ministry of Health pamphlets and posters about clients and sex workers being required to use condoms. Most participants (67.0%) thought that these pamphlets and posters were useful and informative and 21.2%) said they made them more aware of their rights.

Participants in the qualitative interviews conducted by the CSOM were asked to discuss occupational health and safety. Some discussed the relevance of OSH to people working in the sex industry and were unsure whether they would seek information and help for an OSH issue. Others described how they actively sourced information about OSH issues. Participants described the Ministry of Health pamphlets and posters favourably, especially in terms of their aiding safe sex negotiations, although participants had divergent experiences of having them on show in their workplaces.

Um we’ve got them placed on the, and I think they should be displayed on the wall, but they’re actually placed on the bedside cabinets… Like I mean they’re quite easy to read and have, they’ve got good information in them… So I think, you know, yeah, you know, it’s better than that whole OSH thing.

(Pat, Managed, Female, Christchurch, CSOM, 2007)

But um I have seen them. Yeah, I’m pretty sure they were in the laundry and in the office, but those are the only places. Like they’re not in any of the rooms or anything. Even though they should be, but yeah.

(Vicky, Managed, Female, Wellington, CSOM, 2007)

Some participants had actively sought information on OSH issues. One participant described how in one workplace, management had adapted the OSH Guide and Ministry of Health information to design their own information for workers and clients.

It was about two months later that we actually got the new booklets, and read all about it. Mind you, it wasn’t hard to find in the fact that – like there was a bit in the paper. Um I remember ringing the Labour Department. I remember ringing um – who was the other one? – Health and Safety, and that was easy enough to get information. I was in the parlour one day and I thought, “Wonder, wonder, wonder,” ‘cause I remember hearing saying about that, so I decided to ring them. And they said well the booklet had, they hadn’t got a pile just yet, but they were going to hand them out to all parlours and that every worker should actually have a copy of this, and every worker should have a copy of the new rules and everything, and all about the law and everything. And then next thing a pile come in, so we all had them. Not that many of them cared two hoots, but I said there is things in there. I said, “You know, there’s like taxes and that. It’s up to you whether you pay them or not. It’s your choice.” Um the thing is, I said I can understand why the girls don’t want to go into the tax department, because let’s face it, you’re branded then, and that to me is that stigma. Let’s face it, to me there’s that stigma attached to it.

(Josie, Private, Female, Napier CSOM, 2007)

Many brothel operators mentioned the service provided by NZPC and appeared to rely heavily on them for providing health information and safer sex materials. However, other operators try to keep their workers away from NZPC, with some NGO informants suspicious that this is done in an attempt to keep workers ill informed as to their rights. Some operators had their own in-house training, but many preferred to send their workers (particularly new ones) to NZPC.

Poor managers are careful to try and isolate a sex worker – keep them away from places like NZPC where they might find out what is acceptable and what is not. The poor brothel operators suggest that conditions are worse elsewhere. The girls don’t want to leave in case it is so and they can’t get back to working where they were.

(NGO – health, CJRC, 2007)

The CSOM study found that over 90% of survey participants were aware that they had increased OSH and legal rights under the PRA.

The majority of participants in the CSOM qualitative interviews reported having knowledge of their employment rights under the PRA, particularly ‘in terms of safer sex and occupational health and safety’, which makes them feel ‘legitimate’.

Comment

The Committee commends the comprehensive nature of the OSH Guide, and would not like to see it reduced in any way. However, it could usefully be supplemented by more easily digested information in smaller handbooks or pamphlets.

The Committee notes that there is a reliance upon, and appreciation of, the role NZPC has played in providing information on OSH matters. However, government agencies and brothel operators have a shared responsibility to ensure that workers in the sex industry know who to contact for occupational health and safety concerns.

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4.2.2 Adherence to OSH Requirements

The PRA provides that Medical Officers of Health are ‘inspectors’, with the power to enter and inspect brothels to check that safer sex practices have been adopted. The PRA also provides that a person is at work for the purposes of the HSE Act while providing commercial sexual services. This means that Occupational Safety and Health Inspectors can enter and inspect any place where commercial sex services are being offered, to check that the HSE Act is being complied with.

