New Zealand's Migrant Sex Workers Are Still Criminalised Under The Law

New Zealand’s Prostitution Reform Act of 2003 is a world-leading piece of legislation—so world-leading, that even now, 15 years after it passed into law, it is still regarded as the most progressive sex-work legislation in the world. But embedded within the act is a clause that sex work advocates have long taken issue with: Section 19, which stipulates that no one on a temporary work visa—be that a student visa or a working holiday visa—is legally allowed to take part in the sex work industry.

Annah Pickering from the New Zealand Prostitutes Collective (NZPC) told VICE the legislation as it stands puts migrant sex workers in Aotearoa in a precarious position, something akin to the position of all New Zealand sex workers before the Prostitution Reform Act was passed into law. “It sort of takes me back to the time before the law change to what our experiences were before decriminalisation. So the structure of it is like what it was for us before the law change, so I can sort of acknowledge that and know what that's like. Because some of us have experienced that.”

VICE caught up Dr Lynzi Armstrong, a Victoria University academic whose research focuses on sex worker rights, sexual violence, anti-trafficking, stigma, and the impact of law on marginalised communities, to talk through the legislation and ask what she thinks needs to change.

VICE: Hi Lynzi, what’s the background of your research into migrant sex work in Aotearoa?
Dr Lynzi Armstrong: It’s something I became generally aware of in the course of my PhD. Last year I became involved in a project coordinated by the Global Alliance Against Trafficking Women, which is an organisation based in Thailand. They coordinated a multi-country project, essentially looking at how sex-worker-led organisations interact with the anti-trafficking framework and the impact that that has on their work. I was asked to lead the NZ based research, which I did in collaboration with the NZPC, exploring with them how they perceived the anti-trafficking framework and how it impacts on them.

In the New Zealand context, what came out was that we have a framework which is generally very progressive; it is the most progressive framework in the world in terms of providing sex workers with rights. But we have this unfortunate clause within it—Section 19—which prohibits people who hold temporary visas from doing sex work.

What are the impacts of Section 19?
Migrant sex workers often feel that they have very few options available to them if they are treated unfairly, if they experience violence. If they report what they’ve experienced, they bring themselves to the attention of authorities and they then risk being deported, which obviously has significant impact for people.

Is the rationale behind the clause, basically, an anti-trafficking measure?
It was introduced as a kind of way of protecting against the risk of trafficking in sex work because there were concerns at that time that decriminalisation would result in an increase in trafficking into sex work. But there isn’t actually any evidence that suggests that this clause provides any protection from trafficking, and there’s building evidence that that clause has actually provided conditions that are more conducive to the exploitation of migrant sex workers.

So basically you’re saying this clause has the absolute opposite of its intended effect?
The evidence is still building in this area, but the evidence so far, what it’s suggesting is that we’ve got this context where migrants if they are mistreated—if they are treated unfairly, or even if they experience violence—they feel they can’t report these experiences to authorities. There are brothel operators who are very committed to providing fair and good working conditions for sex workers. But what section 19 does, is it makes it very easy for brothel owners who do want to take advantage of migrant sex workers, who don’t want to treat them fairly, it makes it very easy for them do that, because there’s an awareness that migrant workers will not report bad experiences because of that fear of being deported. That’s what I mean when I say it’s created conditions that are actually more conducive to exploitation.

And migrant sex workers presumably feel just as uneasy about reporting bad experiences with clients?
What we know from research internationally is that sex workers typically see that most of their clients are not violent, but there is a proportion of people who are violent. And what that means to migrant sex workers here is that, if they do have a bad experience with a client, it’s very difficult for them to report to Police because they fear Police sharing information with immigration on their status. One that comes to mind is a sex worker who had a client turn up and demand free services and openly said, ‘I know you’re not allowed to work here so you have to do this.’ A migrant sex worker we interviewed talked about clients who treated her differently and assumed that she didn’t have the right to work in New Zealand and would say things like, ‘You have to give me good service’ and use coercive language, inferring that she didn’t have a right to work here therefore she had to do what they say. This is a minority of people, but the legislation has provided a context in which it’s easier for people to behave in these ways without worrying about the consequences.

Where should we go now with regards to this law?
It definitely needs to be amended so that people who have the right to work in New Zealand on temporary visa can do sex work. There’s no logical reason to prohibit it. The New Zealand government also needs to look at providing protection for all migrant sex workers from deportation if they report violence and exploitation. It definitely needs to be amended. I think just living with the fear of deportation is just really harmful—even if they don’t encounter an exploitative employer or an abusive client, just living with that fear constantly is really damaging.

Is this clause a result of the on-going stigmatisation of sex work?
I think that we’ve gotten so much right about sex work in New Zealand in relation to providing protections for sex workers and rights for sex workers. But it’s profoundly discriminatory that there is this clause in the Prostitution Reform Act. Trafficking can and does occur in industries other than sex work, so in agriculture, fisheries, hospitality. And in fact, I would say, we have more documented cases in New Zealand those areas, but there is no law that prohibits temporary migrants from working in those industries.

There is already comprehensive legislation in New Zealand to respond to human trafficking. There is no logical reason to single out sex work and have a specific clause in relation to that—I think that it is definitely very stigmatising, particularly for migrant workers, and specifically for those who are not white and who are not native English speakers, because they are often the people who get targeted.

Trafficking in any industry doesn’t occur simply because that industry exists. There are complex drivers that require complex long-term solutions, so poverty, inequality, deeply entrenched discrimination that limits people’s freedom of movement. To respond to the extreme violence that trafficking represents, what we need to be tackling are these entrenched social conditions, not putting measures in place that criminalise people in those situations.