The Use of Under Age People in Prostitution

7.12.1 Amending the PRA
7.12.2 Amending the Children, Young Persons and Their Families Act 1989
7.12.3 Changes to the Independent Youth Benefit
7.12.4 Social Support and a Multi-Agency Approach

7.1 Introduction

One of the purposes of the PRA is to prohibit the use of people under 18 years of age in prostitution. The Committee believes it is important to separately consider the operation of the PRA in terms of its impact on under age prostitution due to the potential harm to young people used in prostitution.

The PRA does not set out measures to prevent or address the causes of under age prostitution. However, the Committee supports the positive step made by the PRA in shifting criminal liability from under age people who provide commercial sexual services to those who arrange, profit from, or receive those services.[30]

Sections 20 – 22 make it an offence to facilitate or receive payment for the commercial sexual services of a person under 18 years of age. It is also an offence to arrange for or to receive commercial sexual services from a person under 18. Under section 23, every person who commits an offence under sections 20 – 22 is liable to a maximum penalty of seven years’ imprisonment.

It is not an offence for a person under the age of 18 to provide commercial sexual services. Rather, they are considered to be a victim of the offences described above. Section 23(3) of the PRA reinforces this position, stating that no person under 18 years of age may be charged as a party to an offence committed under sections 20 – 22.

For the purposes of this chapter, the Committee has used the terms ‘commercial sexual services’ and ‘prostitution’. A person under the age of 18 years who provides commercial sexual services is not termed ‘a sex worker’. This is because the PRA refers to a person under 18 as being ‘used’ in prostitution, recognising the exploitative nature and illegality of the use of under age people in prostitution.

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7.2 The Threshold for Providing Commercial Sexual Services

In its report on the Prostitution Reform Bill, the Select Committee noted that the nature of prostitution ‘was such that there should be a prohibition beyond the age of consent’ (Justice and Electoral Committee, 2002). The legal age of consent for sexual activity is 16 years (Crimes Act 1961).[31]

The age of 18 was chosen because it was consistent with the then legislation regarding the commercial sexual exploitation of under age people (section 149A of the Crimes Act, which was replaced by the PRA). In addition, the age of 18 is consistent with the definition of children in both the United Nations Convention on the Rights of the Child and the ILO Convention 182 Concerning the Worst Forms of Child Labour (Justice and Electoral Committee, 2002).

The CJRC (2007) found a consensus amongst participants in the Key Informant Interviews that young people under the age of 18 should not be providing commercial sexual services. Several of those interviewed who worked in the industry also felt that 18 was too young; 20 was suggested as an alternative age.

Police does not have a formal policy position regarding the appropriate age threshold for commercial sexual activity, but does not support a lowering of the current age threshold.

There are age restrictions on other types of work in New Zealand. For example, an employer cannot employ anyone under 18 to work in any restricted area of licensed premises.[32] There are also restrictions for younger employees, such as a person under 16 not being able to work after 10.00pm or before 6.00am, or during school hours.[33] The reason for restrictions of this nature is to prohibit work that will harm the safety, health or development of young people.

Comment

The Committee acknowledges that there are a variety of opinions on the age at which the threshold for the prohibition on use of persons in prostitution should be set. However, the Committee believes that the threshold of 18 years should remain. The existing threshold acknowledges the vulnerability of people used in under age prostitution and recognises that there is a difference between commercial sexual activity and other sexual activity. The Committee also believes that the PRA should remain consistent with the United Nations Convention on the Rights of the Child and the ILO Convention 182.

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7.3 International Legislation

New Zealand is not alone in prohibiting the use of people under the age of 18 in the provision of commercial sexual services. Various approaches have been taken in the states of Australia, in Canada and in the United Kingdom, including prohibition and management of commercial sexual services. Legislation in all of these countries contains provisions prohibiting the involvement of people aged under 18 years in the sex industry.

In the states of Australia, maximum penalties for offences relating to under age prostitution range from 2 to15 years imprisonment, depending on the relevant legislation of each state or territory.[34] In the United Kingdom, the Sexual Offences Act 2003 imposes different maximum penalties for ‘paying for the sexual services of children’, depending on the age of the young person involved (under 13, 16, or 18 years of age). The maximum penalties range from a fine to life imprisonment (relating to a young person aged under 13 years).[35] The Canadian Criminal Code also creates offences relating to the involvement of persons aged under 18 years in the sex industry, but specifies a minimum, as well as a maximum, term of imprisonment. Penalties range from 6 months to 14 years’ imprisonment.

