The PRA and Human Rights

Human rights are central to the purpose of the PRA. Section 3(a) of the PRA provides that one of its purposes is to create a framework that ‘safeguards the human rights of sex workers and protects them from exploitation’. It is important to determine the exact nature of the human rights that must be upheld when considering this aspect of the purpose of the PRA. There is no fundamental human right not to be discriminated against on grounds of occupation. The relevant international human rights instruments to which New Zealand is a signatory are useful when considering this issue.

3.1 International Conventions

The Human Rights Commission (the HRC) provided the Committee with information on relevant conventions. The first United Nations treaty against trafficking is the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others 1949. It criminalises those who exploit prostitution, while treating sex workers as victims, without criminal or other liability.

Article 6 of the Convention for the Elimination of All Forms of Discrimination Against Women 1978 requires States Parties to suppress ‘exploitation of prostitution of women’. It does not prohibit prostitution or stipulate how it should be regulated, with States Parties themselves left to assess the ‘appropriate measures’ necessary.

In 2001, the United Nations Convention Against Transnational Organised Crime was supplemented with a protocol to address the increased trafficking of women and children both across and within national borders. Article 3 of this Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children 2001 also focuses on ‘the exploitation of the prostitution of others’. The definition of trafficking in the Protocol marks a significant development in trafficking law. It implies that transporting or transferring adult sex workers who have given full and free consent is not trafficking (unless force, coercion, abduction, fraud or deception have been used to achieve that consent).

Articles 34 and 35 of the Convention on the Rights of the Child require States Parties to take steps to address the sexual exploitation of children. Strong protections for children and young people are required, particularly in light of the State’s role as both guardian and protector.

In addition, Article 1 of the International Labour Organisation Convention 182 on the Worst Forms of Child Labour defines prostitution as a worst form of child labour and requires immediate and effective action to eliminate it.

In summary, the focus of human rights instruments is two-fold. First they condemn any form of child prostitution. Second, with regard to prostitution by adults, international human rights standards target ‘forced prostitution’ or ‘exploitation of women in prostitution’, rather than the abolition of prostitution itself. This has led to the emergence of a range of approaches to the regulation of prostitution internationally.

3.1.1 Case Law

In addition to the international conventions, there is abundant New Zealand case law on human rights, but only one case on the meaning of the term when considering the PRA. Section 3(a) of the PRA was considered by Heath J in J B International v Auckland City Council[7], as he sought to determine whether a bylaw was counter to the purpose of the PRA:

[89] Section s3(a) refers specifically to safeguarding “the human rights of sex workers”. In my view that safeguard cannot be read in isolation. It must be read together with the balance of s3(a) which refers to protection of sex workers from exploitation. In my view, the “human rights” in issue are the rights not to be subjected to degrading or disproportionately severe treatment: s9 of the Bill of Rights. The reference to exploitation in s3(a) seems to support that interpretation. The “human rights” and “exploitation” concepts are stated conjunctively in s3(a). That necessitates an approach to interpretation which reflects the two underlying ideas.

3.1.2 Sex Workers’ Perceptions

Sex workers themselves, as surveyed by CSOM, seem to see their rights in terms of health and safety and employment rights, which fit more neatly in the ‘safeguard against exploitation’ aspect of section 3(a). But they are very aware that they have ‘legal rights’.

Table 9 Sex Workers’ Perceptions of Rights Under the Act by Sector

**Total
****%**

**Street Workers
****%**

Managed Indoor
%

Private Indoor
%

We have no rights (N=739)

8.4

18.8

6.4

7.0

We have employment rights (N=681)

92.0

89.9

91.9

93.4

We have OSH health and safety rights (N=645)

93.8

90.9

95.0

92.9

We have legal rights (N=729)

95.9

96.3

96.1

95.5

In the qualitative interviews conducted by CSOM, most participants described having rights under the PRA, particularly in terms of safer sex and occupational health and safety and making them feel more ‘legitimate’.

Um well it definitely makes me feel like, if anything were to go wrong, then I’m, then it’s much more easier for me to get my voice heard. And um (.) I also, I also feel like it’s um some kind of hope that um there’s slowly going to be more tolerance perhaps of um (.) you know, what it is to be a sex worker. And it affects my work, I think, because when I’m in a room with a client, I feel like um (.) like I’m, like I feel like I am deserving of more respect because I’m not doing something that’s illegal. So um I guess it gives me a lot more confidence with a client because, you know, I’m doing something that’s legal, and there’s no way that they can, you know, dispute that. And um you know, I feel like if I’m in a room with a client, then it’s safer, because, you know, maybe if it wasn’t legal, then, you know, he could use that against me or threaten me with something, or you know. But now that it’s legal, they can’t do that.

