Damned whores and the border police: sex workers and refugee status in Australia.

• Jurisdiction: Australia
• Date: 01 December 2007
• Author: Walker, Kristen

[This article addresses the question whether sex workers who face persecution because they are sex workers may be able to claim refugee status in Australia on the basis that they fear persecution as members of a particular social group. The author argues that they ought to be able to make such a claim. This is based either on the work in sex work, on the ground of the current Australian authorities on occupation as a form of particular social group rattler the Convention Relating to the Status of Refugees, or the sex in sex work, by analogy with lesbian and gay claims to refugee status. The author concludes, however, that such claims are unlikely to be successful until sex workers' rights are better recognised and protected under international and domestic law.]

CONTENTS I Introduction II Some Notes on Sex Work A A Definition of Sex Work B The Forced versus Chosen Dichotomy III A Case Study: Sex Work in the Dominican Republic A Legal Regulation of Prostitution IV Refugee Law in Australia: The Legal Framework A The Meaning of Particular Social Group in Australian Law B Occupation as the Basis for a Particular Social Group Claim V 'Prostitutes Almost Anywhere': The Work in Sex Work VI The Sex in Sex Work A Gay Men and Lesbians as a 'Particular Social Group' under the Referees Convention B Sex Work VII Persecution VIII Arrest and Prosecution under the Criminal Law A Arrest and Prosecution under a Law Not Specifically Directed at Prostitution B Arrest and Prosecution under Laws Criminalising Prostitution C Violence and Extortion by Police and Clients D Male Prostitutes IX How Might Sex Workers Achieve Recognition as Refugees? Prostitutes are systematically robbed of liberty, security, fair administration of justice, respect for private and family life, freedom of expression and freedom of association. In addition, they suffer from inhuman and degrading treatment and punishment and from discrimination in employment and housing ... The Worm Charter for Prostitutes' Rights ... demands that prostitution be redefined as legitimate work and that prostitutes be redefined as legitimate citizens. Any other stance functions to deny human status to a class of women (and to men who sexually service other men). (1) I INTRODUCTION

In 1985 the International Committee for Prostitutes' Rights published the Worm Charter for Prostitutes' Rights ('Prostitutes' Charter'). (2) The Prostitutes' Charter's primary focus is the decriminalisation of adult prostitution and the extension of workers' rights to sex workers. In addition, however, the Prostitutes' Charter also calls on states to: 'Grant asylum to anyone denied human rights on the basis of a "crime of status", be it prostitution or homosexuality.' (3)

The Prostitutes' Charter's call for states to grant asylum to those persecuted because of prostitution or homosexuality was made over 20 years ago, and since then refugee law in Australia and elsewhere has developed so as to recognise the legitimacy of refugee claims by lesbians and gay men, on the basis that lesbians and gay men may constitute a 'particular social group' under the Convention Relating to the Status of Refugees ('Refugees Convention'). (4) However, recognition of sex workers as refugees has not occurred. This article explores the question of whether such recognition might be possible under Australian refugee law.

Refugee claims based on, or connected with, prostitution arise in several different ways. In some cases, women claim refugee status because they have departed from expected standards of female behaviour in their home country and thus have been, or risk being, labelled as a prostitute, although they have never engaged in sex work. (5) In other cases, women claim refugee status on the basis that they have been, or fear being, forced into sex work in their home country. (6) Still other claims arise in the context of men who claim refugee status on the basis that they have engaged in sexual relations with a prostitute. (7) I am not concerned with any of these kinds of claim. Rather, what I want to explore is the possibility that a woman who has worked as a sex worker without coercion (8) might claim refugee status on the basis that she will be persecuted because she is a sex worker. Such claims are, to my knowledge, yet to be articulated in Australia; but perhaps they should be able to be.