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7.4 The Nature of Under Age Prostitution

7.4.1 The Number of Under Age People Used in Prostitution in New Zealand

There are considerable difficulties in determining the number of under age people used in prostitution in New Zealand. Under age people, like sex workers aged over 18 years, transit in and out of the sex industry. Some under age people are only used in prostitution for a short time and others enter and exit the industry repeatedly. In addition, the report Protecting Our Innocence: National Plan of Action Against the Commercial Sexual Exploitation of Children (Ministry of Justice, 2002) notes that the involvement of some young people in the sex industry in New Zealand can be described as ‘opportunistic prostitution’ or ‘sex for favours’. These terms acknowledge that a young person may exchange sex for basic needs such as accommodation, safety, food, clothing or drugs, rather than for money. Consequently, these young people may be unlikely to perceive or define themselves as ‘sex workers’ or believe that they are being ‘used in prostitution’.

The Committee’s first report provided an estimate of the number of under age people used in prostitution in New Zealand, based on the best information available at that time. The report used information gathered from a telephone survey of Police Districts and Areas over the period of November 2003 to April 2004. It was estimated that there were 210 under age people involved in the sex industry at that time, with a majority located in the street-based sector. A quarter of all under age people were identified as working in escort agencies and 10% were working privately. A cautious approach should be taken to these findings, however, as the level and quality of police information on the sex industry varied greatly around the country.

Police notes that, ‘as a result of the legislative changes, Police…has less contact with the sex industry, and there is no systematic intelligence gathering and collation’ (NZ Police, 2007). The reports by CJRC and the study by CSOM provide some information regarding under age prostitution in New Zealand. However, given the different data collection methods, and the changed nature of the industry, comparisons would be meaningless.

The Key Informant Interviews undertaken by the CJRC (2007) included discussions about the number of people used in under age prostitution. The majority of informants reported that the PRA had not affected the number of under age people used in prostitution in Christchurch or Wellington.

I don’t think there has been any significant change. From what we see, there has been no change – just seasonal ups and downs. In school holidays there are more. The papers get it wrong. Over a 12 month period, [NGO] reported 40 to 50 contacts with those under 18 years, but probably 50 contacts are with just five girls.

(NGO, Christchurch, CJRC, 2007)

In Auckland, informants were divided as to whether there had been any change. One NGO reported an increase of young people working on the streets, whereas another reported no change. In Nelson and Hawke’s Bay, informants either felt unable to comment or were not aware of any under age people being used in prostitution.

The CSOM (2007) study provided data on the personal characteristics of survey participants, including age. Of the 772 participants, 1.3% were aged under 18 at the time of the study. Broken down by geographic location, 5.0% of participants in Christchurch were aged under 18 at the time of the study, compared to 0.4% in Auckland, 1.7% in Wellington and none in Napier or Nelson.

The CSOM report also notes that 41 out of 772 survey participants reported entering the sex industry when they were aged under 18 after the enactment of the PRA. Of these 41 participants, 25 were working in Christchurch, 8 in Auckland, 7 in Wellington and 1 in Nelson. The report also notes that of these 41 participants, 31 started work in the street-based sector, 8 in the managed sector and 2 in the private sector.

Comment

Based on the research and the information provided to the Committee, the Committee does not consider the PRA has increased under age involvement in prostitution. The Committee believes the media coverage of under age involvement in prostitution has often created an exaggerated impression of the numbers involved. The Committee believes the passage of the PRA has raised awareness of the problem of under age prostitution, and that this is a positive consequence. A very small percentage of young people who are sexually active are active in the context of prostitution. Further, few young people, who can generally be termed ‘at risk’, are involved in prostitution.

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7.5 Street-Based Under Age Prostitution

As discussed in chapter eight, street-based sex workers are significantly more likely than other sex workers to have experienced violence, threats of violence, to have been raped, had money stolen from them or been held somewhere against their will. Under age people are generally more vulnerable because of their age and are more likely to be used in prostitution on the streets, which increases their vulnerability.

The CSOM report provided data on the age of survey participants, broken down by sector. The report also provided data on age at entry into sex work, broken down by sector.[36] Of the sex workers surveyed, 56% of street-based workers were aged under 18 at entry into sex work. This is compared to 9.6% of managed indoor workers and 15.9% of private indoor workers aged under 18 at entry into sex work (CSOM, 2007).

The Christchurch branch of NZPC reported that, based on figures from outreach workers and YCD, there are no more people used in under age prostitution now than there were before the PRA came into force (NZPC, 2007). In addition, NZPC outreach workers have observed that young people often hang around in groups, only some of whom are involved in prostitution. Simply counting the number of young people seen on the streets may lead to an overestimation of the number of people used in under age prostitution.

Comment

The Committee notes that subjective estimates of the number of people used in street-based under age prostitution may be influenced by the visibility of young people on the streets. In reality many of the young people seen on the streets are not involved in under age prostitution, but are minders, friends or hangers-on of people who are providing commercial sexual services (under age or otherwise), or just ‘hanging around’.

