For various reasons we never got round to submitting the following information to the Guardian’s Readers Editor at the time this op-ed was published; but rather than waste the time APNSW and NZPC spent checking sources we share it here for the record, and in the hope that fact-checkers of the future may also read it.
On the 13 July 2016, the Guardian published an op-ed (an ‘opinion’ or ‘opposite’ editorial) in their “Comment is Free” section titled “Decriminalising the sex trade will not protect its workers from abuse.”
The op-ed does not attempt to argue that the decriminalisation models which have greatly improved legal protections for sex workers in New Zealand (and New South Wales, Australia) cannot be adapted and adopted elsewhere. Instead, it attempts to deny that decriminalisation in New Zealand has been successful in protecting sex workers. This conclusion, reached on the basis of two interviewed sources and a number of false or misleading statements, is completely at odds with the independent evaluation of the law involving interviews with over 700 sex workers. 
Op-eds are supposed to express strong and at times controversial opinions. However, among ethical and professional journalism outlets, even op-ed pieces are expected to be accurate with respect to facts. (“Comment is free, facts are sacred” says the full quotation from which the Guardian’s opinion pages take their name.)
And the UK press complaints commission guidelines state, “The Press must take care not to publish inaccurate, misleading or distorted information.”
The following eight points are substantively inaccurate or misleading, and could easily have been discovered by fact-checkers using the public internet and a couple of email or phone calls to NZPC.
1. “Under this legislation [Nordic model], buying or attempting to buy sex is criminalised, and the selling of sex is totally decriminalised”
Fact check: FALSE
In Sweden, the origin of the so-called “Nordic” model, the selling of sex is only decriminalised in the sex buyers law, not anywhere else. In practice, a whole range of other laws and police actions harass and discriminate against sex workers, whose lives and livelihoods are far from decriminalised.
For the selling of sex to be totally decriminalised, the selling of sex needs to be able to legally occur somewhere – in a space or place of some kind, either public or private.
Sex in public spaces may not be illegal in Sweden, provided the activity is hidden from view. However, such a hidden public space (usually remote and outdoor) is unlikely to be a safe space for sex workers to work.
In private spaces, on the other hand, it is illegal in Sweden to provide premises for sex work to take place. Police will prosecute a landlord if they do not evict occupants after becoming aware that sex work is taking place on the premises. And the Swedish police have been documented reporting the existence of sex work to landlords, therefore forcing the eviction of sex workers from their homes. Swedish police also report sex workers to hotels and other venues “providing premises.”
In Norway, similar laws were used to systematically evict sex workers from their homes and work venues in a police operation incredulously titled “Operation Homeless.”
Sex workers working together for safety in Sweden can be charged with “pimping” one another under a law that predates the sex buyers law. And sex workers’ partners and children can be prosecuted for receiving income from sex work.
Migrant sex workers cannot get a visa or work permit to do sex work, so cannot legally sell sex, and are routinely deported.
The continued criminalization of sex workers even affects non sex workers. A venue that refused entry to “Asian looking women” on the basis that they were assumed to be sex workers, was cleared of wrongdoing in the resulting court case. The court ruled the venue owners had a “legitimate reason” to refuse access.
Sex workers in Sweden report losing custody of their children, with their sex work being cited as the reason for such interventions. In one tragic case, this led to children of a sex worker known as Petite Jasmine being placed with an ex-partner who was a man with a recorded history of violent abuse. The man stabbed Petite Jasmine to death during an unsupervised visit.
Sex workers, therefore, remain very much the focus of law enforcement, and continue in practice to be criminalized and marginalized. To state that selling sex is “totally decriminalized” is not true.
(In September 2016, the Irish news outlet “The Journal” reached a similar conclusion in relation to proposed legislation reform in the Republic of Ireland – “FactCheck: Would a new government bill really decriminalise sex workers?”)
2. “sex worker and activist Laura Lee has put forward arguments that prostitution is labour, and that the only harm to those involved comes from feminists and police officers.”
Fact check: FALSE
Laura Lee has also written and spoken regularly about harms caused by a minority of clients; how sex workers cannot report these and other acts of violence to police; and how abusive men even take advantage of that fact. (See here, and here. She also wrote: this letter.) In fact the very article linked to in the op-ed (by either the author or a Guardian editor – we do not know which) recounts her own disturbing experience with a threatening client. The article also highlights the dangers the new laws in Northern Ireland have created for sex workers including being unable to screen clients, or warn other sex workers about ‘ugly mugs’.
