Why Politicians Must Dump Prostitution Bill
THE SOCIETY FOR THE PROMOTION OF COMMUNITY STANDARDS
P.O. Box 13-683 Johnsonville
Tuesday 3 March 2003
Why Politicians Must Dump Prostitution Bill
The Society calls on all politicians, especially those who have claimed publicly to care about the welfare of women and young persons, to vote against the decriminalisation of prostitution, as contained in the socially irresponsible Prostitution 'Reform' Bill - during its second reading stages - a Bill that involves repealing the criminal laws and penalties relating to brothel-keeping, living off the earnings of prostitution, procuring for sexual intercourse (pimping), and soliciting.
The Society supports s. 7(1) and s. 9 (1-5, &7) of the Bill which seek to uphold Article Section 34 of the United Nations Convention on the Rights of the Child 34 of the United Nations Convention on the Rights of the Child - the protection of children (defined under article 1 as those under 18 years of age) from all forms of sexual exploitation and sexual abuse (including exploitation through prostitution). However, the Society points out that this Bill offers no real protection to those under the age of 18 years involved in prostitution. 1. Definitions
Prostitution is defined in New Zealand law in the Massage Parlours Act 1978 as: "The offering by a man or women of his or her body for purposes amounting to common lewdness for payment".
The Concise Oxford Dictionary defines the adjective "lewd" as "lascivious, unchaste, indecent". It defines "lascivious" as "lustful, wanton, inciting to lust" and the word "lust" as "sensuous appetite regarded as sinful; animal desire for sexual indulgence, lascivious passion" (italics added). (Lust is the opposite of the virtue of purity which channels the sexual passion to within marriage - a lifelong bond between one man and one woman, for the giving and receiving of love and for the procreation and nurturing of children).
The Prostitution Reform Bill (henceforth referred to as "the Reform Bill") seeks to repeal the Massage Parlours Act 1978 in its entirety, along with sections 147 to 149 of the Crimes Act 1961, section 26 of the Summary Offences Act 1991, the Massage Parlour Regulations 1979 and its Amendments No 1 & 2.
The definition of prostitution (quoted above from the 1978 Act), involving the term "common lewdness", will go and be replaced with a sanitised version designed to expunge any hint of the immoral, "sinful" or "licentious" nature of the act of prostitution. Prostitution will be defined under the Reform Bill as meaning "the provision of commercial sexual services" (clause 4, p. 3), no more, no less. "Commercial sexual services" will be defined as "sexual services provided for monetary or material reward (irrespective of whether the reward is, or is to be paid or given (directly or otherwise) to the person who provided the sexual services)" (clause 4, p. 3).
Such sanitised definitions ignore the objective fact that prostitution is a vice - lust - consisting of an inordinate appetite for sexual pleasure misdirected in sinful acts. There is no escaping the moral aspects of prostitution despite the efforts of proponents of the Bill to excise all reference to morality from the Reform Bill. It is ironic that the same proponents are arguing that the current law should be repealed because "a double standard of morality" operates which allows a sex worker to be arrested for soliciting, but protects the client. Even if we grant this apparent inequity and concede the need for a better balance, the appeal to "morality" undercuts the claim that this Bill has nothing to do with public morality. All the Bill's supporters have done is circumscribe issues of morality to only those public actions which could involve so-called "discrimination" and hence be potentially subject to the Human Rights legislation. This is a narrow, false, and ideologically-driven redefinition of public morality which has little connection to the real world which is blighted by the evils of prostitution, including the overwhelming harm inflicted on women and families.
Sections 147 (Brothel-keeping), 148 (Living on earnings of prostitution) and 149 (Procuring sexual intercourse [i.e. pimping]), of the Crimes Act 1961, will all be repealed under the Reform Bill. Each of these sections fall within Section VII of the Crimes Act 1961: "Crimes Against Religion, Morality, and Public Welfare Crimes Against Public Welfare". Under the Reform Bill all three criminal offences, each punishable by a term of imprisonment of up to 5 years under current law; will be legal, as both avenues of employment and activities to be engaged in, and as a career options to be promoted to students over 18 years of age in NZ high schools.