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7.6 Reasons for Under Age Involvement in Prostitution

There are multiple reasons why people become involved in the sex industry. While some young people will enter the sex industry for reasons similar to those of sex workers aged over 18, some reasons may be specifically related to the age and vulnerability of a young person. Not all under age people enter the industry for the reasons outlined below. Likewise, not all young people faced with similar challenges will become involved in under age prostitution.

The Protecting our Innocence report (Ministry of Justice, 2002) notes that some children or young people who are used in prostitution may still be living with parents or caregivers, others may be in residential care and others may be homeless. Their entry into the sex industry may be caused by homelessness, family breakdown, the influence of others, abuse (sexual, physical and psychological), poverty, drug and/or alcohol abuse, educational underachievement, or unemployment.

Participants in the CSOM survey who started working in the sex industry prior to the age of 18 years were significantly more likely than sex workers who started aged over 18 to report that they could not get an unemployment benefit or parental financial support (35% as opposed to 9.5%) (CSOM, 2007).

I found out I could survive that way, ‘cause I was so young when I started. I was too young for the dole, I had no experience for a job…Um 14. It just happened by itself. It just, you know, it just all unfolded by itself.

(Paul, Private, Male, Auckland, CSOM, 2007)

Without money or adequate accommodation and support, some young people may become involved in prostitution to support themselves. A lack of support may also mean that young people may exchange sex for safety, accommodation, food, clothing or drugs, rather than money. The authors of the CSOM study highlighted homelessness and the lack of emergency accommodation, particularly for young women, as contributing factors to under age involvement in prostitution.[37]

The CSOM study authors also noted the young people in their study spoke of the need to survive and make money, and their inability to gain financial support through either their parents or the government. The Independent Youth Benefit (IYB) was criticised as being insufficient to meet their needs, and the requirement that young people attend training courses to be eligible for the benefit was considered a deterrent to accessing the IYB. It was also noted many of the young people came onto the streets when they were too young to receive the IYB.

When I was 14 I started living on the streets, and then I thought, oh, you know, I can’t support myself any other way apart from, you know, giving out my body.

(Sally, Street, Female, Christchurch, CSOM, 2007)

The Protecting our Innocence (Ministry of Justice, 2002) report noted that transgender youth may be especially vulnerable to entering the sex industry. Reactions to their gender and sexuality from family or peers may leave young transgender people alone and unsupported. The levels of discrimination experienced by young transgender people while in education, when trying to find accommodation, get a job and access health services generally results in them being among the most vulnerable and marginalised young people in society.

The study The Involvement of Children in Commercial Sexual Activity study showed that many under age people became involved in prostitution because they knew someone who was already involved in the sex industry. Almost half of the study’s respondents stated that a female friend or older female suggested sex work (Saphira and Herbert, 2004). The CSOM study also found many young people were introduced to sex work by friends.

Well um at the time I wasn’t receiving any income, so um one of my friends offered to take me, you know, offered me, there was a way for me to make some money. So um yeah, she took me to the street and that’s how I found out how to make money so I could survive.

(Toni, Street, Female, Wellington, CSOM, 2007)

Participants in the CJRC Key Informant Interviews were divided on what message young people took from the passage of the PRA. Some participants reported that young people thought the decriminalisation of prostitution meant those involved were no longer doing anything wrong. Agencies who provided support services for youth noted that if young people felt they were ‘not doing anything wrong’, it made it easier to assist them. The fact that young people did not feel themselves to be criminals was also viewed positively. The CSOM study (2007) found that few survey participants reported entering sex work because it was not against the law; the financial benefits and flexible hours were the reasons most often cited.

Comment

The Committee does not consider the PRA has made prostitution an attractive occupation for young people. The number of young people in crisis or lacking other means of support who become involved in prostitution to survive is outweighed by those young people in similar situations who do not. Nevertheless, the involvement of an under age person in prostitution adds to, rather than alleviates, the problems they face. All measures should be taken to divert under age people from entering the sex industry as a means of survival.

Many of the reasons that young people enter the sex industry are also reasons for remaining in the industry and barriers to exiting it. The Committee considers helping vulnerable young people access benefits, accommodation and other support should be predicated on the need of the young person, not whether they are involved in, or at risk of involvement in, prostitution.

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7.7 Harm Done

The Committee recognises that there are many negative consequences for people under the age of 18 who are involved in the sex industry. These consequences include physical, psychological and emotional harm, and negative social consequences such as ostracism and social stigma.