Ms. Lee, a law graduate, is also in the process of challenging the criminalisation of the purchase of sex in the Northern Irish courts, with a view to challenging it eventually in the European Court of Human Rights.
3. “A New Zealand government-funded report from 2007 found that post-decriminalisation, brothel managers often pressure workers to provide “extra services” without condoms”
Fact check: FALSE and/or MISLEADING.
Submission guidelines for “Comment Is Free” request contributors to include links in the text to back up the arguments presented. No link is provided to the referenced “government-funded” report, and the given statement does not appear in any of five reports from that year.
According to NZPC: “While some clients certainly do try to have “extra services” “without condoms”, Abel, Fitzgerald and Brunton (2007, p13) report that “Most survey participants reported telling clients that it was the law that they had to use condoms, and over half reported refusing to do the job if the client persisted”. Please note, the quote [the author] uses, does not appear in any of the five reports from 2007, nor the Prostitution Law Review Committee report of 2008.”
In one case, in 2014, a brothel manager did treat a sex worker staff member inappropriately. The case did not relate to condom use, but included the operator making sexualised comments to a sex worker working in the venue. A successful sexual harassment case was brought against the operator, and the sex worker was awarded substantial damages. The successful pursuit of this case was only possible due to the decriminalisation of sex work in New Zealand.
According to testimony given by NZPC during this trial, based on regular feedback from a large number of sex workers around the country, the behaviour of the operator in this case was not typical of the industry.
4. “Sabrinna Valisce, … was an on-off volunteer for the New Zealand Prostitute Collective (NZPC) for 25 years”
Fact check: FALSE
According to NZPC: “[Ms. Valisce] was a volunteer, for a few hours a week in the mid 1990s, and again roughly around 2009 for a couple of days with our branch in Wellington.”
However you do the maths (even counting 1991 right through till 2009 is still a maximum of 18 years), and however you interpret the phrase “on-off” (mostly off, would be more accurate), the statement is still incorrect.
5. “Since the change in the law, brothel owners, not the women, set prices for services, and customers demand kissing and unsafe practices, because they had become emboldened, according to Valisce.”
Fact check: FALSE / MISLEADING / FALSE
Although attributed to Ms. Valisce, these statements are presented as facts supporting the author’s argument, rather than as additional opinion.
The issue of clients requesting unsafe practices is addressed in point 3 above: sex workers in New Zealand report being in a stronger negotiating position with clients after decriminalisation, not the other way around. (Based on the views of over 700 sex workers interviewed as follow up to the legislation changes.)
Regarding the setting of prices, the following statement from NZPC gives a more complete picture, which includes the active role of sex workers in “all-inclusive” prices:
“The change in ability to negotiate directly with the client happened when payment by credit card became more common in the 1990s, not after decriminalisation. As more and more clients paid by credit card over the old zip-zap machines, more and more sex workers were asking operators to allow them to include their fee on the credit card as well.
“All-inclusive” prices came in way before decriminalisation. In fact, [Ms. Valisce] should know this, because if she had been a volunteer for us for 20 years (though [the author] now claims 25 years) she should be aware of the court case in respect to tax law on proving that sex worker’s earnings were independent, despite the “all-inclusive fee”. This court case was heard between 1997 and 1999 in Christchurch, where indeed she was a volunteer, for a few hours a week in the mid 1990s, and again roughly around 2009 for a couple of days with our branch in Wellington.”
In that Taxation Review Authority case the judge, referring to matters from 1994, said (emphasis added):
- 19. There was no dispute that the partnership has produced a list of services in a series of leaflets referred to as “menus” some of which were exhibited to me. These menus state the services available at the parlour under the letterhead name of the parlour, list the prices, and state “all prices inclusive”. … The effect of the evidence regarding the expression in the menus “all prices inclusive” seemed to be that this was to indicate to a customer that there was no further charge (other than by negotiation for “extras”) such as a door charge or venue charge… ”
Similarly, at paragraph 24 of the judgement, the judge said:
- Some aspects were clarified in cross-examination of one of the partners. “All prices inclusive” does mean inclusive of any sexual service. The services are GST inclusive where applicable so that if a lady exceeded the GST threshold, she would have to pay one ninth of her fee as GST. She could not pass that on to the client.
