Weed is finally legal and readily available. Why not prostitution?

Great Debates
81

…these are assertions.

Which “high end places” are you talking about, in which countries, following what laws?

What places are employing underaged people, illegal immigrants? Did the laws in those places allow for that?

“Some 20 year old thug, prostituting out his runaway 14 year old “girlfriend”, is not eligible and can’t be regulated in any meaningful sense” absolutely would be breaking the law in decriminalised New Zealand . It is regulated. In a very meaningful sense. And the fact that “we don’t share borders with any other nation” has absolutely nothing to do with it.

And “the total amount of prostitution expanding by about double” doesn’t mean anything if you don’t tell me where it is you are talking about. Because for starters the data here is extremely suspect, especially comparison data between Scandinavian countries that I know you have relied on in the past. But secondly, reducing sex work isn’t one of the goals of decriminalisation. It’s a harm-reduction model. It doesn’t apply a moral judgement on sex workers and those who use their services. Sex trafficking remains illegal. Underage sex work is still not allowed. The harmful illegal things that actually hurt people are still illegal.

All you’ve done is assert stuff. Your analogy doesn’t hold. Because ultimately what we are talking about here are consenting adults having safe sex in exchange for money.

82

Wait — do NZ sex workers have an exemption from the equality legislation that applies to businesses generally, requiring them to provide goods/services on a nondiscriminatory basis?

83

…can you be precise on what New Zealand equality legislation you are talking about here?

Because consent would trump that every single time. You cannot compel anyone to have sex.

84

Well, Human Rights Act 1993 s. 44 makes it unlawful for anyone who supplies services to the public or any section of the public to refuse service to any person, or provides services on different terms, on any of the prohibited grounds of discrimination. So, e.g. a hairdresser cannot refuse to provide a haircut to a customer on the grounds that the customer is black.

Sections 45 to 52 set out various exceptions — e.g. an insurer can quote different rates based on someone’s age or sex where this is objectively justified by actuarial or statistical data; s. 48 — but I don’t see any exception to cover sex workers or sex work.

I get that having sex with sex worker without their consent would be rape, obviously. By the same argument if I refuse to supply goods to you and you take them anyway, that’s theft. But it doesn’t follow that a sex worker or a shopkeeper refusing to provide services to a black customer would not be infringing s. 44.

85

https://www.legislation.govt.nz/act/public/2003/0028/latest/whole.html#DLM197815

The right to consent is explicit here. They cannot be compelled to have sex. They might have grounds to take action on other grounds. They would of course be entitled to a refund. But I don’t recall a single case of this happening since the law reforms.

I’m not quite sure you do. Because you then go on to say:

If I refuse to supply goods to someone, and if I provide a refund, but you still take it away, then yes, that’s theft.

If a sex worker refuses to have sex with you for whatever reason, promise to give you a refund once you have left the premises and they feel safe, but you ignore this and have sex with them anyway, thats rape. Even if the reason they refused to have sex with you was because you are Black.

This may or may not be the case. But a sex worker doesn’t have to give a reason why they have refused a client. They can refuse a client for any reason. Or for no reason.

This isn’t a “gotcha.” There is a reason why the voices of sex workers need to be prioritised. Because this is the type of argument that easily gains traction in an internet debate, but in the real world it just doesn’t happen. Not to any degree that it matters.

86

Oh, no argument here that the US as an entity definitely has some weird cognitive and psychological issues about the concept of “liberty” as a societal ideal. Some pretty severe cases of not walking the walk, there.

87

You misunderstand me, Banquet_Bear. I’m just trying to fight my own ignorance here. I understand the policy argument as to why a sex worker should have the right to refuse service for any reason or none. I’m just exploring whether they do in fact have that right. Is it effectively assured to them by the law? And, I cheerfully admit, I am taking advantage of your superior knowledge in this area to assist me in my fight.

The provision you quote from the Prostitution Reform Act deals with the situation in which a sex worker has already contracted to provide services, but then refuses. It protects them from legal action compelling them to perform the contract. But if a sex worker refuses to form a contract in the first place (on one of the prohibited grounds) that seems to be unlawful under the Human Rights Act s. 44, and Prostitution Reform Act s. 17 doesn’t seem to address that.

Furthermore under Prostitution Reform Act s. 17, if the sex worker declines to perform the contract the customer still has the usual remedies for breach of contract — can’t enforce the contract but can, e.g., recover damages. The analogous treatment with respect to HR Act s. 44 would be that if the sex worker refuses to contract in the first place (on one of the prohibited grounds) the customer can’t force them to contract, but can avail of other remedies for unlawful refusal of service. Is there any possibility that that is, in fact, the legal position? Because, if it is, that doesn’t strike me as a very satisfactory position from a sex worker’s point of view.

