*THIS BLOG DOES NOT CONTAIN ANY LEGAL ADVICE IN RELATION TO CRIME, COUNCIL LICENSING OR SEXUAL HEALTH. IF YOU WISH TO OBTAIN SPECIFIC LEGAL ADVICE ABOUT THESE MATTERS, CONTACT THE WRITER OF THIS BLOG OR A LEGAL PROFESSIONAL*
Sex has all kinds of meanings. It is defined by many things. By our parents, by our churches, by our friends, by our partners, by the media. But how is sex defined in legislation and how does it affect sex work? Today I am going to look at how our various pieces of legislation define sex work and the impact it has on the industry from a criminal law perspective.
Sex work, as many of you know, differs from State to State in Australia (it has something to do with our Constitution, and as much as I love Constitutional Law, its incredibly boring to a lot of people so I will save the explanation). But I am going to do a series of blogs that explain the laws with respect to sex work and some things that need to be looked out for from a criminal perspective.
Sex Work Crimes Legislation
There are three main categories of laws which regulate the purchase and sale of sex:
1) laws which punish sex workers for selling sex;
2) laws punishing those who are involved in the management and organisation of sex work; and
3) (while quite uncommon) laws which punish those who purchase sex.
These blogs will look at each State with respect to each of these categories in a series. For this week, we will look at New South Wales (for the rest of the country, stay tuned for the next blog or so which will go into your state). We will be looking at the CRIMINAL legislation and not licensing legislation or health legislation.
Sex Work In New South Wales
In Australia, as much as the entire world would like to tell us differently, it is not illegal to sell sex (except SA). The good news about New South Wales is that sex work is decriminalised – kinda, sorta. Not really. It still has some strict criminal laws about sex work.
In New South Wales, there is a whole section in the Summary Offences Act 1988 (NSW) entitled “PROSTITUTION!” (thanks for that, parliament!). Prostitution (uuuuggggh) is defined under Section 3 of this Act as including acts of prostitution between persons of different sexes or of the same sex, and includes (a) sexual intercourse as defined in 61H of the Crimes Act 1900 (NSW) or (b) masturbation committed by another person on another” for payment.
As a side note, don’t you just love the terminology used? “AN ACT!” “COMMITTED BY”. If I had my way, I would prefer the definition to say something along the lines of “providing sexual services which involved either sexual intercourse or masturbation for payment” but I wasn’t around in 1988 to have my say about how things get talked about. So, please excuse the language of the legislation. Just because I refer to word “prostitute”, doesn’t mean to say I like using the word – its just the law.
Anyway, here is my guide on how to avoid landing in jail over sex work:
Don’t Be A Pimp
Section 15 of the Summary Offences Act 1988 (NSW) states that:
- a person shall not knowingly live wholly or in part on the earnings of prostitution of another person (in other words, don’t be a pimp or you can be imprisoned for twelve months).
- If you are living wholly or in part on earnings derived from a licensed brothel and you own, manage or are employed by the brothel, then you are okay. You’re good to go.
Don’t Coerce People Into Being Sex Workers or Handing Over Money for Being a Sex Worker
Section 15A of the Act states that you cannot use coercion or undue influence to have someone work as a prostitute or have them hand over money that has been obtained through prostitution. That will earn you a trip to Goulburn Jail for 12 months or a hefty fine.
Dont Have A Brothel In Places Where You Shouldn’t Have Brothels
Section 16 of the Act says that you’ll get busted if you engage in prostitution or solicit prostitution in any premises held out as being a massage parlour, sauna bath, steam bath, a facility for physical exercise, or a photographic studio. That will win you three months in jail or a fine.
Section 17 of the Act states that if you are an owner or manager or occupier of one of the above premises and you’re found to have “prostitution” occurring, that owner/manager/occupier gets themselves into trouble as well.
Don’t Advertise Sex Services
This is a goodie but an oldie. Section 18 says you cannot advertise prostitution through the publication of an advertisement or erect a sign that indicates a premise to be used for the purposes of prostitution. You cop three months in jail for that or a hefty fine. I don’t like this. I really do not like this. And to be frank, in SWOPnsw’s legal handkit, they are the first to admit that this law is hardly ever enforced. Just be aware of it. Who knows, one day it could be enforced. I could rant on about this particular topic for a good while, but I will just leave it at that.
Information for Street Based Sex Workers
Section 19 of the Act states that a person in a road or road related area cannot, near or within view from, a dwelling, school, church or hospital, solicitor another person from the purposes of prostitution (note: Street based sex workers, I hear the NSW Police are really cracking down around certain areas in Sydney at the moment – please speak to SWOPnsw about the areas that you should be able to work). This is a really active area at the moment, from what I hear. Now this all covers when someone comes up to you in a car or by foot – the legislation is clear that it involves solicitation through the use of a motor vehicle. Breaches of this part of the Act will find yourself in jail for three months or a hefty fine. So please seek advice about this. I think SWOPnsw are the best people to talk to about this because it is quite a complex area of law when it comes down to the definition of “solicitation” and the differences between walking up to a car, being called over to a car, and so forth. So speak to SWOPnsw.
Section 19A is the law in reverse – ie. clients cannot solicit street based sex workers near these dwellings, schools, churches or hospitals. You are looking at a three month jail sentence or a fine.
Don’t Perform Sex Work In Public
Section 20 of the Act is really clear on this. If you are found to be engaging in “prostitution” (note: definition under Section 3) in an area near a dwelling, church, hospital, school, you are looking at a maximum of six months in prison or a large fine. This also includes providing sexual services in a car, regardless of whether you can be seen in public doing it. The Act is pretty explicit when it comes to this. Motor vehicles cannot be used as “premises” – they are considered to be public acts if around dwellings, churches, hospitals or schools.
Procuring for Prostitution
Lets now jump over to the sections of the Crimes Act 1900 (NSW) and we look to this concept of “procuring” for prostitution.
Section 91A states “whosoever procures, entices or leads away any person (not being a prostitute), whether with that person’s consent or not for purposes of prostitution, either within or without New South Wales, shall, notwithstanding that some one or more of the various acts constituting the offence may have been committed outside New South Wales, be liable to imprisonment for seven years.”
Good lord, if someone can wrap their heads around that definition deserves a PhD in law. Lets look at the following section to see if it helps us any further.
Section 91B states “whosoever by means of any fraud, violence, threat, or abuse of authority, or by the use of any drug or intoxicating liquor, procures, entices, or leads away any person for purposes of prostitution, either within or without New South Wales, shall, notwithstanding that some one or more of the various acts constituting the offence may have been committed outside New South Wales, be liable to imprisonment for ten years.”
Okay, now THAT ones makes sense! These two sections are about choice – if you force someone or entice someone (through whatever means) to become a sex worker, then you get in big trouble. A lot of trouble. This is good. This enforces the right of a sex worker to do the work by CHOICE and not through other means.
So there are the criminal provisions relating to New South Wales and sex work. This is not it though. Remember, sex work is also dealt with through council and health regulations also. In time, I will get to that, but if you are concerned at all about these issues, do not hesitate to contact SWOPnsw or myself (who will, in consultation with SWOPnsw) help you with your inquiry.
That’s it for now!