This indicates that all inclusive prices, with brothel operators setting prices, were already in use in 1994, nine years before decriminalisation, at least nine years before Valisce claims they began.
6. “Decriminalisation also led to an increase in people working in the sex trade, due to increased demand …”
Fact check: FALSE
There is no evidence of the numbers increasing, in fact the numbers of street based sex workers have dropped significantly in Auckland and Wellington. This can easily be seen by comparing the figures from the first estimation completed by the Prostitution Law Review Committee published in 2005 , and their later report published in 2008.
7. “aside from 12 that were conducted in 2003 in the first few weeks of the new legislation, only 11 inspections [by health officials] occurred across the whole of New Zealand until January 2015.”
Fact check: MISLEADING.
The implication of the above statement (assuming the figures, which we have not had time to verify, are correct) is that sex industry venues are unchecked and therefore somehow out of control – especially in light of the statements that follow relating to reduced police “powers” of access.
According to NZPC, on the other hand: “Sex workers are not monitored by Medical Officers of Health. Rather, they are able to seek their support as appropriate. Medical Officers of Health prefer to build productive relationships with sex workers and brothels.”
In other words, if there were any issues that sex workers wanted addressed in a venue, support of health officials is just a phone call away. Without additional evidence to support the argument that an absence of inspections is itself causing harm, (such as a pattern of venue related problems, or issues raised by venue-based sex workers not being addressed by health officials) the statement is misleading.
8. “Police powers have been reduced under decriminalisation. Police are now forbidden to enter brothels if they receive intelligence that underage girls or trafficked women are being held, as they could be accused of harassment by brothel owners.”
Fact check: FALSE.
This is an astonishing statement, and it is extraordinary that Guardian fact-checkers did not pick it up.
Regarding entry to brothels, the Prostitution Reform Act 2003 as it stands now is clear. It states:
“30 Warrant for Police to enter
- An issuing officer (within the meaning of section 3 of the Search and Surveillance Act 2012) may issue a warrant to enter a place if he or she is satisfied that—
- there is good cause to suspect that an offence under either of the following provisions is being, has been, or is likely to be committed in the place:
- section 23 (which concerns using persons under 18 years in prostitution):
- section 34 (which concerns being an operator while not holding a certificate); and
- there are reasonable grounds to believe that it is necessary for a constable to enter the place for the purpose of preventing the commission or repetition of that offence or investigating that offence.
- The provisions of Part 4 of the Search and Surveillance Act 2012 apply as if a warrant referred to in subsection (1) were a search warrant.“
In general, Police are required to have a warrant to enter a brothel just as they would to enter any other business or a person’s private home.
However, the Police also have the power to search without a warrant if they have reason to believe that in doing so:
- they will prevent the commission of an offence;
- or prevent injury to any person (s14 Search and Surveillance Act 2012);
- or if they need evidence relating to a serious offence – such as rape (s15 Search and Surveillance Act 2012);
- or if they have reason to believe that a person is in breach of the Arms Act 1983 (s18);
- or if they believe a serious drug offence is taking place (s20),
- or if they are concerned an espionage-type offence is being committed (s25);
- or to arrest a person unlawfully at large (s7).
It is a very important fact that the Police role changed after decriminalisation. Previously the police used entrapment and undercover work to enforce laws on soliciting and “living on the earnings of prostitution.” Sex workers were prosecuted and harmed by the old laws and how they were enforced. The Prostitution Reform Act (PRA) removed sex work from criminal legal frameworks, and recognised sex work as work , subject to health and safety legislation.
Nothing about the decriminalisation in the New Zealand model inhibits the role of the police and their power to enforce the law and protect sex workers who may be underage or trafficked, as is implied in the statement above.
In the words of NZPC:
“Decriminalisation has transformed relationships with the police in New Zealand. To imply the New Zealand police must sit on their hands and allow crime to occur in relation to sex work is not just blatantly false, it is insulting to New Zealand.”
This blog post is part of a global series of blog posts to mark International Day to End Violence Against Sex Workers, 2016. Read the full series at bit.ly/AllinDecrim, or follow the hashtags #dec17 #IDEVASW on Twitter
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