All massage parlours, currently flouting the law and operating as brothels, are still required to be licensed at present under Section 147 of the Crimes Act 1961. All operators must keep a register of all sex workers currently working. With the repeal of this law under the Reform Bill, all these requirements will be gone. It will be open slather. Nothing by way of comparable regulations have been included in the Reform Bill.
The act of procuring for gain or reward any willing woman 18 years or over (whether at high school or not), to have sexual intercourse with any male who is not her husband, will no longer be an offence. The act of soliciting, punishable under current law (Summary Offences Act 1981) by a fine not exceeding $200, will also no longer be an offence. Both pimping and soliciting will be legal.
Much is made in the "Explanatory note: Overview" to the Prostitution Reform Bill of the "clear distinctions" and "specialised meanings" given in "the international literature on prostitution law reform", to the terms "legalisation and decriminalisation". On page 2 it states: "Legalisation involves making prostitution legal under certain, State-specified, conditions" and this flawed approach ("failed ...model") has "typically resulted in a two- tiered system (for example, in Victoria, Australia) within which some participants are legal and others are forced to remain illegal, thus stimulating the growth of underground criminal activities."
2. De facto legalisation of prostitution
The Bill does exactly what it claims not to do. It imposes "State-specified, conditions" (see conditions s. 6(1) (a-d) on "Every person who operates a brothel or who has effective control of a business of prostitution", which if not adhered to, is punishable by a fine of up to $10,000 (s. 6). Any "business of prostitution" (defined in s. 4 [a-b]) is thereby made illegal if these "State-imposed, conditions" are not adhered to. Logically the converse must hold true. Operators are deemed by the State to be operating a legal business, if they adhere to these State-imposed regulations, and cannot be fined.
These conditions or regulations are found in part 6 (1) of the Bill: (a) "all practical steps" must be taken by the brothel operator "to ensure" that "clients of that brothel or business of prostitution" wear condoms, (b) information on so-called "safer sex practices" (i.e. use of condoms) must be given to sex workers and clients, (c) information on the use of condoms must be displayed prominently in the brothel or business of prostitution, and (d) the operator must not seek to use information relating to a sex worker's attendance at a medical examination, or the result of such an examination, to induce a person to believe the sex worker is not infected with a sexually transmissible disease (STD).
While the Bill does not support the same State-specified conditions, such as the licensing and zoning regulations relating to brothels and the requirement of regular fortnightly health checks for "sex workers", as implemented in Victoria, it does impose conditions relating to how sexual services can be advertised by the operator, the wearing of condoms, and the nature of the propaganda to be disseminated within the brothel concerning so-called "safer sex practices".
The Bill decriminalises (a) "soliciting and indecency" by prostitutes and pimps in a public place and (b) the activity of brothel-keeping. These activities are effectively legalised de facto for they can be carried out in a public place, promoted openly through the media and in high schools as State approved business ventures and career alternatives for those over 18 years of age, and dealt with in the employment courts as State-approved business and industry activities etc.; without prosecution. If they are to be merely decriminalised as opposed to legalised (if we were to accept the flawed distinction between the two in the Bill's preamble), then why are State-imposed regulations to be imposed on brothel keepers?
The Bill's advocates will no doubt answer that such regulations only relate to "promot[ing] the welfare and occupational health and safety of sex workers" and "creat[ing] an environment which is conducive to public health". Such regulations they argue are no different in kind to health and safety regulations operating in other industries such as the building industry, where hazards exist and care must be taken by workers, and in turn, where employers have obligations under the law to protect employees against harm.
Such arguments are spurious. Consider section 6 (1) (d) of the Bill [Brothel operators must "not use the fact of a sex worker's attendance at a medical examination, or the result of such an examination, for the purpose of inducing a person to believe the sex worker is not infected with a sexually transmissible disease"] in the light of a parallel case, one involving beef testing and mad cow disease.
Government health officials have lawfully and in good faith assured the general public in parts of Europe that beef is free from this disease, following multi- million dollar extensive scientific testing of farm animals, meat etc. Their assurances, while in some cases later proved over-positive in the light of subsequent data, are required if the beef industry is to survive. Public risk is carefully evaluated and the scientific facts presented. Of course officials cannot give 100% absolute assurances to the public but are entitled to evaluate and communicate risk factors and probabilities etc. They can certainly lawfully inform the public of stringent health checks done.