Once the PRA was in force, Ministry of Health provided training and guidance to Medical Officers of Health, who in turn offered training on the Act to brothel operators, the Police and other relevant parties. After this initial push, some public health service managers and Medical Officers of Health sought clarification from the Ministry of Health about whether there would be additional Ministry of Health funding to assist them to carry out their new functions under the PRA. The response was that the new requirements were a statutory function and that they would need to be carried out within existing resources.

We were told by the Ministry not to be proactive…We did actually discuss this issue of um doing something more active. But in the end um with the um HPOs [Health Protection Officers] involved we decided that none of it was feasible really. We did not have the resources.

(Medical Officer of Health, CSOM, 2007)

Um sort of a couple of managers have said “there’s no resources. Will you tell me what people are going to stop doing to enable you to do this?”…what we were proposing was quite a small time investment, which I think could have helped establish relationships and rapport so that if, you know, if there are big issues we would have been in a better position to do something about it.

(Medical Officer of Health, CSOM, 2007)

The Department of Labour’s Health inspectors (formally known as OSH Inspectors) ran a short-term project in the period immediately following the enactment of the PRA. This involved inspecting 12 brothels under the HSE Act. In addition to inspection, these visits involved the provision of information, education, and advice. However, this impetus was not maintained. A Department of Labour staff member interviewed by CSOM commented on a suggestion that had been made to him by a local NZPC representative that OSH do an assessment of all the brothels.

Um [X] had actually wanted that. We go and do an assessment of all of them and give them all, you know, make sure that they’ve got information and have an assessment of all of them. But um which is probably a good idea, but it’s not one of the priorities for us for this year. We sort of are involved in a range of other health priorities at the moment.

(Occupational Health Nurse, Department of Labour, Christchurch, CSOM, 2007)

As a result, the Department of Labour and Medical Officers of Health have taken a largely reactive approach to implementation of the health and safety role under the PRA, responding to complaints rather than initiating regular inspections. One notable exception was where the Medical Officer of Health and a Health Protection Officer visited all the brothels in the district. This happened after they responded to a complaint from an NGO about one local premises.

And um so um with tremendous trepidation – I mean I don’t think I’ve ever been so nervous – but I mean I visited, armed with large male Health Protection Officer, who’s even slightly more mature years than me. And um, the pair of us tip-toed into this place, which we’d been told was one of the less satisfactory premises around. And um, I meant it was all very well for me to go into this place, but how could I judge it if I’d never been into a parlour before? So that was what led to me into the process of visiting all our other parlours. So I realised there was just no way I could make any ability to um use the legislation constructively; a) if I wasn’t known and our role wasn’t known; and um b) if I had no idea of how the sex industry worked and um and of what, where it was and who was in it and what a brothel, actually what you could expect to find in a brothel.

(Medical Officer of Health, CSOM, 2007)

A further obstacle to taking a proactive approach to brothel inspection is the fact that there is no official list of the location of brothels, as there is, for example, with liquor licensed premises. Section 41(1) of the PRA restricts access to information held by the Registrar of the Auckland District Court regarding successful applications for brothel certification.[11] Inspectors wishing to go beyond a complaints-based regime must find brothels themselves (usually with the help of NZPC).

Complaints are relatively infrequent. No Medical Officer of Health had dealt with more than 10 distinct complaints. Most are about unsafe sex practices or unhygienic premises.

But it was around an unsafe work environment. The um, and the unsafeness related to both kind of, you know, hygiene things. They weren’t clean sheets, there wasn’t a process of, you know, laundering sheets and towels and things like that. Um and also the physical location of the work area was down a long dark corridor across the road from the main area, very poor lighting, no kind of alarm bells, no one else working over there. So there was a real risk of violence towards sex workers. So we referred that onto um the Department of Labour for OSH to follow-up.

(Medical Officer of Health, CSOM, 2007)

Almost all complainants are anonymous. Medical Officers of Health told CSOM that this made it very difficult to take action unless adequate detail was supplied to them. None of the complaints that had been investigated by Medical Officers of Health resulted in a prosecution.

One was from a member of, a member of the public, who had visited a brothel and was um (.) didn’t, wasn’t able to see the posters. He’d obviously read things, and um he told us he’d been offered sex without a condom. Now, we were obviously very concerned about that and wanted from him some details of um both the location of the venue, the times, the date, the name of the sex worker, the description, any details about him. And he wasn’t prepared to provide any details um and the conversation, he very rapidly hung up.