(Jenny, Managed and Private, Female, Wellington, CSOM, 2007)

Comment

The Committee concludes that section 3(a) safeguards the following rights: the right for those under 18 not to be used in sex work; the right for adults not to be forced to engage in sex work, including the right to refuse a particular client or sexual practice; and the right not to be subject to exploitative, degrading employment practices.

Chapter seven deals with the effect of the PRA in prohibiting the use of people under 18 in prostitution, and chapter ten deals with the right not to be subject to exploitative, degrading employment practices. This chapter discusses the third human right protected by the PRA, the right for adults not to be forced to engage in sex work.

3.2 Right for Adults Not to be Forced to Engage in Sex Work

Chapter five indicates that, contrary to some public perception, coercion into the sex industry is extremely rare in New Zealand. The more difficult issue is to what extent the PRA has impacted on sex workers’ right to refuse to undertake sex work with particular clients or of a particular type. Most of those interviewed for the CJRC report accepted that a worker could refuse to take a client, but others prefaced this with ‘but they have to have a good reason’.

If they do refuse we need an explanation. We won’t allow nationality to be the reason – they don’t have a right to discriminate. If the client is intoxicated or abusive, they don’t have to if they don’t want.

(Brothel Operator, CJRC, 2007)

In some cases, it appears it is difficult to refuse even with good reason.

One 18 year old worker had just finished a job. A big Samoan guy was waiting who she had not even had a chance to check out. He was really rough with her, held her down by her throat. She went out to complain to the manager who told her to ‘go back in’.

(Brothel Operator, CJRC, 2007)

The overall impression gained by the CJRC in their interviews was that there were ‘good’ and ‘bad’ operators as regards allowing sex workers to refuse to provide commercial sexual services. The good ones tended to accept a worker’s judgement, but even so insisted on their having a ‘good’ reason to refuse.

The CSOM survey asked whether workers felt more able to refuse a client since the enactment of the PRA. Around two-thirds responded that they did. However, there was still a substantial number who reported feeling that they had to accept a client when they did not want to in the last 12 months, as indicated below.

Table 10 Ability to Refuse Clients in Last 12 Months by Sector

Total
%

Street
Workers
%

Managed Indoor
%

Private Indoor
%

Felt they had to accept a client when they didn’t want to in last 12 months (N=768)

35.3

41.7

37.5

29.1

Refused to do a client within the last 12 months (N=768)

69.8

85.5

61.3

77.1

Participants who had refused to do a client in last 12 months and who were penalised (N=540)

10.5

9.5

12.4

8.3

More able to refuse to do a client since law change (N=493)*

64.8

61.9

67.3

62.7

* only participants who had been working prior to the enactment of the PRA

In the qualitative interviews conducted by CSOM, sex workers spoke of their right to say no, and how it had been enhanced by the decriminalisation of the sex industry.

As in beforehand a client um (.) you know, because of them having to make the offer to you, um the sort of the negotiation power, I think, was a little bit more with them… Um whereas now you can sort of say ‘no.’

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

Some sex workers reported that they had increased support from management when they refused a client, or to undertake a particular practice.

I had one instance when we went into the room and I said, “Look, I’m sorry but you can’t go down on me.” And he said, “Okay, I want to cancel the booking.” So I said, “Okay, that’s fine.” Took him out; that was not an issue at the desk. You know, if I didn’t want to do something, I didn’t have to do it, because what I’m expected to give is a hand-job, a blow-job with a condom, and sex with a condom, vaginal sex. If I don’t want to do anything else, that’s fine, you know, and I’m not at all expected in any shape or form whatsoever to put myself and my health at risk. And it’s just made it a lot easier,

(Sheila, Managed, Female, Auckland, CSOM, 2007)

From what I hear from women who have worked, that I work with, who worked before the law changed, it’s a lot better for us and it’s a lot more open and girls aren’t having to fight, you know, their own battles every night between clients and between employers.

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

Comment

The Committee concludes that the PRA has had a marked effect in safeguarding the right of sex workers to refuse particular clients and practices, chiefly by empowering sex workers through removing the illegality of their work.

Notwithstanding that, it appears that there are still some sex workers who are being required to provide commercial sexual services against their will on occasion. This is clearly in breach of the PRA and of their human rights. Sex workers should be aware that, in this situation, they are fully entitled to refuse to perform the requested service, and if necessary leave the premises and/or complain to the Police. It may be that there is some uncertainty in the minds of brothel operators over this matter.

Recommendation

The Committee recommends that information on the requirements of the PRA regarding the right to refuse a client be made clear in the educative material that it is recommended be provided to brothel operators in chapter six of this report.