However, under the Prostitution Reform Bill, brothel owners are liable of incurring a fine of up to $10,000 if they dare to market their establishment or any "sex worker" as STD free on the basis that sex workers get regular weekly health checks and certificates to prove they are STD free. One wonders why if the health of sex workers (and presumably their clients) is of paramount concern to the Bill's proponents, as claimed, a brothel owner/operator is not entitled to lawfully market his/her 'products' as clean?
The reason for the restriction against marketing the 'products' on offer in brothels as STD free is that the Reform Bill's proponents know full well that it is a well established scientific fact that no amount of stringent testing and certification of a prostitute can provide anything near a reasonable guarantee of the unlikely chance of the transmission of an STD to the next client. If STD-free claims are made, the "sex-worker" is liable to be subject to legal action on the basis that the claimed service was defective, by any client who becomes infected.
Proponents of the Reform Bill argue that the inclusion of section 6 (1)(b) and the $10,000 fine (s. 6 ) will protect the "human rights of sex workers" in such cases of litigation. But if "commercial sexual services" are to be treated like any other service industry as a result of the decriminalisation of prostitution, as intended, and be brought "within the scope of existing legislation (for example, the Employment Relations Act 2000...)"; then what about the rights of the client? And what about the "rights" of those who do not indulge in acts of lewdness and have to subsidise through their taxes the ongoing costs incurred by health funding agencies, health clinics etc. that are involved in cleaning up the medical and social consequences of this perverse 'industry'.
3. STDs and "Safer Sex Practices"
All the STDs that ravage the bodies of sex workers and their often unsuspecting clients, such as gonorrhoea, syphilis and AIDS, have periods of dormancy where symptoms are not detectable without specialised blood tests. The careless use or an accident involving a condom by the very first client of a prostitute, fresh from a medical examination and with a 'clean bill of health', can result in the immediate infection of the sex worker, if the client has an STD. Because of the dormancy period of the STD the "sex worker" will be unaware of the STD infection until the results of the next health test. Meanwhile, with gay abandon the "worker" will be 'lovingly' fulfilling the 'sexual gratification needs' of additional clients, all of whom are at real risk of catching the STD from the infected sex worker.
Opponents of both the legalisation and decriminalisation of prostitution object to any claim by advocates of the 'reform' bill that "safer sex practices" (wearing condoms) "promotes occupational safety and health" (s. 3) as this ignores the other real forms of harm inflicted on prostitutes and their clients.
4. "Injurious to the public good"
Prostitution always includes the dehumanization, objectification, and fetishization of women and children. Leaving aside the many well- documented cases of physical harm and abuse inflicted on prostitutes, the 'industry' is injurious to the mental, spiritual and emotional health of the majority of women involved in it. Recent published studies involving 854 prostitutes from nine countries (representing five continents) have revealed that 68% of them had post-traumatic stress disorder an indicator of emotional distress, directly related to their work in the "sex industry" (see work by Melissa Farley PhD). The Bill seeks to "safeguard the human rights of sex workers and protect them from exploitation". Section 8 is headed "Right to refuse to provide commercial sexual service".
Let us consider the replacement of the term "sex worker" in S.8 of the Bill by "cleaning contract worker" to highlight the absurdity the claim by proponents of the Bill that by decriminalising prostitution, this "commercial sexual service" or "industry" (p. 2) will be able to be brought "within the scope of ... the Employment Relations Act 2000" etc., making it legal de facto. S. 8 now reads:
"Every [cleaning contract] worker may at any time refuse to provide any commercial [cleaning contract] service or, where the provision of that service has commenced, to continue to provide that service, and any agreement purporting to remove the right to refuse to provide or refuse to continue to provide such a service is void."
What justification is there for the inclusion of this section in the Bill if the"sexual service industry" is to come under the Employment Relations Act 2000, following decriminalisation? Why the special treatment and the need for special rights so-called? The answer given by proponents of the Bill is that "sex workers" need to be protected against unscrupulous commercial operators who insist that they perform "sexual services" on clients which may be risky or involve non-"safer sex practices". However where prostitution has been "legalised", such operators are recognised to be those operating illegal operations.
