COMMENTS

ON CURRENT MOVES TO LEGALISE THE PROSTITUTION TRADE

being considered by governments in Western Australia, Tasmania and in particular

NEW ZEALAND

by 

Mrs Roslyn Phillips, B Sc, Dip Ed

Research Officer

for

Festival of Light (SA)

Web site www.fol.org.au

 

4th Floor, 68 Grenfell Street, ADELAIDE  SOUTH AUSTRALIA  5000

Phone 61 8  8223 6383   Fax 61 8 8223 5850

Email: rhp@fol.org.au

Revised 4 July 2001

 

Introduction

Festival of Light, founded in South Australia in 1973, has researched the effects of prostitution law reform for many years. 

In 1979, Hon Robin Millhouse introduced the first private member’s bill to legalise brothels in the South Australian Parliament.  This bill failed, but was later followed by the Prostitution Bill (Pickles) 1986, the Prostitution Bill (Gilfillan) 1991, the Prostitution Bill (Brindal) 1995 and the Prostitution Bill (Cameron) 1998.  These private member’s bills also failed.  Each time a majority of MPs decided, on or before a conscience vote, that the removal of criminal sanctions from the prostitution trade would create more problems than it would solve.

However in the late 1990s, SA police warned that some court rulings had made the SA prostitution laws ineffective, forcing police to drop hundreds of prostitution-related prosecutions.  The SA government therefore prepared several different bills to address the problem, allowing MPs a conscience vote to choose which bill they preferred.

Last July the SA House of Assembly narrowly rejected one bill (the Summary Offences [Prostitution] Amendment Bill) which would have clarified and tightened the current laws against the prostitution trade.  The House of Assembly then narrowly passed the Prostitution (Regulation) Bill which would treat brothels as legitimate businesses. 

However on 17 May this year the SA Legislative Council firmly rejected this bill (12:7), after carefully considering evidence from interstate where similar legislation had caused an increase rather than a decrease in prostitution problems.

The main laws against the prostitution trade in Western Australia, Tasmania and New Zealand (eg the NZ Crimes Act sections 147, 148 and 149, plus the Summary Offences Act section 26) are very similar to South Australian laws.  The NZ Prostitution Reform Bill has key features in common with the South Australian Prostitution (Regulation) Bill.  We believe that our research on the history of prostitution law reform, including the effects of legalisation/decriminalisation of the prostitution trade in parts of Australia, could help parliamentarians in other places appreciate the likely impact of such legislation in their situation.

Who is pushing for legal brothels?

The sustained push to legalise the prostitution trade, in South Australia and elsewhere, has generally come from those who would profit from a removal of criminal penalties (eg pimps, brothel owners and media who earn or would earn large sums from prostitution advertising) supported by academics and others who espouse the newly fashionable theory of “voluntary prostitution”. 

This new theory claims that prostitution in third world countries is harmful because  pimps exploit and damage women and young girls, who have no choice but to sell their bodies to survive.  But in first world countries such as Australia and New Zealand, the theory goes, women freely choose to be prostitutes, avoid all health problems through the use of condoms, and earn lots of empowering money.  The fact that brothel madams generally take half of this money and drug dealers and pimp-boyfriends end up with most of the rest, is ignored by these theorists.  Madams have enthusiastically testified on TV and in newspaper articles about the happy, healthy hookers who work in their pure parlours to provide “sex therapy” for male customers.  In recent times the media have tended to ignore evidence from prostitutes who tell a very different story: their evidence is no longer “politically correct”.

The legalising of so-called “voluntary prostitution” began in Victoria in the mid 1980s and the fashion has been catching on, despite growing evidence that its main result has been an increase in exploitation of women.  Western Australia, Tasmania and New Zealand are the latest places to consider legalising commercial adultery. 

‘Legalise’ vs ‘decriminalise’

There is a small semantic difference between the term “legalise” which has come to mean setting up a licensing or monitoring body with special rules for sex businesses (and hence making those businesses which fail to follow the rules illegal) and the term “decriminalise” which means  to remove all legal sanctions so that sex businesses only have to comply with local council regulations applying to other businesses.  However experience in Australia shows that both systems result in large numbers of brothels operating outside any rules.

What problems does prostitution cause?

Prostitution is associated with a number of problems, including:

public nuisance - from street prostitutes who accost passing men, and “gutter crawlers” who accost passing women, and noisy, abusive, urinating clients near brothels;

*   the spread of sexually transmitted diseases to prostitutes, clients and their partners;

*   serious depression and drug addiction in prostitutes;

*   violence by customers and boyfriends (actually pimps) of prostitutes;

*   child sexual abuse (a significant percentage of customers prefer very young prostitutes);

*   other crimes such as trafficking in drugs, weapons and stolen goods, often conducted as a sideline by bikie gangs and other groups who dominate the closely-linked sex and drug trades.

