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

PIVOT LEGAL SOCIETYtesting is intrusive and raises privacy issues. One massage parlour owner succinctly summarized theseconcerns this way:A. Yeah, I just – I just don’t see mandatory testing working . . . I just don’t see howworkers’ compensation for STD could function in practice. I mean there is otherproblems with tests, if it’s once every month. You could actually, just, contract somethingimmediately after the test. Become contagious before the next – y’know. Andas soon as you have a system of testing, it gives a false sense of security to clientele.Y’know, people say that all the time. I don’t even know where to start with it. Whena client says to me, Well, are your girls tested? . . . The only reason you should beconcerned if she has something, is if you want to have an unsafe practice with her. Sowhy are you even asking? And if she has been tested, the incentive to do the unsafepractice becomes that much greater. Because well, everybody’s clean . . . Any typeof, of testing. Even like down in Nevada, they, they test their staff at these brothels.And it’s just sickening. Like, how can you sit there and tell your clientele, All ourgirls are tested weekly. Tested for what? And why? Why – what are you testing themfor? Because you are expecting them to have unsafe sex? Or you’re basically telling yourclientele that well if you force her to have unsafe sex – either physically, or offer her moremoney, she’s going to be safe. So feel good about that. Go for it.- female massage parlour owner, former sex workerNevertheless, sound sexual-health practices should be encouraged, an issue that will be addressedmore in the section “Occupational Health and Safety Regulations” on page 121. Sexual-health practicesshould involve education and training, as well as voluntary disease testing, which is the approachtaken in New Zealand. The Guide to Occupational Health and Safety in the New Zealand Sex Industry 67recommends that sex workers receive comprehensive sexual-health examinations at least bi-annually,although it is ultimately up to sex workers to determine the frequency of such tests. 68 The guidealso suggests that, in the case of condom breakage or slippage, tests be undertaken within 10 to 14days. 69 Regarding privacy concerns, the New Zealand guide recommends that employers may ask tosee certificates showing regular testing; however, certificates should not disclose test results, and norshould they be displayed in the workplace. Test results remain the property of the employee. 70In the context of workers’ compensation claims, regular voluntary testing would help bolsterclaimants’ cases that they acquired sexually transmitted illnesses during the course of employment. Sexworkers who could show they were free of illness prior to the date of alleged contraction would probablyhave a better chance of establishing their entitlement to compensation.Privacy concernsDisease testing, as well as the process of filing a workers’ compensation claim itself, raises potentialprivacy issues. A Board representative conducts an investigation once a claim is filed. The investigationcan involve interviewing witnesses, and reviewing medical and employment records. In addition, theWCA requires that both workers 71 and employers 72 fulfil a number of obligations in reporting injuries,including the provision of the name and address of the affected worker.67 Occupational Safety and Health Service, Department of Labour, A Guide to Occupational Health and Safety in the New Zealand SexIndustry (Wellington, Department of Labour, 2004) online: .68 Ibid., at 34.69 Ibid.70 Ibid.71 WCA, supra note 6, s. 53(1).72 Ibid., s. 54(1).120