Heralded as an approach with revolutionary difference to German and Swiss style legalization, decriminalization as pioneered in 2003 in New Zealand has long been held up as a viable alternative, but what does it mean in regards to the paid rape of children?
The 2008 New Zealand government review of the Prostitution Reform Act (PRA) is often cited as evidence that fears about increased trafficking of adults and children have not come true. Unfortunately, this very document raises significant doubts around the current handling of exploited children in the Kiwi sex trade, furthered by the “harm reduction” and “minimized police presence” policy which decriminalization advocates support . The relevant paragraphs dealing with children are worth analyzing in detail:
Even though the review states that it does not consider sexually exploited children to be “sex workers” (p. 99), it later refers to them as “underage workers” (p. 109) and at a closer look one finds that in earlier parts of the same report, the committee blatantly refers to sexually exploited children as “sex workers” (p. 81ff). The report also is comfortable with describing the paid rape of a minor as “persons under 18 providing commercial sexual services” (p. 99ff). Finally, the term used for the pedocriminals in question is “clients” (p. 109), which is precisely the same language that is used for men who buy adults and linguistically lets the paying child rapists off the hook. Instead of using a different harm emphasizing terminology for child prostitution, the committee has made a conscious choice to use ambivalent obscuring language, highly similar to its discussions of adult prostitution, leading the reader to wonder if the significance of the crime is understood as such or if the committee believes money makes a child abuse case less severe – as it does with adults. At the very least a decision has been made here to prioritize not associating “exploitation” and “rape” with prostitution over linguistically emphasizing the severity of the crime at hand.
On page 101 the report admits that data gathering on exploited children was difficult prior to decriminalization, but that post decriminalization said gathering has become even more difficult as police are forced to take a distanced approach to the industry without any systematic efforts to collect data. Surveys by support agencies for prostituted persons differ in their views on whether an increase of exploited youth has taken place – on page 102 the report concludes that there hasn’t been. Nonetheless the 2012 U.S. State Department’s “Trafficking in Persons Report” calls out New Zealand for lax laws regarding human trafficking and warns about domestic sexual exploitation of children (p. 265) – especially of indigenous descent.
Whether the number of children has increased or not, sentences for offenders in cases of sexual exploitation of minors remain lenient: Even though the PRA extended the maximum punishment of a paying child rapist from 5 years to 7 the highest sentence given has been only 2 years for paying to rape a child or profiting off of said crime. The majority of sentences 2003-2008 were mere fines, supervision, community work or home detention (p. 107ff).
Especially concerning is the information around identifying a perpetrator as well as a victim of paid child sexual abuse in the first place due to unique barriers resulting from PRA provisions officially said to ensure prostituted adults’ anonymity and safety from police harassment & violence:
“Police officers may request, but have no powers to require, age identification documentation from a person they suspect to be an underage person providing commercial sexual services. Police reported that this makes it difficult to proactively protect young people who are involved, or at risk of being involved, in underage prostitution.” […] “Police report difficulties bringing prosecutions relating to the use of under age people in prostitution.” (p. 109)
For non-Kiwi readers it should be stated that there is generally no law in New Zealand that requires citizens to show ID when stopped by police, unless there is a warrant for their arrest. P. 92 also informs us that police may not enter brothels without a warrant, if they suspect the presence of exploited children (although they may enter without a warrant to check an establishment’s liquor license). Born from understandable concerns of police harassment and violence against adult women in prostitution, several barriers have been set up to minimize contact between people in prostitution and law enforcement to decrease opportunities for abuse of power – however these also constitute barriers to rescuing exploited children (and adults as well).
As many critics have pointed out the PRA closes avenues for police violence, but not for control and abuse by pimps and brothel owners. This becomes very clear in the following paragraphs:
“Police also reported investigation into suspected employment of under age workers in brothels or small owner-operated brothels has been more limited since the enactment of the PRA. This is because: Police now have no right of entry into brothels or other premises [without a warrant]; brothel owners are not required to maintain a record of the age identification of sex workers or provide it to Police.” (p. 109)
The PRA officials designates health inspectors to monitor working conditions at brothels to see if they comply with occupational safety and health standards (although consistent condom use is about the most difficult work place requirement to reliably control…). But it is not their jurisdiction to verify that all people prostituted at a given brothel are adult, nor could they if they wanted to since no records exist of who is employed and where. Additionally there have only been 23 brothel inspections between 2003-2015 (p. 3), meaning that even if equipped with additional powers to identify victims of exploitation, numerically these inspections couldn’t possibly have covered enough ground.
Let it also be mentioned that all licensed brothels and strip clubs in New Zealand pay tax, meaning that when pimps are making money via child exploitation in said establishments (some exemplary cases of child abuse in Kiwi brothels listed here on p. 4) some of the profits are going towards the government (also true of the cases of children being sold in legal licensed German brothels).