The ‘legal voluntary prostitution’ theory

Those who are pushing for legal brothels claim that removal of criminal sanctions would address many of the above problems by:

*   eliminating street prostitution and escort agencies - the theory is that if prostitutes could legally work in brothels, they would no longer ply their trade in the more dangerous street or escort situation;

*   reducing the incidence of sexually transmitted diseases by allowing the open promotion of condoms and “safer sex” protocols in brothels and the application of health and safety regulations;

* allow prostitutes damaged by their occupation to be protected by trades unions and compensated by workers’ compensation programs;

* encourage prostitutes exploited by madams and pimps to report them to police.

The NZ Prostitution Reform Bill appears to use arguments similar to the above.  The aims of the Bill, stated in the Explanatory Note Overview (p 1) are to “safeguard the human rights of sex workers and protect them from exploitation, to promote the welfare and occupational health and safety of sex workers, to create an environment which is conducive to public health and to protect children from exploitation in relation to prostitution.”

It is interesting that the NZ Overview rejects the legal brothel model adopted by the Australian state of Victoria in the mid 1980s.  The Overview says on page 1 that the Victorian model has “resulted in a two-tiered system within which some participants are legal and others are forced to remain illegal, thus stimulating the growth of underground criminal activities.  In practice, therefore, this model has failed to achieve the desired level of regulatory control, and has been counter-productive to the interests of workers and clients in the sex industry.”

The NZ Prostitution Reform Bill drafters have therefore chosen the 1995 NSW model of brothel “decriminalisation”, which removed criminal sanctions against the sex trade and allowed brothels to be treated as “any other business”. 

However the Overview has failed to acknowledge that the NSW model has been just as disastrous as the Victorian legislation.

The basic problem is that a brothel or escort agency is not, and never will be, just like “any other business”.  None of the stated aims of the Prostitution Reform Bill has been achieved in practice, either for Victoria’s legalised brothels or for New South Wales’ decriminalised system.

The harm done by prostitution

The asbestos industry was once a lucrative trade - asbestos is a very good, fireproof insulator.  The downside is that its tiny fibres can cause, years later, serious lung diseases - asbestosis, lung cancer and the incurable killer mesothelioma.  Some workers have contracted mesothelioma even though they had only spent a few weeks in the asbestos industry.  The potential damage to workers was found to be so great that the whole asbestos industry has been banned in this country.

Prostitution, like asbestos, also harms workers.  Longitudinal research over 11 years by Oslo criminologists Hoigard and Finstad demonstrated that all prostitutes suffer deep psychological damage as a result of their occupation. (Hoigard, Cecilie and Finstad, Liv, “Backstreets: prostitution, money and love”, Polity Press, UK, 1992).  Hoigard and Finstad describe prostitution as a form of “violence against women”.  Their findings were echoed last year by senior clinical psychologist Tony Cichello who runs outreach clinics for prostitutes at the Royal Perth Hospital.  In an article in the WA Scoop magazine (autumn 2000, pp 33,36) Cichello says that prostitutes have to “switch off” from their work in order to cope (Hoigard and Finstad also talk about “switching off”, or “emotionally distancing themselves from their customers” - see chapter 4 of their book).  Cichello says the “unprocessed stress” which follows the continual switching off leads to “self-alienation, poor self-esteem and depression” in prostitutes, the root of drug addiction in many of them.

Former madam Linda Watson, who now runs a prostitute rescue ministry called Linda’s House of Hope in Perth, has stated that every prostitute suffers damage.  In an interview on Adelaide Radio Life FM on 25 February 2001, Ms Watson said she has known thousands of prostitutes during her 20 years in the sex trade, and every one of them has been damaged.  She and other madams had calculated that over 85% of the girls they employed had a drug habit.  “There is a honeymoon period after the girls start when they think the money and everything is wonderful,” Ms Watson said.  “But after a while they begin to hurt - their back, their head, their personal parts - and they turn to alcohol and other drugs to stop the physical pain, and the great emptiness inside them.  After a while they may wisen up to what’s happened, but by then it’s too late - they have a habit, and they’re trapped.”

Linda Watson strongly opposes the legalisation or decriminalisation of brothels.  “All it will do is proliferate prostitution and the psychological damage,” she said.  “If we can ban the asbestos industry because it damages the workers, then surely we can ban the sex trade!”

Why neither legalising nor decriminalising prostitution has stopped the damage

No Australian state which has legalised/decriminalised brothels has reduced the incidence of prostitution problems because the “legal voluntary prostitution theory” is falsely based.  The theory simply does not work in practice.  Workers compensation, much touted as a protection for prostitutes in NSW, has never been paid out.  Brothel owners treat prostitutes as self-employed contractors who rent rooms in brothels (at exorbitant rates!). 

