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Sex Work and the Law (WA)

Written by Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Master of Arts. She also completed a Graduate Diploma in Legal Practice at the College of Law in Victoria. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practised in family law after moving to Brisbane in 2016.

Under the Prostitution Act 2000, it is illegal to carry out street-based sex work in Western Australia and most prostitution-related activities are illegal. However, the act of prostitution itself is not against the law in WA. Brothels are illegal under the West Australian Criminal Code but there are no laws prohibiting escort agencies. Numerous prostitution offences exist in WA and the approach taken to sex work is generally a punitive one.

What is prostitution?

The Prostitution Act defines prostitution broadly as including any payment for sexual stimulation by means of physical contact, whether the payment is monetary or other.

Street-based sex work

The Prostitution Act empowers police to stop and search anyone who they suspect is soliciting. A person suspected of engaging in street-based prostitution, either as a sex worker or as a client, can be issued with a move-on notice, prohibiting them from returning to a stipulated area for up to 24 hours. If a person contravenes a move-on notice by returning to the area, they can be issued with a restraining order, prohibiting them from returning to the area for a period of up to one year.

These laws have been criticised for being punitive, particularly as they can mean that a sex worker is prohibited from entering an area that includes their home.

Children

The Prostitution Act establishes a number of offences relating to prostitution and children. Under Section 15, it is an offence to provide prostitution services to a child and this is punishable by imprisonment for up to nine months. It is a serious offence to cause or permit a child to work as a prostitute, to obtain payment for prostitution by a child or to accept prostitution services from a child. Penalties also apply for taking part in prostitution in a place where a child is present and for allowing a child to be at a place where prostitution occurs.

However, the Prostitution Act also makes it an offence for a child to work as a prostitute or to seek prostitution from another person. Under Section 14, a child who works as a prostitute can be imprisoned for up to two years and under Section 19, a child who seeks prostitution from another person can be fined up to $6000. The effect of these provisions is that children who become involved with prostitution may be criminalised as well as the adults who engage in sexual acts with them.

Other offences

It is an offence under Section 190 of the Criminal Code to keep or manage a brothel or to live off the earning of prostitution. This is punishable by a maximum of three years imprisonment and has the potential to be used to prosecute the dependants of sex workers as well as other staff employed by brothels.

Under the Prostitution Act, it is an offence to carry out sex work without using a prophylactic (Section 8). This is an offence for both the sex worker and the client. It is an offence to advertise for sex workers or for other staff to work in an establishment providing sexual services, such as a receptionist for a brother (Section 9). It is an offence to seek prostitution in view or hearing of a public place (section 4).

Law reform

There have been calls for Western Australia to decriminalise sex work, though opinions are divided as to whether decriminalisation will change things for the better. Many sex workers and advocates say that decriminalisation is in the interests of health and safety, as sex workers currently find it difficult to report offences against them to the police. Many advocates say that sex work is a legitimate profession and should be regulated as such.

Other voices are calling for WA to follow the Nordic model, where clients of sex workers, rather than sex workers themselves, face penalties for engaging in prostitution. The model was introduced in Sweden in 1999 and has led to a dramatic drop in the number of women involved in sex work.

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