You make the point that a sex worker doesn’t have to give a reason for refusing service. But that’s true of all businesses. And very few will ever say, in as many words, “I am turning away your custom because you are black”. But that doesn’t stop claimants using, and successfully using, other evidence to suggest that custom was, in fact, turned away on one of the prohibited grounds. So I don’t think the right not to give a reason will adequately protect sex workers.

I’m not just being a smart-arse. You’d like to think that refusal of service on the basis of race would be rare, but refusal of service on the basis of gender — which is also a prohibited ground — would I think be common; I imagine most sex workers would have firm boundaries around this. For that reason alone there clearly needs to be some exemption for sex workers from the application of HR Act s. 44, but as far as I can see PR Act s. 17 is not that exemption (or, if it is, it isn’t wide enough).

The wider context here is that, as I understand it, sex work in NZ is not subject to any regulation that is specific to sex work, but anybody engaged in a sex work business will be subject to regulations that affect businesses generally - tax, health and safety, consumer rights, etc. And HR Act s. 44 is a regulatory provision that affects businesses generally.

88

…it isn’t about that at all.

You’ve quoted all the relevant legislation. So what would happen what you suggested were to happen? It would get tested in court. That’s kinda just how it works. And if it happens to work in a way that has negative impact on the harm-reduction model, then that will be something for the government in power to address.

But what I said earlier, that “the sex worker has the absolutely right to refuse services to anyone at any time, even if working in a brothel, for no reason”, still stands.

89

Yeah, I understand the claim you’re making. And it seems plausible that that would be the position. I’m just looking for a solid legal basis for affirming that that is the position.

You say that I’ve quote all the relevant legislation, but I’m not convinced that I have. Because, if that is all the relevant legislation, there looks to be to be a gap that needs addressing if the factual position is to be as you would wish it to be.

90

…there is no gap.

The law states that the sex worker has the absolutely right to refuse services to anyone at any time, even if working in a brothel, for no reason.

You cannot compel someone to have sex.

You cannot have sex with someone without their consent.

This is explicit. Forget about sex worker legislation. This applies to everyone.

You can’t contract out of consent.

You would be entitled to a refund. You may be able to take other action, if the evidence was compelling and well documented. But “the sex worker has the absolutely right to refuse services to anyone at any time, even if working in a brothel, for no reason”, is a factual position.

Can you give me an example of what you imagine a scenario would be where a sex worker has the absolutely no right to refuse services to anyone at any time, even if working in a brothel?

91

Indeed. A contract that violates fundamental rights is unenforceable.

And : even if we go the decriminalization route as properly defined ( * ) , this is a case in which the nature of the service makes it inherently different from other public accommodations . Having it decriminalized does not make it just-like baking a cake or serving a drink or arranging flowers.

(* I’d always understood that having a law banning something be in the books but merely be ignored or deemed unenforceable or having the authorities look the other way is not by itself decriminalizing or legalizing: you decriminalize by repealing the law that says “Doing X is a Class (whatever) Nth-degree felony/misdemeanor to be penalized with (specified restriction of freedom/fines/both)”, so that there is no longer a need to ignore or look the other way from)

92

I think this might be the talking-past-each-other bit.

Let’s say I have another business. I’m a tour guide in Auckland. One day a guy shows up for my tour, and I say, “Ooh, I didn’t realize you were a Catholic, I hate Catholics, no tour for you.”

This guy cannot compel me to take him on a tour. He cannot go on a tour with me without my consent. He might be entitled to a refund. He might be able to take other action, if the evidence was compelling and well documented.

Is this all true?

Obviously my job as a tour guide is different from the job of a sex worker. The question is, are my legal rights significantly different?

93

…the relevant laws have all been cited here. But the definitive answer would be provided if a case ever made it to court. My reading of it are that your rights would be the same. However I never claimed that it wasn’t. Because all I said was a “sex worker has the absolutely right to refuse services to anyone at any time, even if working in a brothel, for no reason.”

94

“The absolute right” is a little ambiguous. AIUI, you mean, “and no shitheel better force her to have sex either.” But as others (including myself) read it, it means, “And there’s no legal remedy for those whom she refuses services.”

I’m pretty sure you didn’t mean the second meaning, but only after your clarification. There’s definitely an interesting question whether it should mean that, given the unique status of sex in human psychology.

95

…no it isn’t.

There is no scenario where a sex worker can be compelled to have sex with their client if they do not consent. They have the absolute right to say no. There is nothing that could compel them to have sex. You cannot contract out of consent.

I’ve literally quoted the law. Which says “However, nothing in this section affects a right (if any) to rescind or cancel, or to recover damages for, a contract for the provision of commercial sexual services that is not performed.”