In any case, Linda Watson says that mere money would not compensate or solve the problem.  “Since I have started my rescue ministry, I have had psychiatrists phoning me for advice from around the country,” she said.  “They have all these working girls on their books and they don’t know how to treat them.  The only thing they know is to give the girls drugs - like prozac or valium or naltrexone.  But drugs are not going to solve the problem.  The problem is the prostitution itself, and how it destroys your sense of who you are.  Drugs only mask the great emptiness and depression that the girls feel inside.

“In the House of Hope I give the girls unconditional love.  That way they can slowly rebuild their self esteem.  It takes a long time.  But what psychiatrist or workers’ compensation can provide unconditional love?” Linda Watson said.

The impact of legalising /decriminalising brothels in Victoria and NSW

Legalising/decriminalising brothels has led to a boom in prostitution of all kinds - particularly in street and escort prostitution which are said to be most dangerous for prostitutes.  And despite government health and safety programs, the boom has led to increased pressure on girls to forgo the use of condoms.  There has been no measurable improvement in STD rates in NSW or Victoria as a result of brothel decriminalisation or legalisation.  A survey by the NSW Council of Churches  in 1998  found that some sexually transmitted diseases had increased following passage of the new law in 1995.  The Council of Churches also found that violence against prostitutes, particularly Asians women, continued unabated.

Steve Condous, SA MP for Colton (West Beach) in the SA House of Assembly, told parliament on 12 July 2000 that he had originally intended to vote for legal brothels (Hansard, pp1834-1836).   He said he believed “adults had the right to have sex, it was their affair.”

But Mr Condous changed his mind ten days earlier after a visit to Sydney where he inspected 10 brothels and spoke to the girls.  “I went out with two responsible NSW police officers to look at the problem of prostitution,” he said.  “What shocked me most was the street prostitution.  I saw people as young as 15 years prostituting themselves in back alleys.  They were prepared to sell themselves and have unsafe sex without a condom to get another lot of heroin for their next hit.

“In NSW, prostitution is a huge industry.  It is made up of 800 brothels, 400 of which are legal and 400 illegal.  The industry is out of control.”  Mr Condous said councils had given up trying to eject brothels operating illegally.  It takes about 12 months for a case to go through the planning appeals courts.  The brothel owner simply waits until a decision is about to be handed down, then moves to different premises nearby and the council has to start the case all over again.

“When I spoke to some (NSW) people who were operating legal brothels, they said: ‘Why did we go to the trouble of paying $30,000 to go through the planning appeals courts to get legal documentation, which means the council’s health inspectors come in and look at us, when the illegals down the road continue to trade?’  I said, ‘What do the council inspectors do about trying to close them down?’  They said, ‘They’ve given up.’”

Mr Condous said that another thing that changed his mind, after visiting 10 brothels and speaking to 30 girls, was the expression on their faces.  He asked them about the psychological impact of prostitution, and for 95% of them, it was devastating.

“They said, How do you think you’d feel getting up in the morning knowing you were going to work to satisfy seven or eight men during the day, all of whom you do not want to sleep with, but you do it because of the money?  Most of them see a psychiatrist on a regular basis,” Mr Condous said.

Mr Condous said many Labor women MPs wanted WorkCover to be part of the legal prostitution scene.  “Let me tell you a couple of things,” he said.  “First, there is not a prostitute in New South Wales who works for a brothel.  The 10,000 or so prostitutes in NSW rent rooms off the person who runs the brothel and the brothel owner does not handle the money.  The working girls parade in front of the client; the client selects the girl of his choice; they go up to the room and the girl negotiates the deal knowing that she has to pay the brothel owner $90 for one hour’s use of the room; and whatever else the girl has done in negotiation goes into her pocket.  I have an agreement from one of Sydney’s leading brothels and it has all the conditions on it.  You do not have to consider WorkCover.  Every girl is self-employed.”

Mr Condous continued: “I certainly do not want to see in Adelaide a repetition of the problems currently being experienced in Sydney.  If that were to happen we would have a proliferation of hundreds of brothels.  The more brothels you have, the cheaper it becomes and the greater the risk the girls are prepared to take because, when the competition is tough, they will throw away the condom.”

Victoria legalised brothels in the mid 1980s under the Cain Labor government.  When these reforms resulted in a boom in prostitution with more problems, the Kennett Liberal government instituted further amendments to address the difficulties.  However an investigation  by Melbourne’s The Age newspaper published in February and March 1999 found that the Kennett reforms had failed as dismally as his predecessor’s.  The paper’s editorial (2/3/99, p 12) said, “As the Attorney-General, Mrs Jan Wade, conceded yesterday, (brothel) legalisation has not prevented the growth of a substantial illegal sex industry.  The number of unlicensed brothels in Melbourne is estimated to have trebled in the past 12 months, with more than 100 known to be operating... Worst of all, the hope that the existence of safe legal brothels would overcome the lure of street prostitution has not been fulfilled.”