(Medical Officer of Health, CSOM, 2007)

One prosecution for failing to adopt safe sex practices in breach of section 9 has been successfully taken. This was as a result of a confession made to Police. The offence carries a maximum penalty of a $2000 fine. The offender, a client, was fined $400.

Comment

The low number of complaints received by Medical Officers of Health may indicate that there is a high level of compliance with the law regarding safer sex and OSH requirements in general, particularly given that the research indicates there is increased awareness of such issues in the sex industry since decriminalisation. However, a more complete picture of compliance with the safer sex and occupational health and safety provisions of the PRA can only be established through the development of a good relationship with the sex industry to ensure cooperation around inspections and follow-up of occupational health and safety complaints.

The Committee recommends that Medical Officers of Health be resourced to conduct inspections of brothels, and that OSH place sufficient priority on the matter to enable them to accompany Medical Officers of Health when such inspections are made.

4.3 General Safety of Sex Workers

The CSOM survey participants were asked if they had experienced any adverse incidents in the last 12 months, including: refusal of a client to pay; having money stolen by a client; been physically assaulted by a client; threatened by someone with physical violence; held against their will; been raped by a client; or received abusive text messages. Street-based workers were significantly more likely than managed and private participants to report all of these experiences in the last 12 months, with the exception of abusive text messages (see Table 11). Few participants indicated that they reported adverse incidents to the Police, but most reported that they did tell some other person instead of the Police. There was little difference between sectors in reporting of adverse incidents.

Table 11 Adverse Experiences while Working in the Last 12 Months by Sector

Total
%

Street Workers
%

Managed Indoor
%

Private Indoor
%

Experienced refusal by client to pay (N=769)
Reported to police
Reported to another person besides police

12.6
9.1
53.8

31.5
11.7
46.6

7.5
4.9
63.9

12.6
10.0
53.3

Had money stolen by a client (N=768)
Reported to police
Reported to another person besides police

8.3
15.5
63.1

24.4
10.6
64.3

4.2
19.3
71.7

7.9****
18.3
53.3****

Been physically assaulted by client (N=770)
Reported to police
Reported to another person besides police

9.8
19.2
75.9

13.4
19.2
64.5

**10.4
**13.5
86.4

7.3
32.0
53.9

**Threatened by someone with physical violence (N=768)
**Reported to police
Reported to another person besides police

15.9
20.0
70.0

39.5
17.8
72.2

9.3
14.8
77.3

16.3
27.0
60.1

**Held somewhere against their will (N=766)
**Reported to police
Reported to another person besides police

4.7
21.1
59.8

10.2
19.3
40.5

4.2
30.1
63.4

3.2
3.5
79.2

Been raped by a client (N=769)
Reported to police
Reported to another person besides police

3.0
32.1
65.0

5.3
6.0
53.8

3.3
35.4
71.0

1.5
62.3
62.3

Received abusive text messages from clients (N=771)
Reported to police
Reported to another person besides police

17.3
6.1
44.2

11.0
11.2
42.3

7.4
14.2
46.4

36.4
2.6
43.7

The Committee sought information from the Human Rights Commission (HRC) regarding the number of complaints of breaches of the human rights of sex workers both before and after the PRA was passed. Unfortunately, for a number of reasons, prostitution or sex work is not captured in the HRC’s database.[12]

Opinion among CJRC informants differed on the impact of the PRA on adverse incidents, including violence, being experienced in the sex industry. The majority felt that the PRA could do little about the violence that occurred.

Clients getting stroppy will always happen. This was the case before the Act and after it.

(Brothel operator, CJRC, 2007)

There has been no impact. There will always be ugly mugs.

(NGO – health, CJRC, 2007)

Others – but less than a quarter – felt there had been an improvement.

It’s better now… I’ve heard workers say “don’t have to take that crap anymore”. They know they have a right to report stuff.

(NGO, CJRC, 2007)

The CJRC informants indicated that the PRA had encouraged the reporting of violence to Police, with some indication that the Police response may assist in resolving a situation. There was a sense that the PRA meant incidents of violence against sex workers would now be taken seriously. Of those feeling in a position to comment, the majority (70%) felt sex workers were now more likely to report incidents of violence to the Police. It appeared that this was particularly true for the street workers.