In Part III, I briefly describe, as a case study, the sex industry in the Dominican Republic. This case study will then be used to illustrate the legal analysis later in the article. In Part IV, I set out the legal framework for refugee claims in Australia, with a particular focus on the concept of a 'particular social group' in the Australian jurisprudence. Part V of my analysis focuses on the work in sex work, considering whether persecution of a person because of his or her occupation can give rise to a valid claim for refugee status, and whether this reasoning might extend to sex workers, again on the basis of the 'particular social group' ground. Part VI focuses on the sex in sex work; that is, I consider whether the reasoning that permits lesbian and gay claims for refugee status might be extended to embrace refugee claims by sex workers. In Part VII, I move to the question of what might amount to persecution in the context of sex worker claims to refugee status, in particular addressing the question of whether criminalisation of sex work can amount to persecution within the terms of the Refugees Convention. Although I conclude that prostitutes should be able to claim refugee status if they are persecuted because they are sex workers, I recognise that such an argument may not succeed under the law as it presently stands.

II SOME NOTES ON SEX WORK (9)

A A Definition of Sex Work

It might be thought that the definition of sex work is clear: sex work is simply 'sex for money'. However, this definition is too broad. In fact there is a continuum of sexual economic exchange between women and men (and, to a lesser extent, between men and between women). As Gail Pheterson notes: 'Financial or material compensation for sex may be differentiated as prostitution or may be integrated in relationships such as marriage or dating.' (10)

At some point on the continuum of sexual economic exchange we move from dating and long-term relationships (including marriage) to sex work--from the acceptable to the stigmatised. Sex work is usually differentiated from dating by the number of sexual partners (11) and, I would add, by our understanding of the sexual encounter as work, rather than leisure, for the sex worker. To try to capture the distinction between sex work and dating and long-term relationships, Jo Bindman proposes the following definition of sex work:

Negotiation and performance of sexual services for remuneration

1 with or without intervention by a third party

2 where those services are advertised or generally recognised as available from a specific location

3 where the price of the services reflects the pressures of supply and demand. (12)

B The Forced versus Chosen Dichotomy

Some people--largely women and girls--are coerced or deceived into engaging in sex for money (the money usually going to a third party, not to the woman herself). (13) This is often called 'forced' prostitution, although I would argue that such a term is misleading and inappropriate, as what is in fact occurring when a woman is forced to have sex is rape or sexual assault, regardless of whether the 'customer' pays. Other people--again largely women and girls--hoose, within the constraints of their social and economic circumstances, to engage in sex work. Some commentators have argued that this distinction between forced and chosen prostitution is problematic because prostitution is never freely chosen. (14) Others have argued that the distinction is problematic because it is often used to designate one class of prostitutes (those forced to engage in sex for money) as 'innocent victims', worthy of protection and rights, and one (those who choose 'the life') as 'whores', who have 'sacrificed [their] right to social protection through [their] degraded behavior'. (15) In much work around prostitution, a moral judgement is indeed attached to the forced versus chosen dichotomy. However, for the purposes of my analysis it is necessary to draw this distinction, as the legal issues in the context of a refugee claim may be very different, depending on the kind of prostitution under discussion. I emphasise that in drawing this distinction I do not intend to engage in any moral judgement; indeed, the purpose of this article is to try to further prostitutes' rights claims, not to negate those claims.

III A CASE STUDY: SEX WORK IN THE DOMINICAN REPUBLIC (16)

Like many parts of the Caribbean, the Dominican Republic has an extensive sex industry, much of which involves sex tourism. There are an estimated 50 000 sex workers in the Dominican Republic, 'providing sexual services ... to both men and women, gay and heterosexual tourists'. (17) Notwithstanding this, much of the response to sex work is gendered and most studies of sex workers in the Dominican Republic have focused on women. (18) Because of this, my case study will focus on female sex workers in the Dominican Republic.

Prostitutes--putas or cueras in Spanish, each of which has a negative connotation, roughly equivalent to 'whore'--are stigmatised in Dominican society: 'the connotations surrounding "puta" are the worst that a woman can be'. (19) Sex workers are also known as mujeres de la calle (women of the street) and mujeres libres (free women). Sex workers themselves have started to use the term trabajadora sexual (female sex worker). The general category 'sex worker' may also be broken down into subcategories: bar and cabaret workers, sometimes called analfabetas (illiterates); street workers, known as tigras; independent sex workers who work on a freelance basis with foreign tourists...