The ECPAT New Zealand report Speaking For Ourselves (2007) provided a forum for under age people used in prostitution to talk about their experiences. The experiences of the 13 young people interviewed for the report included histories of family violence, sexual abuse and neglect, as well as violence, rape and drug or alcohol misuse while working in the sex industry.

ECPAT New Zealand also notes that many under age people used in prostitution attend school sporadically, or not at all. This results in longer-term consequences, including reduced educational and employment opportunities. Truancy also means that young people are even more isolated from mainstream support, and therefore more vulnerable.

7.8 Prosecutions and Convictions

7.8.1 Difference Between the Crimes Act Offence and the PRA Offences

Prior to the PRA, section 149A of the Crimes Act 1961 (which came into force on 4 April 2001) dealt with the use of under age people in prostitution. Under section 149A any client involved in an act of prostitution with a person under the age of 18 was liable to imprisonment for a maximum of 5 years. Section 149A(2) allowed a defence if the person charged believed on reasonable grounds that the under age person was over the age of 18 years.

There were only four convictions under section 149A of Crimes Act – a conviction in Police v McKay in 2002 and three further convictions against a single offender in Police v A in 2004, in conjunction with the first conviction under the PRA (under section 22(2), being a client of a person under 18 years).[38]

The PRA increased the maximum penalty relating to the use of under age people in prostitution from five years to seven years. In addition, the PRA removed the defence of ‘reasonable belief’. Other jurisdictions, such as Victoria, Australia, have retained a defence of reasonable belief for offences relating to under age prostitution.[39]

The removal of the defence of ‘reasonable belief’ left it unclear whether the offences under sections 20 – 22 of the PRA were offences of ‘absolute liability’ or ‘strict liability’. An absolute liability offence means that if the offence is established, there is no defence at all for the defendant. A strict liability offence means that there is a defence for a defendant who took all steps to avoid offending and can establish a total absence of fault.

This uncertainty was addressed by Judge Walker in R v Prendeville and Campbell, who stated that the offences in sections 20 – 22 are strict liability offences. This interpretation means that a defendant who has made all checks reasonably available for a young person who has the appearance of being over 18 years of age may have a defence of total absence of fault. The Committee endorses the interpretation adopted by Judge Walker, and believes the offences in sections 20 – 22 should be strict liability offences.

7.8.2 Charges Under Sections 20 – 22 of the PRA

As at 31 March 2008, a total of 92 charges have been laid under sections 20 – 22 of the PRA. Table 20 provides data on the outcome of disposed charges and the number of active charges.[40]

Table 20 Numbers of Charges Brought Under Sections 20 – 22 of the PRA, by Outcome and Offence, 27 June 2003 – 31 March 2008[41]

Outcome of Disposed Charges

All

All
disposed
charges

Convicted

Dismissed

Discharged

Withdrawn

Acquitted

Other
not
proved

**All
**Active
charges

Offence

Assist <18 to provide sexual services (s20)

Receive earnings from use of <18 (s21)

Contract for sex with <18 (s22)

All

It is possible that where an offence relating to under age prostitution has occurred and the victim is aged under 16 years, the offender may have been charged with an offence under the Crimes Act 1961. For example, in R v Woodhouse the offender was convicted of indecent assault on a 14 year old used in under age prostitution and was sentenced to 5 years imprisonment.[42] The data in Table 20 may therefore not represent the totality of offending relating to under age prostitution.

Table 21 provides a breakdown of the location of the District Courts where charges have been disposed.

Table 21 Number of Disposed Charges Brought Under Sections 20-22 of the PRA by District Court, 27 June 2003 – 31 March 2008

Offence

Assist <18 to
Provide Sexual
Services (s20)

Receive
Earnings From
Use of <18 (s21)

Contract for Sex
with <18 (s22)

All

District Court location

Auckland

Christchurch

Dunedin

Invercargill

Manukau

Palmerston Nth

Wellington

All

Comment

It is interesting to note how few charges have been disposed in Manukau District Court, although there are numerous reports that under age people are being used in prostitution on the streets of Manukau city. Information from the Ministry of Justice indicates the majority of convictions under sections 20 – 22 have not been in relation to the use of under age persons in street-based prostitution. The Committee hopes Police operations, such as that carried out in Manukau in January 2008 (discussed below) will be repeated in Manukau and elsewhere where under age people are used in street-based prostitution.

The discretion or motivation of individual officers may lead to greater number of arrests in one region. As such, the Committee notes that the table above is not necessarily indicative of the true extent of the problem in one region as compared with others (for example, the numbers disposed of in Wellington as compared to Auckland).

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7.9 Sentences Under Sections 20 – 23 of the PRA

To date, the highest sentence imposed under section 23 of the PRA is two years’ imprisonment, which is considerably less than the maximum penalty of seven years imprisonment. Sentences imposed to date include fines, supervision, community work, home detention and imprisonment.