The problem of street prostitution in the Melbourne suburb of St Kilda has become so bad that local residents took to the streets in protest on 25 February 2001 (“St Kilda turns on its oldest trade”, The Australian, 26/2/01, p 6).   The Melbourne Age (“The ugly truth of St Kilda’s trade in flesh and misery” 24/2/01),  reported that the protest was triggered by the many problems suffered by local residents, including condoms, syringes and faeces in their gardens.

While the Salt Shakers Melbourne newsletter (June 2000) noted there were 50 illegal brothels in Victoria before the government adopted prostitution licensing, the Melbourne Herald Sun newspaper reported (3/4/00, p 2) that Victoria now has 84 legal brothels, 31 legal escort agencies and 1143 registered private prostitutes - the latter increasing by 50% in just two years.  In addition there are over 100 illegal brothels (Herald Sun, 19/1/00, p 1) and a great, unknown number of unregistered private escort prostitutes.  The Herald Sun reported (19/1/00, p 4) that illegal prostitution in Victoria is now twice the size of the legal, licensed trade.

The Herald Sun reported (3/4/00, p 2) that “Victoria’s booming sex industry is operating almost free from regulation... the lack of policing means brothel bosses can flout the law by employing drug addicts and under-age workers, forcing prostitutes to see drunk or abusive clients and not providing condoms.”

New South Wales decriminalised brothels by a regulation system in 1995.  NSW brothels can now  operate just like other businesses as long as they conform to local planning regulations.  Before 1995, NSW prostitution was more visible than in South Australia because soliciting had been decriminalised by the Wran Government back in the late 1970s and successive Attorneys-General had not permitted any brothel prosecutions for years.  Now however, with brothels fully legal, there seem to be “no holds barred”.  An editorial in The Sydney Morning Herald (31/8/99) said: “Since the (NSW) Government effectively legalised brothels in 1995, the number of establishments operating in Sydney has more than tripled to somewhere between 400 and 500.  Many of these are unapproved businesses and fly-by-night operations...  Unsurprisingly, criminal elements retain a disturbing presence in the industry.”

A page one article in the Sydney Morning Herald on the same day, entitled: Brothel boom: the Asian connection, said: “The proliferation of Asian brothels has resulted in a huge supply of imported illegal labor which has resulted in undercutting of prices and unsafe sex practices.”

An article in The Australian newspaper (2/3/00, p 5) reported the NSW Police Commissioner, Peter Ryan, as saying there had been 40 shootings in Sydney’s south west suburbs in a three month period - all part of a “struggle between rival groups for control of the drugs and prostitution trades in parts of Sydney.”

A recent UN Save The Children report found that Victoria and NSW, which have legal brothels, are the two worst States for child prostitution (The Advertiser, 13/11/99, p 22).

A media release issued by the NSW Council of Churches on 2 July 1998 said (in part):

CHURCHES’ BROTHEL SURVEY SHOWS GOVERNMENT’S PLAN NOT WORKING

The NSW Council of Churches has conducted the first ever statewide survey on brothels since the passing of the Disorderly Houses Amendment Act in 1995 and the results show that the Carr government’s decision in legalising brothels clearly has not worked.

In releasing the survey results today, Council President, Rev John Edmondstone labelled the government’s legislation as “buck passing” and “window dressing”.

He said, “This legislation is now two and a half years old and we now have had plenty of time to evaluate just how successful the government’s decision to legalise brothels has been.”

Mr Edmondstone said, “In a word, it has been a disaster.  When the government pushed for community support for the legislation, the cry was that a legalised brothel would be a safer and more hygienic environment for workers in the sex industry to work and that there would be tighter health controls on the  sex industry.

“At the time, we were told that with local government monitoring brothels:

*  more stringent controls could be made on brothel establishment

*  the spread of sexually transmitted diseases would be reduced

*  infiltration of crime elements would be a thing of the past, and

*  street prostitution would disappear as sex workers moved indoors,” Mr Edmondstone said.

“What has happened is that the state government has passed the buck to local government giving them responsibility to administer brothels but with very little authority.  Local councils’ hands are tied.

“We have seen many cases where a local council has refused to grant a licence to an applicant to operate a brothel only to see the applicant gain state government approval  to override the local council decision through the Land and Environment Court,” Mr Edmondstone said.  “The facts are:

*  crime has not been eradicated from the sex industry

*  people (particularly Asian visitors on tourist visas) are still being bashed, raped and forced to participate in unsafe sex practices for their unscrupulous bosses

*  many Asian visitors are forced into sex slavery situations

*  numbers of people infected with sexually transmitted diseases are still high and cases of some strains have increased dramatically since the laws governing brothels was changed.”

Mr Edmondstone said, “With the number of cases of some types of hepatitis and some sexually transmitted diseases dramatically increasing since brothels were legalised, why would anyone try to suggest that legalisation would produce a safer or more hygienic environment? It’s absurd.”