Even though the severe economic desperation of women in prostitution is evidenced in the very study that informed the PRA (p. 68), the decriminalization model does not consider poverty as coercive enough to constitute “forced prostitution”. In its assesment the conditions for “forced work” are only met, when there is direct self-reported pimp control (p. 68) – ignoring the many ways in which pimp control can be subtle or by which pimps make their victims not recognize the coerciveness of their situation.
The decriminalization model thus is able to operate on the assumption that the majority of persons in the sex trade are consenting adults and that anyone not adult, not consenting or in any way violated in their human rights can turn to support services or law enforcement by their own volition – or as the following passages state – victims rely on someone else informing law enforcement about them, operating on the assumption that johns are reliable allies in the fight against sexual exploitation, when any basic research into how johns respond to the presence of minors or exploited adults reveals numerous johns feel no responsibility towards victims (p. 230-233, second source p. 15ff, third source p. 24). The key problems with waiting for a child to cry for help when being sexually exploited are clearly outlined in a following paragraph stating:
“The prosecution is reliant on under age people giving evidence in Court as witnesses. Under age people may not wish to co-operate with a prosecution as they wish to continue providing commercial sexual services. It is also important to note that under age people may not often see themselves as victims and will therefore not make a complaint.” (p. 109)
Further exploration on the feelings of exploited children towards their situation and their abusers are discussed here.
The PRA report goes on to describe difficulties with rescuing exploited 17-year-olds as by an older child protection law they do not qualify as children (a problem the report committee at least promises to address in the future). Let it nonetheless be clear what this means for exploited teenagers in practice: 1) the police struggles to enter a brothel and has to get a warrant first, 2) there are no records kept at brothels of “employee” ages and, 3) asking for a suspected minors ID isn’t legal, unless they are being charged with a crime, 4) if police somehow do obtain age information of a teenager and they are 17, legally removing them from an exploitative situation without their consent isn’t possible. Consequently, police have suggested to make it a criminal offence to be a 17-year-old in prostitution, so they would be able to check IDs and rescue a teenager, which was rejected, but showcases law enforcements’ desperation concerning the situation (p. 110).
Prostitution is often discussed as though there is no conflict between the apparent right of an adult to freely engage in the industry and the child exploited and paid to be raped – however in practice a closer look at prostitution laws shows us that there is always a weighing of priorities to either cement the right of an adult to engage in prostitution undisturbed by law enforcement or to identify victims of child exploitation. By which I’m not trying to argue that adult individuals in prostitution agitating for decriminalization have the intention of harming children! These gaps in the law are the responsibility of lawmakers and specific interest groups who have pushed for “harm reduction” approaches towards child exploitation rather than exit – showcased in this paragraph:
“In relation to street-based under age prostitution, the NZPC does not believe that increased arrests of clients by Police are an appropriate solution. The NZPC argue that increased arrests will merely drive young people somewhere less visible (and consequently less safe) and will not significantly decrease demand.” (p. 110)
The NZPC is the New Zealand Prostitutes Collective, an advocacy group for decriminalization of all aspects of prostitution, providing local support and health services to persons of all ages in prostitution. Having over the years positioned themselves as the definitive voice of people in Kiwi prostitution, the NZPC has been criticized for harm denialism rhetoric, supporting women not disclose STIs and keep working despite them and not providing exit opportunities for women and girls wishing to leave the industry.
Trends in organized crime are visible to the trained eye from observing the conditions for prostituted women on the streets, which show that pimps and traffickers are not discouraged by legality (quite the opposite). Residents and outreach organizations near street prostitution can attest to the fact that horrific crimes against adults and children persist despite legality and that perpetrators feel encouraged by legalization/decriminalization to enact their abuse in readily visible areas. The idea that prostitution being visible lessens the crime is highly contested and ignores that under any law the majority of prostitution is out of sight and indoor (where pimping, trafficking, child abuse, murder and rape persist as evidenced earlier in this article, murders also haven’t stopped in New Zealand).
Even if one believes otherwise following the logic of the NZPC’s recommendation means decriminalizing the men who buy children off the street to rape them, which should face universal condemnation and fall apart readily when paid child sexual abuse is replaced with any other crime:
“In relation to the beating of underage people, the NZPC does not believe that increased arrests of adults who beat children by Police are an appropriate solution. The NZPC argue that increased arrests will merely drive battered children somewhere less visible (and consequently less safe) and will not significantly decrease the crime of child battery.”
Sound logic? How about adults giving drugs to children – that’s a crime frequently accompanying the pimping of a minor? Does heroin become a more harmful drug when the high-as-a-kite victim is lying in a drug den rather than by the street? Does rape by an adult man become less harmful to a child’s body and psyche when the perpetrator picking up the victim with their car or pulling them into the bushes is visible by patrolling law enforcement (who are also not supposed to interfere…)? No. This is an insane and cruel proposal.
It is true that various anti-violence laws when inadequately approached by law enforcement and institutions can cause harm to a victim – many cases from male intimate partner violence situations showcase this – nonetheless the answer is not to legalize/decriminalize the crime at hand, but to improve the training of law enforcement and related services.
Read the next part here.