Of the cases where sentencing notes are available, judges have commented on the protective nature of the PRA and the vulnerability of victims of under age prostitution offences. Judges have also commented on the need for deterrent sentences for offending of this nature. However, in respect of the offender, mitigating factors such as personal and medical circumstances, guilty pleas, no previous offending and remorse have been taken into account in sentencing. A convicted charge may result in more than one sentence (e.g. a conviction may result in both community work and supervision being imposed); thus the number of imposed sentences shown in Table 22 may be larger than the number of convictions shown in Table 20.

Table 22 Sentence Types Imposed for Convicted Charges Laid Under Sections 20 – 22 of the PRA, by Offence, 27 June 2003 to 31 March 2008

Sentence Type

Custodial

Community
work

Supervision

Monetary

Conviction
and discharge

New 2007
sentences_*_

All

Offence

Assist <18 to provide sexual services (s20)

Receive earnings from use of <18 (s21)

Contract for sex with <18 (s22)

All

* Home detention as a sentence in its own right, community detention and intensive supervision

Table 23 Custodial Sentences Imposed Under Sections 20-22 of the PRA, by Case, 27 June 2003 to 30 November 2007

Case

Offence(s)

Sentence

Antolick v R, Christchurch HC, (20 May 2004)

Panckhurst J

Section 22

(also 3 charges under s149A of Crimes Act)

2 years

(Reduced on appeal from 3 years, because the majority of the charges were laid under the Crimes Act with a maximum penalty of 5 yrs)

R v Gillanders, Christchurch DC, (3 march 2005)

Judge Erber

Section 20

Section 21

21 months

R v Barnett, Christchurch DC, (19 July 2006)

Judge Abbot

Section 22

Section 22 (attempted)

3 months

(A further 1 year was imposed for offences relating to child pornography)

Comment

The Committee recognises the complexity of sentencing offenders. Because judges are required to take into account specific features of individual cases, as well as reflect the gravity and totality of the offending, sentences imposed to date under the PRA have not approached the maximum available. Sentences closer to the maximum penalty may be appropriate in future cases. The Committee believes that the penalty of seven years’ imprisonment adequately reflects the seriousness of the use of under age persons in prostitution.

7.10 Role of Police

Police officers may request, but have no powers to require, age identification documentation from a person they suspect to be an under age person providing commercial sexual services. Police reported that this makes it difficult to proactively protect young people who are involved, or at risk of being involved, in under age prostitution (NZ Police, 2007).

Police also reported that investigation into suspected employment of under age workers in brothels or small owner-operated brothels has been more limited since the enactment of the PRA. This is because:

Police now have no right of entry into brothels or other premises,[43]
Brothel owners are not required to maintain a record of the age identification of sex workers or provide it to Police.

Police officers are therefore reliant on information from informants or complaints being laid, and assign priority to their response according to the nature of the information received and other demands facing frontline staff at the time.

Police reported difficulties in bringing prosecutions relating to the use of under age people in prostitution. Police officers have difficulty determining when they should intervene if a potentially under age person is seen to meet up with a potential client. Both parties may deny intent, and Police reject waiting until an offence has occurred in order to be able to charge the client.

In addition, the prosecution is reliant on under age people giving evidence in Court as witnesses. Under age people may not wish to co-operate with a prosecution as they wish to continue providing commercial sexual services. It is also important to note that under age people may not often see themselves as victims and will therefore not make a complaint.

Police reported that if officers believe that an under age person is being used in prostitution, they can use section 48 of the Children, Young Persons and Their Families (CYPF) Act 1989 to remove the young person from the situation.[44] However, under the CYPF Act, a young person is defined as being aged between 14 and 16 years. This means that Police cannot remove 17 year olds, as they fall outside the scope of the CYPF Act.

Police raised the possibility of making it an offence to be an under age prostitute would be a possible solution to the difficulties outlined above. This would enable Police to obtain age identification of suspected workers and remove those under the age of 18. However, Police recognised the risks associated with the criminalisation of young people, and that such a move would be counter to the intent of the PRA to decriminalise prostitution and its recognition of under age people used in prostitution as the victims of an offence.

In January 2008, Police carried out an operation in Manukau which resulted in the arrest of 25 people. Two people were charged with being a client of a person under 18 years, and one for sexual connection with a person under 16 years. Several other people were detected in relation to the use of under age people in prostitution, but there was insufficient evidence to prosecute.

Approximately 16 young people were removed from the streets and either returned to their parents or placed in the care of Child Youth and Family Services (CYFS). However, Police reported being unable to remove some young people because they were aged 17.

