Legalizing Prostitution: From Illicit Vice to Lawful Business (19 page)

Prior to decriminalization in New Zealand in 2003, operating a brothel was illegal but officially allowed. The law prohibited running a brothel and living off the earnings of prostitution—thus criminalizing brothel owners and managers—but the Massage Parlors Act (1978) effectively allowed indoor commercial sex. Parlor workers were required to register with the authorities, and the police conducted investigations of a parlor if they suspected that other crimes were being committed there, such as drug use, youth involvement, or organized crime.
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The registration requirement pushed some workers into street or escort work, because they were less accessible to officials than in the massage parlors.

On the eve of decriminalization in 2003, the public was evenly divided, with 43 percent in favor and 42 percent opposed to decriminalizing prostitution and the remainder undecided.
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Parliament was evenly divided as well, passing the bill by a slim one-vote margin. (A subsequent attempt to rescind the law failed, however.) Advocates of sex workers participated in a lengthy period of consultation and debate prior to the drafting of the bill. The premier organization, the New Zealand Prostitutes’ Collective, was an active partner throughout the process, which helps to explain why some of the stated goals of the 2003 law focus so heavily on legitimizing sex work and advancing workers’ rights. Arguments in favor of legal reform included harm reduction, the empowerment of workers, and enhanced control over the sex trade. The objectives of the new legislation were to reduce victimization and exploitation, institutionalize a set of labor rights for workers, eliminate the involvement of minors, reduce crimes associated with prostitution, decrease the number of illegal immigrants working in the sex trade, and curb sex trafficking.

Some analysts mistakenly categorize the current New Zealand system as decriminalization rather than legalization. Yet the new law went further than removing criminal penalties and coupled this with a number of new regulations that qualify the system as one of legalization. The 2003 act decriminalized voluntary adult prostitution and permits soliciting, brothels, escort agencies, and third-party involvement. Street prostitution is allowed, subject to local laws pertaining to public nuisances. The new regime provides for periodic inspections of prostitution premises by the police, social services, and the health department. Western Australia replicated many of these norms when its parliament voted to legalize brothel and escort prostitution in April 2008.
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Local regulations vary, with some councils passing bylaws and others doing nothing.
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Advertising is governed by city councils, which may allow or ban signage in their jurisdiction or impose restrictions on the content, according to local standards of “offensiveness” to the public. Some local authorities have passed bylaws that ban signs altogether, while others restrict the content allowed on signs. Local governments are responsible for zoning regulations but may not prohibit prostitution outright.

Most controversial have been councils’ rulings on the location of brothels. First, the legal definition of a brothel includes both large, formal brothels and erotic massage parlors and small, owner-operated services. The latter have argued that they should not be regulated in the same way as larger establishments. Second, some jurisdictions have tried to relegate both types of brothels to a very small part of the district. The city of Christchurch did so, confining brothels to 1 percent of the city (in the central business district) and thereby effectively excluding the small owner-operated brothels that already existed in residential areas. A court challenge in 2005 was resolved in favor of the brothel owners. The ruling stated that the city’s zoning approach was much too restrictive geographically and amounted to a de facto prohibition on small owner-operated brothels. A similar court case in Auckland in 2006 was resolved in favor of the brothel owners as well, but a 2007 challenge to the city of Hamilton’s zoning restriction was decided in favor of the city because the three zones it had established were not so restrictive as to be unlawful.
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Street prostitution exists only in Auckland, Christchurch, and Wellington. Wellington has few street workers (less than 50), and Christchurch has more (around 120, or a quarter of the city’s prostitution), concentrated in a few streets. Only rarely have there been complaints from local residents. In the largest city, Auckland, street prostitution has been a problem only in Manukau, where shop owners complain about used condoms and syringes and claim that the number of street-based workers has grown since decriminalization in 2003.
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In 2005, the Manukau City Council asked its local member of Parliament to present a bill prohibiting street prostitution in Manukau in response to the large number of street prostitutes in the area. The bill was defeated (73 to 46).
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Had it passed, it would have signaled a major amendment to the 2003 law (by banning street prostitution), and its failure suggests that parliamentary support for the law has strengthened since 2003, when the original law passed with a thin one-vote margin. There have been no recent public opinion polls, so the level of current public support for the law is unknown. Yet prostitution was not an issue during the 2008 general
election, and there was “a sense across the political divide that public and political support had cemented in favor of the law reform, with the only active debate being around street prostitution,”
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which continues to be contentious in Manukau. As is the case in other settings, street prostitution in New Zealand is associated with greater harms (drug use, risky sex practices, violence) than indoor prostitution is, although violence appears to have decreased since decriminalization.
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Much like other businesses, prostitution is now governed by employment and health and safety standards. Workers have the right to refuse requests for sexual services, workers and customers are obliged to practice safe sex, and they (and employers) can be charged with an offense if they engage in unsafe sex, which is enforced by the Health Department. Employment disputes can be referred to the Labor Inspectorate. Since 2003, police practice has become increasingly protective of workers and managers. The previous system whereby sex workers were registered (under the 1978 Massage Parlors Act) has been replaced with certification of brothels that employ three or more workers, shifting the licensing from workers to business owners. The certification requirement has not led to a two-tiered system of legal and illegal sex venues,
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largely because it is not as onerous or costly as licensing is in some other places. In New Zealand, interviews with brothel owners found that “certificates were not seen to be difficult to obtain, and neither were they considered expensive (at $200). In addition, compliance appeared to informants to be good.”
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Moreover, inspections of sex premises by the authorities have been welcomed, not resisted: “Brothel owners were often keen to show [investigators] around their premises and discuss management issues they were facing. It seemed that they were keen to be seen to be acting professionally, as any other business in the community.”
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The act established a Prostitution Law Review Committee (PLRC) composed of current and former government officials, sex worker representatives, and members of various nongovernmental organizations. The PLRC conducts research and sponsors external reviews of the implementation and impact of the law.
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A major evaluation in 2008 indicated that the number of prostitutes has remained about the same as prior to legalization and that there has been no increase in the number of underage workers. In addition, more than 90 percent of prostitutes (survey N = 772) were aware that they had legal and employment rights under the new law; two-thirds felt that the law gave them more leverage to refuse a client or his requests; and a majority (57 percent) felt that police attitudes had changed for the better since passage of the law.
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Employment conditions remained inadequate, and workers
remained somewhat distrustful of the authorities. Moreover, decriminalization seems to have done little to counter the “deeply ingrained moral and social stigma attached to working in the sex industry,”
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through a nationwide poll in 2004 showed that only 25 percent of New Zealanders took the view that prostitution can “never be justified,” somewhat fewer than the number who held this view prior to legalization (29 percent in 1998).
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Overall, the PLRC concluded that legalization had achieved many of its objectives and that the majority of individuals involved in the sex industry were better off now than under the prior system.