Queensland introduced a system of legal, licensed brothels in July last year.  No licences have yet been granted, but already there has been considerable community concern at a “red light upsurge” anticipating licences (see The Courier Mail, 20/9/00) and sex trade murders continue.  New National Party leader Mike Horan, MP,  said (The Catholic Leader, 21/1/01, p 3) that legalising brothels would do nothing to make Queensland a better place.  “What it has done is set the stage for an explosion of prostitution in this state,” he said.  “It has added another layer - legalised brothels - to the legal single operators and illegal street walkers whom the Government has failed to curtail.”

The ACT government legalised brothels with a “registration” system in 1992.  Dr Barbara Sullivan of the Australian National University  told an Adelaide University seminar on 6/3/95 that ACT police had not prosecuted any prostitution offence in Canberra during the ten years before 1992, and an article in The Australian (23/2/95, p 11) said crime in Canberra brothels “remains rife” since legalisation in 1992 and that the tax man inspects brothels more often than the Canberra police.

This “police hands off” situation continues, according to a parliamentary researcher who told Festival Focus (September 2000, p 2) that although there is a government advisory committee on prostitution, requests for information about the ACT sex trade from the committee are usually stonewalled with comments such as: “Ask the industry!”  The researcher said ACT court transcripts show that drug dealers have made frequent drug runs to brothels - a fact largely unreported in the media.

The researcher said that ACT brothel owners do not require proof of age from prostitutes and health checks are not enforced.  One Canberra prostitute is known to have died of AIDS.  Illegal immigrants apprehended by police in legal brothels have been found back in prostitution soon afterwards.

In 1995 the SA parliamentary Social Development Committee visited Canberra to look at the legal brothel system.  A member of that committee, Stewart Leggett (Member for Hanson, in the Mile End area of Adelaide) told the SA House of Assembly on 14/11/96 (Hansard p 562): “A brothel madam in Canberra confided (to the Social Development Committee) her concern that with brothels legal there, the police never came near the place and all sorts of unsavoury things were going on which she was unhappy about, but no action was being taken.”

The ACT government has consistently defended its legal brothel system, saying it is working well.  However the hunt for the murderer of Saudi diplomat Abdullah Al-Ghamdi, a regular Canberra brothel customer, showed the need for a review of prostitution laws (The Australian, 11/1/99, p 3).  During the murder investigation, police entered brothels and asked questions - and uncovered evidence of drug use and child prostitution.  The findings of a government review of ACT brothel laws have not yet been made public, but it is clear that the ACT policy of treating sex businesses like other businesses has allowed child prostitution and other abuses to continue unchecked.

The lack of brothel oversight by ACT police, acknowledged by independent sources above, indicates that any official figures for prostitute numbers in the ACT such as those quoted by the  “Prostitution Law Reform” Briefing Paper, September 2000, are unreliable.

The history of prostitution laws

To understand why legalising brothels has resulted in more, not less, exploitation of prostitutes,  it is important to understand the history of NZ and SA prostitution laws. 

The debate began in the mid-19th century in the UK, when MPs argued (as some NZ MPs are saying now) that laws have never been able to stamp out prostitution, so it should be legalised and regulated, to minimise harm.  (The fact that laws have never been able to stamp out crimes of any kind, but have indeed been able to minimise their incidence, and hence, harm -  seems to have escaped some MPs, both ancient and modern!)

In 1860, British brothels were a fertile breeding ground for the spread of syphilis and gonorrhea, and Her Majesty’s defence forces were at particular risk of infection.  The 1864 Contagious Diseases Acts introduced state regulation of prostitution - long accepted in continental Europe - to Britain.  The new laws required prostitutes in ports and garrison towns to be registered by police and regularly examined by doctors.

The only trouble was, these harm minimisation laws didn’t work.  Bribery and corruption were rampant, and sexually transmitted diseases increased rather than decreased.  Registered prostitutes were branded for life.

The Contagious Diseases Acts were finally repealed in 1886, following a 20 year campaign led by Josephine Butler.  She saw at first hand the enormous exploitation of the sex trade when her husband, an Anglican priest, was sent to a church near the port of Liverpool.  Mrs Butler is best known for her work against prostitution abuses, but she and her husband also promoted other politically incorrect causes of that time - higher education for women, the abolition of slavery, home rule in Ireland and women’s suffrage (for more details see Butler J, “Reminiscences of a Great Crusade”, Horace Marshall, London, 1911).

The evidence gathered by Josephine Butler and others led to the widespread rejection of state-licensed brothels in the UK, Europe, Australia and North America.  Further investigations by the League of Nations and later the United Nations produced one of the very first UN Conventions: for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (1949).