If I had intended to say “And there’s no legal remedy for those whom she refuses services” then that is what I would have said. But I didn’t say that.

I meant what I said.

96

coolcoolcool!

97

…the thing about our framework is that its very simple to understand.

Its based on a harm reduction model. Which means it doesn’t include things like mandatory registration or health tests, because these things are more likely to cause harm (because sex workers won’t register and won’t submit to tests that get recorded to a database).

It makes the right to refuse explicit. Because that right already exists. But just to avoid all doubt (and countless internet arguments) its also made clear in the 2003 reforms.

Consenting adults already have the right to have sex. What the legislation does is allow consenting adults to have sex in exchange for money. It puts some firm rules in place, for example the requirement to have safe sex, and the rules that are in place for brothels.

But that’s about it.

What that means is that sex workers are encouraged to report cases of abuse, sexual assault, and worse, because they will be treated seriously when they go to the police. It means they are entitled to all of the other protections that employees and the self-employed are entitled to here.

It also means they would need to be in compliance with all the other laws that any other legal business has to follow. That includes taxes, and the privacy act, human rights legislation, and accident compensation. And if they breach those laws then being a sex worker isn’t going to protect them.

Because heres the salient point for me: globally, almost universally, sex workers are treated like shit. Do a youtube video search for “prostitution sting” and look how they treat sex workers like animals. Or watch the Cops episode “Las Vegas Prostitution Special Edition”. In the one place in America where sex work is legal sex worker have no agency, and are forced to work for a handful of brothel keepers who parade them in front of potential clients like cattle.

Sex workers are a diverse group. But they are often marginalised groups. The National Center for Transgender Equality reported that their 2015 survey suggested that “Roughly 13 percent of the transgender community reports having participated in the sex industry.” The 2005 NZ review into the reforms estimated that 80% of street sex workers were Māori or Polynesian.

These are already marginalised workers. These are workers that are constantly in danger, that are fearful of the authorities and the police, regularly get beaten up or assaulted and have nowhere and no one to go to.

The reason we changed our laws was because of :: waves hands :: ALL of this. The law has been in place for 20 years and has held up well. It doesn’t account for every potential issue. But that’s typical of all legislation. If a human rights case were to eventuate, then we will see what happens in court. But there won’t be a case that will remove the right to consent. That simply is not going to happen.

98

Right. I’m wondering if there should be any carve-out for anti-discrimination laws for sex workers, given the nature of human sexuality.

A cake-maker can feel compelled, and rightfully so, to bake a cake for a customer when he doesn’t want to, if his reasons for not wanting to do so are due to illegal discrimination. The customer can’t force him at gunpoint to bake a cake–but the customer can take him to court and stand a decent chance of winning. Knowing that, a baker might bake a cake for a customer when he doesn’t wanna. I’m cool with that.

But under analogous circumstances, I’m not cool with a sex worker having sex because she fears court action.

99

…for a human rights case to proceed here in NZ, you first need to make a complaint to the Human Rights Commission, and if you are successful you would get awarded compensatory damages for losses suffered, injury to feelings, humiliation and loss of dignity.

There is a high threshold to meet here, and if the case actually made it to the Review Tribunal and it won, then the reality is that whatever it was that the sex worker did, it would have had to have been pretty freaking bad, well documented, and have caused genuine harm.

IMHO there shouldn’t be a carve out for that.

Also, IMHO, considering the nature of the marginalised peoples that tend to gravitate towards sex work, it would be unlikely they would ever do something that is that freaking bad.

The courts are also very quick to pick up if a client is bringing a case in bad faith. For example:

100

Mmm.

If you tell me that I have an absolute right to do X, and I do X, and as a result suffer a detriment like having to pay damages, or having my professional accreditation impaired, I’m gonna say you advised me badly. If I have an absolute right to do X, I can’t be penalised for doing X. If I’m penalised for doing X, then I don’t have an absolute right to do X.

If the correct position is that a sex worker business is as free to reject custom as any other business, isn’t that what you should say?

But, as I say, I’m sceptical that that is the position, or that we have in fact tracked down all the relevant legislation. It seems outrageous that a sex worker might be penalised for offering services to men but not to women, or vice versa. There surely must be an exception to HRA s. 44 for sex workers. But, until we track it down, we don’t know the scope, the limits, of that exception, and assuring people that sex workers have an absolute right to refuse service isn’t helpful.

(And if, contrary to expectations, there is no exception, then isn’t lobbying for one a fairly urgent priority in the interests of sex workers? And, again, asserting that they have an absolute right to refuse service conceals the need for proper legal reinforcement.)