The cases discussed in this chapter, in addition to what we know from other settings, point to some important challenges facing legal prostitution regimes and the various stakeholders involved. The following problems seem to be fairly common:

• Stigma and claims that prostitution is “immoral” do not magically disappear postlegalization. This affects the degree to which workers feel empowered to assert their rights to managers, clients, and government officials. Because they seek to maintain a low profile, workers may also be reluctant to report abuses to the police or other authorities.

• Public support for decriminalization or legalization is fickle. People may consider some sort of toleration preferable to criminalization
in the abstract
but can become disenchanted with actually existing legal systems (due, in part, to the dynamic sketched in the next bulleted item).

• In the aftermath of legal reform, it is common for there to be at least some opposition to the new order, from forces pressing for additional restrictions or seeking to recriminalize prostitution outright. Such resistance comes from politicians, pundits, religious leaders, antiprostitution groups, and others who oppose prostitution in principle or who react to sensationalized media coverage of a particular event or exposés of larger problems.

• Legalization creates parallel universes of legal and illegal sex work,
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as there will always be some categories of workers who are not eligible under the legal system (minors, illegal immigrants, and perhaps those infected with STDs). And some of those workers and business owners who
are
eligible may prefer to operate in the shadows of the legal sector, due to concerns over taxation, licensing and registration, mandatory health requirements, and other “burdens.” In other words, legalization cannot fully resolve the problem of illegal
prostitution, although it is intended to reduce it. New Zealand may be an exception: the inclusiveness of its legal order reduces the incentive to operate illegally.

• The owners of legal sex businesses often have difficulty adjusting to new legal strictures, particularly in the immediate aftermath of legalization. This is a natural consequence of the transition from illicit vice to lawful business. Business owners enjoyed great freedom when they operated outside the legal system and may put up stiff resistance to the imposition of some or many of the new requirements.

• Government officials face unique challenges in managing what was previously an illegal vice. A good example is the governance of medical marijuana in the 15 American states that now permit use of this drug for eligible persons, where state authorities have faced myriad, unanticipated problems. Similarly, a newly legal sex industry is likely to present challenges to officials tasked with implementing regulations, gathering needed information, and enforcing the rules—especially during the formative years immediately following legalization. Some officials have great difficulty adjusting to the new order, continuing to view sex workers and business owners as deviant actors and treating them disrespectfully and harshly, while other officials more readily take on a professional orientation, treating actors similarly to those involved in any other lawful business.

The degree to which each of these factors is a problem varies from place to place—serious and protracted in some, much less so in others. The remainder of the book examines these and other challenges in three European cases.

Three Red-Light Cities

The previous chapter outlined a number of challenges facing governments that legalize vice and particularly prostitution. This chapter and the next pursue this question in much more depth through an examination of three European cities—Antwerp, Frankfurt, and Amsterdam. To provide contextual background, I examine, first, the main features of the Belgian, German, and Dutch systems. We will see that national context is important but not determinative of local-level commercial sex policies and arrangements. I then examine, in detail, how legal prostitution manifests itself on the ground in each city, drawing on my ethnographic data and other sources.

The material presented in
chapters 5
and
6
draws on my field observations and interviews. I conducted countless hours of observations in the three cities: mapping the configuration of businesses in each red-light district, recording the behavior of people on the street, and sketching observed interactions between local sex workers and visitors. I conducted interviews with key players, including government officials, brothel and window owners, and sex worker advocates.
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These data were supplemented with conversations with sex workers—most brief, others longer. The data are more extensive for Amsterdam and Frankfurt than for Antwerp, largely because Antwerp’s red-light district is small, fairly isolated, and single purpose, whereas the other two are major sex-for-sale emporiums, making them more challenging study sites requiring a considerable time investment. I have studied Amsterdam at intervals stretching over a fairly long period of time (beginning in 1997), whereas Antwerp and Frankfurt were visited less frequently and more recently. My ethnographic data on these cases are by no means exhaustive and are presented in conjunction with information from other sources, including public opinion polls, newspaper reports, scholarly articles, government documents, secondary surveys, and clients’ online discussion boards. I conducted a comprehensive review of hundreds of online client postings for the three cities on the World Sex Guide (operating in the mid-1990s), The Erotic Review, Ignatzmice, and Punternet.