Josephine Butler argued - and the UN later agreed - that the most serious prostitution offenders are those who exploit the prostitution of others.  The procurers, the pimps, the brothel owners, madams and brothel landlords are greater villains, deserving much heavier punishment than the prostitutes themselves.  Many prostitutes then, as now, have a tragic background of childhood sex abuse and of poverty.  Prostitution adds a further layer to the abuse and leaves permanent psychological scars, as the Scandinavian research of Hoigard and Finstad has shown.

A 1998 report, Prostitution in South Australia by the SA Police, comments: “In South Australia the law has never penalised prostitution as such, but has struck at ancillary activities such as keeping a brothel.”  (Riach, J, editor, Prostitution in South Australia, Strategic Development Branch, SA Police, PCO 458/92, May 1998, p 25).  This aspect of SA (and also NZ) law follows Josephine Butler’s approach - targeting the prostitution trade rather than the prostitutes. 

Current SA and NZ law is based on the 1949 UN Convention for the Suppression of Traffic in Persons and of the Exploitation of the Prostitution of Others, which requires parties to punish any person who procures another for prostitution, even with the consent of that person, or exploits the prostitution of another person, even with the consent of that person, or keeps, manages or finances a brothel, or lets or rents a building or other place for the purpose of the prostitution of others (Study on Traffic in Persons and Prostitution, United Nations, 1959.).  It is similar in philosophy to anti-drug laws which target the drug dealer more than the drug user.

Powerful ‘first world’ prostitution lobby

However the power of the prostitution lobby is so strong in modern Western nations that attempts are being made to change the basis of all prostitution law.  The sex-for-money lobby, ignoring the years of international research, wants procurers to be free to entice women and men into prostitution if there is apparent “consent”, and wants pimps free to live off the earnings of prostitutes. 

Non-consent hard to prove

But as prosecutions for rape have demonstrated, lack of consent is very hard to prove in court.   And can any woman validly “consent” to what criminologists Hoigard and Finstad  describe as “violence against women”?   The 1949 UN Prostitution Convention argues that the law should not stand idly by while women and men are enticed into a trade which will leave them with permanent emotional and possibly physical damage.

Australia now has federal and state laws against “sexual servitude” - but they are not working.  Former federal police officer Chris Payne said on The Law Report on ABC Radio National on 14 November 2000 that based on evidence he had seen, there were hundreds of illegally imported Asian women being exploited in NSW brothels every day.  However there have been no prosecutions under the supposedly “tough” laws because of lack of evidence that would stand up in court.  Payne said, “On the scale we were seeing in Sydney, we used to hear some estimates of anything up to 500 (Asian) women illegally in Sydney at any given time on false papers, working in these brothels.”  An article headed “Police prove impotent in sex slavery trade” in The West Australian (11/6/01, pp10,11) echoed Payne’s comments.  It noted the complete failure of laws against sexual servitude to achieve convictions in eastern states, despite evidence of large numbers of Asian women being brought there illegally.  “At least four Sydney-based groups are importing girls who are shared between Melbourne and Sydney brothels,” the article said.  It is clear that adequate police investigation becomes difficult if not impossible where the sex trade is considered legal and legitimate.

A US State Department human rights survey, published on 25/2/00, condemned lax prostitution laws in Australia, including legalised prostitution in several areas, which have led to increased “trafficking in East Asian women for the (Australian) sex trade.” (The West Australian, 28/2/00).

Modern pimps

Clauses 7 and 8 of the Prostitution Reform Bill would make procuring or living on the earnings of prostitution an offence if there is coercion.  These clauses do not take into account the reality that modern pimps and madams generally use subtle emotional pressure to get their way instead of heavy-handed tactics.  In 1986, a former prostitute “Kelly” (not her real name) contacted Festival of Light office during the debate on the Pickles Prostitution Bill.  Kelly described a typical procuring ploy:

I knew several girls who got into prostitution through their boyfriends.  The boys would say they loved them and promise them the world - overseas trips, everything.  The girls would think they meant it, but they’d end up working in parlours for the boys seven days a week, with no social life or anything.  Of course, the overseas trips never happened.  The girls worked all the time and their boyfriends would be playing cards down Hindley Street [Adelaide]or stringing more girls along.

In 1995, another former prostitute, “Julie” came forward to tell her story.

I was 18.  I had a drug habit and I needed money fast.  Prostitution seemed a good way to get it.  It was legal - you could open the paper, look up the ads and choose a brothel to get a job that night.  It was that easy.

Legal brothels are a comfortable way to begin.  There’s no threat of the Vice Squad lingering in the air.  But prostitution has a way of taking over your whole life.  You can find it very hard to get out.

I had no idea of that when I began.  A friend of mine in St Kilda, also on drugs, was a prostitute.  She said she would show me how to do it.  My friend normally worked from the street.  She preferred it that way.  She only took a job in a brothel that night so she could teach me.

Some MPs claim that legalising brothels cuts down the amount of street prostitution, but that isn’t happening.  Brothels can be very unfriendly places for girls to be in.  They are treated like cattle in a meat market.  They are constantly competing with the other girls.  The older and less attractive ones can make life miserable for the others.

