Academic journal article Women's Studies Journal

COMMENTARY: Decriminalisation and the Rights of Migrant Sex Workers in Aotearoa/New Zealand: Making a Case for Change

Academic journal article Women's Studies Journal

COMMENTARY: Decriminalisation and the Rights of Migrant Sex Workers in Aotearoa/New Zealand: Making a Case for Change

Article excerpt


Prostitution law reform remains an intensely debated issue internationally, with experts and organisations in many countries considering Aotearoa/New Zealand to showcase a progressive and promising legislative model (Amnesty International, 2016; Hubbard, Sanders and Scoular, 2016; Radačić, 2017; WHO, 2012). Aotearoa/New Zealand decriminalised sex work in 2003, becoming the first country in the world to adopt a policy of full decriminalisation. Many countries have adopted various versions of either partial or full criminalisation (such as the UK, the USA, and several European countries such as Sweden and Norway), or have heavily regulated sex work through legalisation (such as Germany and the Netherlands) (Outshoorn, 2012; Pates, 2012; Vanwesenbeeck, 2017). The Aotearoa/New Zealand model of decriminalisation is unique in decriminalising the sale and purchase of sexual services involving consenting adults over the age of 18. The overall rationale for decriminalising sex work was to improve sex workers' lives by affording them rights to challenge those who seek to exploit them and improving their access to justice (Abel, Fitzgerald and Brunton, 2007). The specific focus on affording rights to sex workers, along with the role played by the country's sex worker-led organisation, the New Zealand Prostitutes Collective (NZPC), makes the rationale and process of law reform particularly distinctive (Benoit, Jansson, Smith, and Flagg, 2017). For example, in Sweden the voices of sex workers were marginalised in the process of law reform, with the rationale for law reform driven by radical feminist discourse defining sex work as a form of violence against women (Armstrong, 2010; Östergren, 2004). In the UK, sex work law reform has in part been driven by a desire to manage public nuisance (Armstrong, 2010; Boynton and Cusik, 2006). In Germany, while the intent for the 2002 reform was to improve sex workers' working conditions, this was pursued not through affording rights to sex workers, but through strict state regulation and control (Pates, 2012). The rationale for law reform in Aotearoa/New Zealand and the process through which this was pursued is, therefore, unique. The numerous benefits of decriminalisation for sex workers' health, wellbeing and rights, are well documented (Abel, Fitzgerald and Brunton, 2007; Abel, 2014; Armstrong, 2014, 2017). However, it is critical to consider the ways in which sex worker safety and rights could be strengthened further in the decriminalised context, and how this may be achieved.

In this paper, I outline the precarious legal status of migrant sex workers in Aotearoa/ New Zealand, discussing the contradictions inherent in the existing legal framework and the implications this has for the vulnerability of migrant workers. I argue that current immigration law relating to migrant sex work is incompatible with the purposes of the PRA, which seeks to safeguard the health, safety and human rights of sex workers. I consider the potential harms of current laws relating to migrant sex work, and make a case for change to enable a context which prioritises the safety and rights of all sex workers.

Sex work policy in Aotearoa/New Zealand

Prior to 2003, Aotearoa/New Zealand was largely insignificant in the context of debates regarding sexual commerce. While prostitution has been documented since the early days of colonisation (Jordan, 2005), up until 2003 the laws surrounding sex work in Aotearoa/New Zealand mirrored those in place in the UK, where selling sex is not technically a crime, but activities associated with it, such as pimping and procuring, are (Armstrong, 2010). With the passing of the PRA in 2003, Aotearoa/New Zealand moved into a prominent position in international debates regarding sex work laws.

The PRA decriminalised sex work by repealing existing laws which criminalised it, as well as providing sex workers with rights to challenge exploitation. Aotearoa/New Zealand and New South Wales in Australia are the only places in which sex work has been decriminalised, although there are still elements of state regulation within these systems. …

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