Police reported difficulty in obtaining sufficient evidence against clients, particularly in the absence of an admission, or a complaint on behalf of the victim. The Police Association (2008) recommend amending the PRA to include a ‘low level’ offence provision for under age people involved in prostitution. Such a provision, the Association argues, would assist Police to remove vulnerable young people (particularly 17 year olds) from the streets.

In relation to street-based under age prostitution, the NZPC does not believe that increased arrests of clients by Police are an appropriate solution. The NZPC argue that increased arrests will merely drive young people somewhere less visible (and consequently less safe) and will not significantly decrease demand (CJRC, 2007). Young people removed from the streets by Police may return as soon as they are able. Many of the reasons young people are on the streets in the first place relate to dysfunctional or unsafe family environments.

Comment

The Committee acknowledges concerns regarding the enforcement of provisions to prohibit the use of under age people. This concern extends beyond the proof of age and includes difficulty in proving that a commercial sexual transaction has occurred, or may be about to occur. The Committee recognises the difficulties faced by Police in bringing prosecutions under the PRA and is encouraged by the increase in prosecutions and convictions since the implementation of the Act. However, the Committee believes that Police must maintain a proactive role in preventing under age people being used in prostitution. The Committee considers that apprehension of clients attempting to procure under age people must be given greater priority. Police action should be directed at offending actions, and not at the victim.

The Committee is encouraged by operations such as that carried out by Police in Manukau in January 2008. Despite Police concerns regarding the enforceability of sections 20 – 23 it is clear that action can and is being taken by Police. However, the Committee believes a consistent approach is required, rather than one-off operations.

The Committee believes powers available to Police under the CYPF Act are sufficient to safeguard young people under the age of consent (under 16 years). The proposed amendments to raise the upper age of the Act to include 17 year olds will further enable Police to protect young people defined as under age under the PRA (under 18 years).[45] The Committee does not support recriminalising under age people involved in prostitution, or extending Police powers to demand age identification of young people suspected of being involved in prostitution.

The Committee also recognises that simply removing young people from the streets and delivering them to their parents will not prevent their continued involvement in prostitution, or other harmful behaviours. Once identified, at risk young people require ongoing support provided by social service agencies.

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7.11 Social Support for Young People Involved in Under Age Prostitution

7.11.1 Non-Governmental Social Support

There are a small number of community-based organisations that provide support and advice to under age people being used in, or at risk of being used in, prostitution. These organisations offer services such as:

residential care;
a non-threatening point of contact for at-risk young people;
health and safety information and facilitating health services for people used in under age prostitution;
assisting young people find employment opportunities away from the sex industry; and
providing courses (including life skills courses).

There is a paucity of specialist youth services in this area, which is partly due to the difficulty of sustaining these services in the long term without adequate or continuing funding. A particular gap in services is a lack of residential care and emergency housing. As noted above, homelessness and poverty are key factors for many young people who become involved in prostitution in order to survive.

7.11.2 Government Programmes

The Ministry of Youth Development contracts with 47 providers who provide around 128 programmes mainly for vulnerable young people, many of whom are considered at risk of negative outcomes (including under age prostitution). These providers are required to report to the Ministry about the outcomes of each programme.[46]

The Ministry of Social Development has initiated a pilot programme in Auckland for people aged 15 – 17 who are in State care. The programme provides a suite of services designed to support young people to independence. The programme does not have a specific aim of preventing the use of under age people in prostitution. However, components of the programme address some of the factors that may lead to vulnerable young people providing commercial sexual services. Specifically, support is provided to get young people into safe and affordable accommodation, and to access benefits such as the Special Needs Grant to set up a flat. Young people are also assigned a personal adviser who provides a continuity of support throughout the transition period and beyond.

The Under age Prostitution Governance Group was established by the Counties-Manukau branch of Child, Youth and Family Services (CYFS), Ministry of Social Development, in April 2006. The Governance group grew out of the Under Age Prostitution Forum that was established by Auckland CYFS in 1999. The members of the Governance Group and Forum are interested stakeholders, including representatives from CYFS, Police and the Human Rights Commission and the NGO sector. In 2006, the Governance Group planned to develop an issues paper which, once agreed on by the organisations and individuals involved, would be presented to central government. This paper is still in draft form.

Comment

The Committee is disappointed by the lack of action from the Under Age Prostitution Governance Group and the wider Forum. The Governance Group needs to develop practical plans to address under age involvement in prostitution. Effective and ongoing collaboration between the relevant organisations, individuals and agencies is vital.

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7.12 Options

7.12.1 Amending the PRA

As stated earlier, one of the aims of the PRA is to prohibit the use of people under 18 years of age in commercial sexual services. However, in its current form, the PRA cannot in itself prevent or address the causes of under age prostitution. The Committee has therefore considered whether sections 20 – 23 are adequate and whether legislative amendment is required.

