Beyond Decriminalization: Sex-work, Human Rights and a New ...

PIVOT LEGAL SOCIETYCondom use and “wilful misconduct”: the New Zealand approachWould a sex worker who consents to not using a condom during a sexual encounter in the workplacebe engaging in serious and wilful misconduct thereby making compensation not payable unders. 5(3) if she or he contracts a disease? Given the lack of cases where sex workers have made claimsunder Workers’ Compensation, this question has never been tested. Should mandatory condom usebe included in the legislation relating to workplace safety? One example of legislation dealing withthis issue is New Zealand’s PRA.Section 9 of New Zealand’s PRA states that all sex workers and their clients must adopt safer sexpractices; they must take all reasonable steps to ensure that a condom or other appropriate barrieris used for all activities that create a risk of sexually transmitting a disease. 57 Contravention of theseprovisions can result in liability on summary conviction to a fine of up to $2,000. 58Sex workers were in favour of workplace rules requiring the use of condoms. One project participantsuggested that with the benefit of compensation comes the responsibility of using condoms:A. When a sex trade worker gets an STD, if it’s in that time frame when she was notusing a condom, no worker’s compensation for you honey. You should be fined andyou should not be able to work. That’s a huge breach.- female off-street out-call sex workerOne former massage parlour worker who now owns her own business stated that sex workers shouldpractise safer sex, just as non-sex workers should, and that if a sex worker does not practise safer sexand contracts a disease, it is his or her own fault:A. Or just like anyone in the whole population, if you are going to practice unsafe sex,and you catch an STD, then you live with the repercussions of that, for making a badchoice. Maybe it was uninformed choice, but you made a bad choice.- female massage parlour owner, former sex workerAnother sex worker stated that employers should be held responsible where a sex worker hascontracted an illness from their failure to wear a condom:A. On one hand it’s the personal choice to risk everything. Everyone knows that condomsare ninety-nine percent effective. So to choose that line of work, like, how do you putan employer, like, like, they [the employer] have to pay for that abuse if you risk yourown body, sort of thing.- female off-street out-call sex workerHowever, sex workers frequently argued that it would be very difficult to enforce a law relating tomandatory condom use, and that currently it is often not the worker’s choice whether or not to usecondoms. Project participants reiterated that that sex workers living at or below the poverty line,especially when they have a serious substance addiction, may be so desperate for the extra moneyoffered to provide services without a condom that they fail to consider the potential repercussions.They have very little bargaining power.A. No [there is no way to regulate the use of condoms] and especially, no, because Imean – they of course, would offer more money, and if the girl needing that money,and in this case, not thinking what she might get. And depending what drugs orwhatever, puts her to risk and more easily, agreeable to say yes. And, that’s unfortunate;you can’t do anything about it, right? But it is between them too. So, they are57 PRA, supra note 18, s. 9(1).58 Ibid., s. 9(4).116