That is one reason why girls sometimes solicit from the street, or are constantly on the move.  In the four years I was in the business, I moved from one brothel to another.  Once you’re “in”, it’s hard to get out, so you keep moving, and as you get older, you go down the ladder and get more desperate.

“Regulating” brothels does not stop others from operating outside the rules.  I didn’t worry about whether the brothels I worked in were legal or not.  In all those brothels, police only checked once.

I’d have to say that when I first got into prostitution, I felt good about all the money I was making.  I convinced myself that I enjoyed it.  But as time went on, I enjoyed it less and less.  I began to hate what it was doing to me.  To be a prostitute, you have to become part of someone else’s fantasy, and that can be very destructive...

Legalising brothels doesn’t remove the pimps... the legal system actually provides a comfortable environment for pimps to operate... (eg) the “loving” boyfriend.  This type of pimp looks very nice on the outside - the kind of man we all long for.  He drops the lady off at the brothel with a kiss goodbye.  He drives away (often in her car) to go about his daily “business”.  This is usually buying drugs, alcohol or gambling, with her money.  At the end of the shift, he arrives ten minutes early to pick her up.  This serves two purposes.  He establishes good rapport with the other girls and the management, and he is able to assess if his girl has had a “good” day - he sees first hand how much she is paid.

On the way home he lies to her about how he has spent her money - “all day at the mechanic’s today love - the car broke down!”  At first he seems so charming and debonair.  But then Dr Jekyll slowly turns into Mr Hyde.  The abuse and loneliness begin and the girl’s dreams finding true love gradually shatter.

The reality is that legalising or decriminalising the sex trade have not brought successful prosecutions against pimps for this kind of behaviour.  This is one reason why the United Nations argued for an absolute ban on pimping and procuring in 1949.

In April 1991, the then professor of education at the University of Queensland, Eileen Byrne, wrote a damning indictment of the prostitution trade in a submission to the Queensland Criminal Justice Commission’s inquiry into prostitution laws.  Her submission was based on her personal experience of 13 years as a social worker in the London slums and 20 years of international policy making in the area of prostitution.

Professor Byrne told how child prostitution was a much greater problem in France, where the sex trade was tolerated, than in Britain, where it was not.  She said:

In London, we found both in the 1960s and the late 1970s that only when there was a hard crackdown on brothels and other organised forms of prostitution, could we cut back the traffic in young boys and girls and help social welfare agencies to get young people aged 12-20 out of the system.  Public tolerance or a legal blind eye created increased traffic in the innocent and the vulnerable...

The rescue of the young is often less possible under a legalised prostitution system.  Evidence not only from international committees of inquiry, but from social welfare agencies who work across European country boundaries, shows a consistent pattern in Europe of a poor history of police-welfare attitudes towards young prostitutes of under 18 who attempt to leave the system...

We could not have acted to close the London brothels, break the syndicate and discover and rescue the girls, without the sanction of the illegality of prostitution.  We must have the law on our side.

Overview wrong

The first UN principle undergirding prostitution law is that the act of prostitution is not illegal per se.  It is quite wrong to state, as does the Overview in the Explanatory Note at the beginning of the Prostitution Reform Bill, that “New Zealand’s existing laws pertaining to prostitution are designed to criminalise the sex worker...”

There is no NZ law which prohibits the act of prostitution or which makes it an offence to be a prostitute or sex worker!

The NZ laws pertaining to prostitution, like the SA laws pertaining to prostitution, target the trade of prostitution, not the act of prostitution per se.  The heaviest penalties are reserved for the sex trade exploiters - for procurers who persuade others to become prostitutes; for pimps who live off the prostitution earnings of others; for madams who run brothels; for landlords who knowingly rent their properties for use as brothels.   Prostitutes are subject to lesser penalties if they are accessories to the above crimes, or if they solicit.

The impact on NZ society of the passage of the Prostitution Reform Bill

Removal of criminal sanctions against the NZ sex trade would produce the following results:

* Much more open, blatant street prostitution.  In Holland, which has decriminalised prostitution, the street and brothel trade is now dominated by illegal immigrant women, imported by Polish and Russian mafia.  These facts were reported on 10/4/00 at an Adelaide University seminar on prostitution in Holland by Joyce Outshoorn of the University of Leiden.  New Zealanders could reasonably expect to find many Maori and Polynesian women on the streets, and many more “gutter crawler” males in their wake.  Laws against harassment would not stem the tide.  The immigrant women would not complain to police about abuse or coercion by their pimps because they would fear deportation - just as has happened in the Netherlands.

* More organised crime, as rival criminal gangs compete for a share in the increased sex market.  With street, brothel and escort prostitution treated as “any other business”, there would be no danger of police raids, and councils do not have the resources for adequate health and safety inspections (which in any case are always on notice, so evidence of child prostitution, drug use etc can be removed in advance).