Police has requested the Committee consider an amendment to the PRA that would require brothel operators to obtain and retain age identification documentation. This would place the onus on brothel operators to check and confirm the age of sex workers they employ. Operators would be required to produce evidence of sex workers’ age-identification documentation if requested by Police. Participants in the CJRC Key Informant Interviews (2007) considered the PRA has made brothel operators more aware of the penalties for employing under age people. Consequently, most operators are now very cautious and ask for age identification.

The Committee notes the concerns of NZPC that sex workers may fear information retained by brothel operators could be used against them or resurface at a later time in their lives. The Committee believes legal safeguards around employee privacy can be applied in the sex industry. However, the Committee is also cognisant that a stigma remains attached to involvement in the sex industry. Threats of ‘outing’ sex workers to their friends and families have been used by unscrupulous brothel operators as a means to control and exploit sex workers. Therefore, the privacy and anonymity of sex workers must be considered in any approaches to confirm a sex worker’s age. The stigma of involvement in the sex industry can have lasting effects and is one of the harms associated with under age involvement.

Police has also requested the Committee consider an amendment that gives Police the power to require age identification documentation from a person they suspect to be under 18 years of age and is providing commercial sexual services. The Committee has considered this issue carefully and on balance has come to the view that Police should not have this power. To give Police this power would contradict the premise that under age people providing commercial sexual services are not committing an offence, but rather are victims.

Police is of the view that it would be advantageous to include a new clause in s23 of the Prostitution Reform Act to exempt police officers from the offences when they are acting in the course of their duties. Examples of this have been implemented in the liquor context with controlled purchase operations involving minors.[47] The Committee considers such an exemption may be best achieved via amendment to the care and protection provisions of the CYPF Act 1989. Police could therefore be exempt from prosecution in circumstances not limited to the investigation of the use of under age people in prostitution.

The Committee concludes that sections 20 – 23 of the PRA are adequate. The Committee believes amendment of the PRA is therefore unnecessary and in any case would not prevent under age people being used in street-based prostitution.

7.12.2 Amending the Children, Young Persons and Their Families Act 1989

Section 14 of the CYPF Act defines a child or young person in need of care or protection. Included in that definition are children or young people who are behaving in a manner that is, or is likely to be, harmful to their physical, mental, or emotional well-being and that the child’s or young person’s parents or guardians are unable or unwilling to control (section 14(2)). This definition is relevant to young people used in under age prostitution, given their vulnerability and the negative consequences attached to their involvement in the sex industry.

Police may use section 48 of the CYPF Act to remove young people from harmful situations. However, the definition of young person under the CYPF Act does not include 17 year olds. There is also no agency to refer young people to if they are 17 years old. In addition, the Committee believes 17 year olds leaving CYFS care are particularly vulnerable to entering the sex industry because of this lack of support.

Comment

The Ministry of Social Development gave the Committee the opportunity to provide comment on the review of the CYPF Act in May 2007. The Committee recommended amending section 48 to include 17 year olds, as this would increase the level of protection for under age people used in prostitution and bring the CYPF Act into line with the PRA and the United Nations Convention on the Rights of the Child. An amendment Bill was introduced in the House on 3 December 2007. The Bill contains a proposal to raise the upper age of the Act to include 17 year olds. The Bill also contains proposals to support young peoples’ transition from care to independence, and to improve collaboration between agencies. The Committee supports these proposed changes to the CYPF Act.

7.12.3 Changes to the Independent Youth Benefit

The CSOM report shows that sex workers who started working in the sex industry prior to the age of 18 years were significantly more likely to report that they could not get a government benefit or parental financial support. Without money or adequate accommodation and support, some young people become involved in under age prostitution to support themselves.

The main benefit available to 16 and 17 year olds is the Independent Youth Benefit (IYB). The IYB is available to those who are looking for work, training for work, in secondary education, or can not work due to sickness, injury, disability or pregnancy, and are not able to rely on parental support. To be eligible for this benefit there needs to be a breakdown in the relationship between the young person and his or her family.[48]

In the CJRC report Key Informant Interviews (2007), some NGOs also expressed concern that young people are experiencing difficulty in obtaining financial support. Specifically, that the application process for the IYB can be difficult and lengthy and it can be traumatic for some young people to have to provide evidence of a breakdown in family relations in order to be eligible for the IYB. Anecdotal evidence from some NGOs suggests that young people leaving CYFS care have not received help in applying for the IYB.

Changes came into effect in April 2007 to make it easier for young people transitioning from CYFS care to access the IYB.[49] However, no changes are planned to make it easier for young people who have not been in CYFS care to access the IYB. The Ministry of Social Development has stated that it is ‘not aware of any problems accessing the IYB that may have precipitated young people becoming involved in prostitution’.

