COVID-19 has dominated the news over the past six months. New Zealand’s response to the pandemic has garnered considerable attention, owing to the decisive leadership of Prime Minister Jacinda Ardern and a collective public health effort, which enabled the elimination of community transmission of the virus. However, what has also been unique about New Zealand during this period is its attitude to sex workers. The role that sex workers have been able to play in the COVID-19 elimination effort well illustrates the significance of New Zealand’s sex work laws, and the rights that sex workers have in this country.
For the most part, activities associated with sex work (such as soliciting, brothel keeping and the purchase of sex) are illegal in most parts of the world, despite decades of advocacy by sex workers campaigning for decriminalisation. While several countries have legalised sex work, New Zealand is the only entire country to decriminalise it, through the passing of the Prostitution Reform Act (PRA) in 2003. The adoption of the PRA meant that previous laws which criminalised the sex industry were repealed, and in their place the new decriminalised framework foregrounded the rights of sex workers.
The impacts of decriminalisation in New Zealand are well documented. Research, which informed the evaluation of the PRA carried out by a review committee five years after it was passed, provided compelling evidence that decriminalisation is a legislative approach that works. In this study, over 90 per cent of participants reported feeling that they had rights after the law change. The power of these rights was demonstrated in 2014 when a sex worker won a sexual harassment case against a brothel operator. Research has also found that decriminalisation results in improved relationships between police and street-based sex workers, since the police are no longer required to enforce soliciting laws, meaning that they can assume a far more supportive role.
It is not only the legal framework in New Zealand that is unique, but also the process that led to its adoption. The decriminalisation of sex work in New Zealand was driven by sex workers – the law was passed following over a decade of work by the New Zealand Prostitutes Collective (NZPC). Sex workers therefore played an integral role in driving this legislative change, and while the final version was not exactly as they wanted, the fact that they were heard as part of the process is unfortunately unique. During the law reform process, sex workers presented submissions on the Prostitution Reform Bill in person to the Select Committee. The most powerful speech was presented in the final parliamentary debate when Georgina Beyer, New Zealand’s first transgender MP and former sex worker, recounted her own personal experience of rape and her reluctance to report it to police. The voices of sex workers were therefore at the forefront of the process.
So, what has the decriminalised framework and the status afforded to sex workers meant during the pandemic? Sex workers around the world have described being excluded from state response packages, because of their marginalisation and often criminalisation. Consequently, many sex workers have had to continue working when there are risks to their health. In New Zealand, because sex work is defined as work, sex workers had access to the same financial safety nets to support them during the lockdown as those working in other occupations. Sex workers in New Zealand were therefore supported to stay safe during the COVID-19 elimination effort and many have embraced their role as public health educators to clients on COVID-19.
However, while the response to COVID-19 has highlighted the protections of decriminalisation, it has also exposed the limitations of the decriminalised framework. Under Section 19 of the PRA, temporary migrants are not permitted to work in the sex industry in New Zealand and can be deported if they are found to be working in this area. They are therefore excluded from the protections of decriminalisation and, because of their illegal status, were not able to access the same government subsidies and support during the lockdown as permanent resident sex workers. Furthermore, the legacy of stigma means that not all sex workers felt able to access government support, believing they would have to disclose their sex work to state agencies.
Thus, while decriminalisation is an essential starting point, is not the end of the story for realising sex workers’ rights. Transformative change for sex workers requires a much larger fundamental shift in society. Deeply ingrained societal stigma means that sex work is still subject to an abundance of myths and stereotypes. Society has a fascination with the sex industry, yet at the same time there is a reluctance to learn about the diverse reality of it. Nevertheless, the legal framework means that New Zealand is well positioned to begin unravelling the legacy of stigma in pursuit of longer-term social change for sex workers. Meanwhile, many countries are still reluctant to consider decriminalisation as a policy option. The case of New Zealand suggests that this reticence is misguided – the evidence clearly indicates that decriminalising sex work is best practice if the priority is to improve the lives of sex workers.
COVID-19 has highlighted how legal rights and respect for sex workers are paramount during times of crisis to ensure they are not left behind. The New Zealand government was put to the test during the COVID-19 crisis and it passed with flying colours. Not only did its leaders take a quick, decisive and courageous stance, by putting people first; they also stood by the principles of the PRA to safeguard the human rights of sex workers. They acknowledged that sex work is work, supported sex workers in minimising their exposure to COVID-19, and in doing so, sent a clear message that they are valued citizens of Aotearoa.
Lynzi Armstrong is Senior Lecturer in Criminology at Victoria University of Wellington. Gillian Abel Is a Professor in Population Health at the University of Otago.
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