Put simply, clients wanting sex with prostitutes without using condoms can go to illegal brothels and sex workers will always remain vulnerable to non-safer sex practices when they chose to operate in such brothels. To suggest that decriminalising brothels and imposing fines on operators who do not "take all practical steps to ensure the use of prophylactic sheaths by clients" (s. 6 (a)) will safeguard the "human rights of sex workers" and "promote the welfare and occupational health and safety of sex workers", is highly questionable. Already the NZ public has been overwhelmed with a constant bombardment of "safer sex messages" and pro-condom messages and yet the incidence of STDs, especially among young people, has been increasing at an alarming rate. Men who want sex without condoms or any other service will still find plenty of workers prepared to assist if the remuneration is right.
The 'profession' of prostitution is a cancer on society and women "sex workers" are among its many victims. The Reform Bill issues a season of "open slather" in prostitution and opens up a Pandora's box. Prostitutes are predators and their trade is morally repugnant. The focus of moral outrage, by opponents of the Bill, is the actions of sex workers and the moral and social effects brought about by such deviancy. The anger is justified given the fact that their corrupting influence is "injurious to the public good". In the same way in which the Classification Office arrives at its decisions assigning publications to the category of "objectionable", by taking account of the potential for public injury, the general public and/or any discerning body of investigators, can only but conclude: prostitution is injurious to the public good, and should remain a criminal offence.
The growth in our country of sexual offences committed involving extreme depravity, indecency and cruelty, all have their origin in the free reign given by individuals to their "lower" animal, and morally deviant aspects of their human nature. The function of the law not to make or force people to be morally virtuous, as it cannot do this. Rather it sets the baseline below which behaviour is deemed by society to be corrupting to societal moral health and welfare, and enforces it. The law is a preserver of societal welfare and is not primarily focused on individual's rights.
It is a misguided belief that this Reform Bill safeguards the health, welfare and safety of individual "sex workers", mainly women. Rather it creates and promotes the growth of all that is most destructive to society: (1) the denigration of women, especially the young, whereby their actions as sexual predators, and their treatment by men as mere objects of sexual gratification, is condoned and legitimised de facto by the State, (2) the rejection by the State of any notion of moral accountability and responsibility involving in the actions of those who perpetrate and participate in indecencies etc., (3) the spread of STDs which can be passed on despite efforts to promote "safer sex practices", (4) the destruction of marriage and family bonds through acts of betrayal (husbands 'cheating' on their wives), (5) the abrogation by the State of its responsibility to maintain acceptable levels of public decency, by the planned for repeal of the law against soliciting.
The sociological factors that constantly fuel the need for brothels have been overlooked by this Bill. Excellent overseas research has shown that as Society has become more tolerant of all forms of pornography, men in particular place more demands on prostitutes to perform more and more riskier sexual practices. Clients demanding to engage in anal intercourse and other forms of sexual deviancy with prostitutes, practices promoted through multitudes of hard-core pornographic web-sites and magazines flooding the market, and common place among the homosexual community, find a fertile ground for new sexual experimentation in brothels, practices which may well not be open to them with their spouse.
The decriminalisation of prostitution is not the answer to the reduction in the suffering of women trapped in prostitution, for whatever reason. A task force needs to be set up to examine means to get such women out and into real work that provides real human dignity and self worth. The Reform Bill offers nothing directly to alleviate the suffering of such women. Instead it puts the State in the role of pimp by legalising the 'industry' de facto and then setting in place a system which will ensure that it gets its 'pound of flesh' by way of the tax system and hefty fines of up to $10,000.
The Bill is injurious to the public good. Its strength lies in its attempt to consider the needs of children. The Society supports s. 7(1) and s. 9 (1-5,7) of the Bill which seek to uphold s. 34 of the United Nations Convention on the Rights of the Child - the protection of children (defined under article 1 as those under 18 years of age) from all forms of sexual exploitation and sexual abuse (including exploitation through prostitution). Appendix
Article 34 of the United Nations Convention on the Rights of the Child States: Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent:
(a) The inducement or coercion of a child to engage in any unlawful sexual activity;
(b) The exploitative use of children in prostitution or other unlawful sexual practices;
(c) The exploitative use of children in pornographic performances and materials.
Submission on the Prostitution Reform Bill made to The Justice & Electoral Committee by The Society for the Promotion of Community Standards Inc. on 5 March 2001
Available on-line http://www.vision-nz.co.nz/prb1.htm