Comment

The Committee accepts the view that young people are experiencing difficulty with the application process for the IYB. The Committee recommends that the Ministry of Social Development develop strategies to assist at risk young people to more easily complete the application process for financial support that they may be entitled to, such as the IYB.

7.12.4 Social Support and a Multi-Agency Approach

Legislation alone is not sufficient to prevent young people’s involvement in the sex industry. The Committee recognises that intervention is needed both in the early stages of a child or young person’s vulnerability and when a child or young person is actively engaged in under age prostitution.

It is important that the social support provided to under age people is ‘young person centred’. This is particularly important in relation to helping young people to exit the industry. These young people may wish to assert their independence and may reject interventions from parents, carers or practitioners. Therefore the process of engagement with young people needs to be flexible and focused on the needs of the individual.

The Committee believes that NGOs and government-funded community based groups are best placed to engage with at risk young people. There are several NGOs and agencies working with at risk young people. However, these organisations need to identify those young people who are, or are at risk of, being used in prostitution and be more responsive to their needs.

The Committee is aware of the successful multi-agency collaboration between the Christchurch branch of NZPC, the Christchurch Central Police and YCD. These agencies work together to provide support, safety and information to street-based sex workers and vulnerable young people. This commitment to collaboration has improved information sharing between agencies, and between the agencies and street-based workers. This in turn has improved the safety of street-based workers and provided Police with useful information about criminal activity in general.

Police also regards a multi-agency approach to the enforcement of under age prostitution as being the preferred approach in principle. There will be regional differences both in the nature of the issues involved and the resources available. Regions also vary in terms of the support services available. In areas where there are no or few specialised support services, the scope for a multi-agency approach is more limited.

Comment

The Committee recommends that the collaborative multi-agency approach taken by agencies in Christchurch be adopted throughout New Zealand. Police is also encouraged to foster positive contact between officers and at risk young people, street-based sex workers and their advocates. The Committee endorses the work of those organisations working with youth and street-based workers. The Committee also recommends increased funding for community-based groups, to be delivered via the Ministry for Youth Development and the Ministry of Social Development. The Committee acknowledges that regional differences will, to some extent, dictate the scope and nature of the services provided. However, all available services should be utilised where at risk young people are identified, whether or not they are specifically at risk of involvement in prostitution.

Recommendations

A collaborative approach between Police, the Ministry of Social Development, the Ministry for Youth Development and relevant NGOs should be taken to assist at risk young people.

The Ministry for Youth Development and the Ministry of Social Development deliver increased funding to community-based organisations working with at risk youth.

The Committee supports the amendment of section 48 of the Children, Young Persons and Their Families Act 1989, to include young people aged 17 years.

The Ministry of Social Development should ensure when approached by or on behalf of young persons at risk, that they are adequately supported to prevent the young person being used in prostitution in order to survive.

BACK

Footnotes

30 The PRA repealed section 26 of the Summary Offences Act under which any person, regardless of age, could be prosecuted for soliciting.

31 Sexual connection with a person aged under 16 years may constitute an offence under the Crimes Act, regardless of the commercial nature or otherwise of that sexual connection. Under section 134, every person who has, or attempts to have, sexual connection with a person under 16 is liable to imprisonment for up to 10 years. The penalty for having, or attempting to have, sexual connection with a child aged under 12 years is higher still – imprisonment for up to 14 years (section 132). It is not a defence to these charges that the young person consented or that the person charged believed that the young person concerned was of or over the age of 16 or 12 years.

32 Section 161 of the Sale of Liquor Act 1989 makes it an offence to employ a person under the age of 18 years in any capacity in any restricted area of a licensed premises (unless for the purposes specified in section 161(3)). A person convicted of this offence is liable to a fine of up to $2,000.

33 Section 58 of the Health and Safety in Employment Regulations 1995. Section 70 of the Regulations states that anyone who commits an offence under this provision is liable on summary conviction to a fine.

34 There are even higher penalties in some jurisdictions for offences involving children aged under 12 or 14 years. Some jurisdictions allow the imposition of a fine as an alternative or an additional punishment to imprisonment.

35 The maximum penalties set out in section 47 of the Sexual Offences Act (United Kingdom) are dependent on factors such as age, whether the sexual services involved penetration and whether the charge is laid summarily or on indictment.

36 Entry into the sex industry may have been either pre or post law reform.

37 Gillian Abel and Lisa Fitzgerald provided the Committee with information and comment additional to the CSOM study. They highlighted the link between young peoples’ entry into the sex industry, and the lack of support (particularly emergency accommodation) and the unavailability of alternative employment or support services, experienced by some young people.

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