Since the Act … I’d say the incidence of violence has been lessened a little, because the girls can stop a Police car now and make a legitimate claim. One night I was in a Police car with a Senior Sergeant and this girl had just phoned 111 and waved us down. She was traumatised – but perhaps because I was in the car and she knew me we were able to encourage her to report the assault.

(NGO, CJRC, 2007)

If it is serious I’d make a complaint now – over violence against me or someone I know.

(SOOB, CJRC, 2007)

While sex workers are more likely to report adverse incidents to Police, including violence, willingness to carry the process through to court was less common.

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Street workers come in here and tell us, and we talk on their behalf if they want us to; others are happy for Police to know but won’t report if it has to go through.

(NZPC, CJRC, 2007)

The CSOM report notes that, in general, women in the 1999 study by Plumridge and Abel in Christchurch were more likely to report using informal friendship and work relationships to deal with the aftermath of adverse work experiences than report these to the police or other ‘helping’ professionals . This appears to have changed little post-decriminalisation. Stigmatisation plays a key role in the non-reporting of incidents. For the participants in the 1999 study, important confidants for sharing bad experiences were fellow workers, friends and NZPC.

In Christchurch, NGOs had put in place a Phone Text system. Sex workers could voluntarily supply a cell-phone number to NZPC, and if NZPC received information of a potentially violent client (and the information was verified from the Police) they sent out alerts to those registered on the Phone Text system.

Comment

The decriminalisation of the sex industry was intended to make it more likely that sex workers would report violent behaviour by clients to the Police, increasing their safety as clients realised that they could no longer ‘get away with it’. It appears that adverse incidents, including violence, continue to be experienced by those in the sex industry. There is conflicting evidence on whether violence is reported more often since decriminalisation, but clearly there is still a marked reluctance amongst sex workers to follow through on complaints. The CSOM report concludes that stigmatisation plays a key role in the non-reporting of incidents. The Committee has commented elsewhere that stigmatisation is still attached to the sex industry, and it will take time before it dissipates.

There has been a change of attitude to each other by some members of the Police and some sex workers. Some individual officers, and some Police districts, have gone out of their way to work with the sex industry, with Christchurch being the obvious example. However, there remains a level of suspicion and unease within the sex industry about the role of the Police, and the value or otherwise of reporting complaints to them. This is the inevitable result of years of the sex industry operating illegally, with the Police seen as posing a threat rather than offering protection. The Committee recognises that simply decriminalising an industry will not produce overnight changes in entrenched attitudes.

The Committee urges sex workers to report offences committed against them. It is in their interests, and in those of the industry. Equally, the Committee urges senior police officers to take the lead in maintaining a culture where sex workers’ complaints are treated in the same manner as any other complaint. While progress towards mutual respect may be slow, it has mutual benefits, as the relationship between the Police and Christchurch sex workers has shown.

Recommendations

The Committee recommends that:

the Occupational Safety and Health service of the Department of Labour consider supplementing the OSH guidelines for the sex industry with smaller, user friendly pamphlets;
Government provides additional funding to the Ministry of Health to enable Medical Officers of Health to carry out regular inspections of brothels; and
Police and the sex industry look to the approach taken in Christchurch as a mutually beneficial way of managing their relationship.

Footnotes

8 Production of the OSH Guide answered a recommendation of the Justice and Electoral Committee made when it considered the Prostitution Reform Bill.

9 The information in this paragraph is sourced from the Guide’s website.

10 The Guide, p 19.

11 Even if this were not the case, there is no requirement for an applicant for a brothel certificate to provide the address from which the brothel will operate. A postal address is all that is required.

12 ‘Firstly it does not correspond directly to any of the areas or grounds of discrimination in the Act and nor is it mentioned specifically elsewhere in the legislation. Secondly, the Commission’s frontline staff are mindful of the need to respect the privacy of people who approach us with complaints. Thirdly, as many people are vulnerable at the time they contact us, it is often inappropriate to ask for further personal information, particularly around sensitive issues such as sex work.’ Extract from a letter to the Committee from HRC, 23 November 2007.

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