* More disease - because the increase in street and other forms of prostitution would create more competition between prostitutes.  Girls desperate for cash would then be more likely to succumb to offers of more  money for unsafe practices, as Steve Condous MP reported is happening in NSW.  SA MP Stewart Leggett  told the House of Assembly on 14 November 1996 (Hansard p 562) that “under our present laws (banning the sex trade), the incidence of sexually transmitted diseases among South Australian prostitutes is remarkably low.  Part of the reason for the low incidence of disease is simply because prostitution is minimised in this State and is, therefore, a seller’s market.  The prostitute can impose his or her terms on condom use and what acts she or he will or will not do.  It is in the highly competitive situation associated with legal prostitution that buyers can shop around for particularly dangerous and offensive practices.”

The boom in prostitution which would follow any softening of the law would create two problems.  One - the buyer’s market thus created would put pressure on prostitutes to forgo the condom for more money, since many men do not like condoms.  Two - condoms do not reliably protect against all STDs, especially those transmissible by skin contact, such as genital warts (implicated in cervical cancer), genital herpes, syphilis and pubic lice.  Prostitutes in a seller’s market can carefully examine customers for visible signs of these diseases and refuse to service those found to be infected.  However prostitutes in a buyer’s market, particularly prostitutes with a drug habit, are less likely to be so particular.

* More drug abuse.  The sex and drug trades go hand-in-hand.  This is partly because prostitutes use drugs to mask their physical and emotional pain, and partly because a brothel bedroom is an ideal place to do drug deals - especially when a decriminalised brothel system assures privacy.

Legalising or decriminalising prostitution always results in some expensive “upper class” brothels which charge high prices and insist on high standards of dress and grooming in employees.  When, after their “honeymoon period”, high class prostitutes start hurting and turning to drugs, they often fail to meet grooming standards, and lose their jobs.  They then begin the downward spiral.  Madams and prostitutes who act as spokespersons for the sex trade (eg to government inquiries) come from the top, not the bottom of the spiral, and create a distorted impression of life in prostitution.

* More child prostitution - as Professor Byrne has explained.  If prostitution occurs openly in society and is treated as “any other business”, children as well as adults would get the message that it is an acceptable way to earn money.  Experience overseas where prostitution laws are lax or non-existent shows that many brothel customers have a preference for younger prostitutes.  A women’s adviser to the Thai Prime Minister, Dr Saisuree Chutikul, told a UNICEF press conference at the Beijing UN women’s conference in 1995 that prostitution has become so normal in her country that many men consider it “like having a cup of coffee” - and child prostitution is a big problem (The Australian, 13/9/95, p 7).

Recommendations relating to the NZ Prostitution Reform Bill

We recommend that the Prostitution Reform Bill be rejected in favour of a bill to amend the NZ Crimes Act to:

(1) broaden the definition of “procuring” in section 149 - replace “any woman or girl” with the words “any person”, and increase the maximum penalty to ten years imprisonment: procuring is the most serious prostitution offence, and the most serious procuring offences involving children, or violence, drugs, kidnapping etc, require a highly deterrent penalty;

(2) increase the maximum penalty for brothel keeping and brothel landlords (section 147) to seven years imprisonment;

(3) increase the maximum penalty for living wholly or in part on the earnings of prostitution (section 148) to seven years imprisonment;

and to amend the NZ Summary Offences Act to:

(1) prohibit all forms of direct or indirect prostitution advertising (ie any advertisement in any form or medium which directly or indirectly conveys a message to a reasonable person that sexual services are or may be available, or that employment relating to the supply of sexual services is or may be available; a warning to be issued on the first offence, with the warning notice constituting evidence for the prosecution of any subsequent offence) with a maximum penalty of a fine of $10,000;

(2) make it an offence to be in a brothel, or premises used to facilitate the prostitution of others, without reasonable excuse (maximum penalty a fine of $1000, to be reduced or waived in the case of a convicted prostitute if the offender attends a rehabilitation program);

(3) increase the maximum penalty for soliciting for prostitution (section 26) to a fine of $1000, with a reduced or waived penalty if the offender attends a rehabilitation program.

 

Conclusion

Laws against the trade of prostitution should remain on the statute books of New Zealand, WA and Tasmania because of the damage prostitution does to those involved and to the wider society.

NZ, WA and Tasmanian parliaments should learn from the mistakes made elsewhere.  Those governments which have decriminalised or legalised the sex trade have created a prostitution boom which has led to more exploitation than before.  None of the stated aims of the NZ Prostitution Reform Bill has been achieved by similar laws in other places.

NZ, WA and Tasmanian parliaments should ensure that the principles established in the 1949 United Nations Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others are upheld by law, and enforced.

 

This article was reproduced with the kind permission of Festival of Light - South Australia

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The New Zealand Prostitution Reform Bill