Sex Workers and Consent: Unblurring the Lines
Would sex work need to exist in an ideal society?
You may be familiar with Onlyfans, the subscription-based social media platform, where individuals can pay to consume sexually explicit content, such as livestreams or intimate communication offered by sex workers. [1] However, this umbrella of ‘sex work’ encompasses a range of activities, including the use of Onlyfans to in-person services of having sexual intercourse. [2] Beyond the world of Onlyfans, there remains a lack of clarity about consent and sexual assault regarding in-person sex work. [3] Sex workers face barriers to access to justice due to the legal and societal discourse surrounding sex work across Australia.
Historically, the stigmatisation of sex work acts as a barrier for seeking legal advice on the issue of sexual assault when consent is withdrawn in sex work. [4] In Australia, the discourse surrounding sex work includes narratives of disgust, danger, and the criminal profiling of the industry. [5] Sex work was first decriminalised in New South Wales in 1995, [6] followed by the Northern Territory in 2019, [7] Victoria in 2022, [8] and most recently decriminalised in Queensland in August 2024. [9] Interestingly, in the Australian Capital Territory, while sex work in brothels is not criminalised, sole trading sex workers are required to register with the Office of Regulatory Services to engage in commercial sex work and prevent facing criminal penalties. [10] Western Australia, South Australia, and Tasmania continue to impose criminal penalties for sex work, positioning sex workers to navigate the legal system for their protection vigilantly. [11]
According to Stardust et al, the heavy legal regulation of sex work perpetuates the narrative that ‘sex workers are responsible for their own safety and the risk of violence’, [12] which includes sexual assault while providing their services. In the Australian Capital Territory, the case R v Livas upheld that a man pretending to pay a sex worker amounted to sexual assault. [13] However, outside of this case, there is a lack of legislative or federal consensus as to whether fraudulent payments to sex workers constitute sexual assault. [14] Sex workers across Australia have had to ask themselves: Do fraudulent payments from clients constitute sexual assault?
In 2022, the New South Wales Government implemented s 61HJ(1)(k) of the Crimes Act 1900 (NSW) (‘Crimes Act’), [15] which entered into force in 2023, providing a legislative answer to this question in New South Wales. Under s 61HJ(1)(k), fraudulent inducement is a circumstance in which there is no consent provided to participate in sexual intercourse. [16] Interestingly, the Crimes Act stipulates that ‘fraudulent inducement does not include a person’s wealth, income, or feelings’. [17] Notably, there is no definition of what fraudulent inducement entails within the Crimes Act. [18] The Legislative Assembly of New South Wales has confirmed that fraudulent inducement involves ‘very serious deceit’ which extends to sex workers who are falsely promised payment for sexual services. [19] Similarly in 2022, the Victorian Government implemented a new provision in the Crimes Act 1958 (Vic), [20] s 36AA, which confirmed that false or misleading representations of payment in the provision of commercial sexual services constitute sexual assault. [21]
Indeed, the new consent laws concerning fraudulent payments are a progressive shift towards acknowledging the legal challenges that sex workers experience and increasing access to justice for sex workers in the legal system. Given that the new consent laws are only applicable in two jurisdictions, it is recommended that other jurisdictions in Australia follow the example of New South Wales and Victoria by amending their respective legislative instruments to include fraudulent inducement as a ground for sexual assault.
Unfortunately, the entrenched stigmatisations of sex work can minimise the effect of the new consent laws discussed above. The lack of a federal decriminalisation of sex work across Australia prevents sex workers in Western Australia, Tasmania, and South Australia from accessing the legal system out of fear of prosecution or judgement. Further, the Australian legal system has a history of regarding ‘the consent of people who sell sex… as irrelevant’, [22] with some case law, such as Attorney General v Harris, establishing that when sex workers experience sexual assault it ‘is not as heinous as when committed, on a happily married woman’. [23] Alarmingly, as Stardust et al’s study echoes, police predominantly ‘do nothing about it’ when sex workers report their experiences of sexual assault, either viewing sex workers ‘in a perpetual state of consent’ or vilifying them. [24] To pursue justice, it is recommended that the Australian legal system dismantles its stigmatisation of sex work, by enforcing federal decriminalisation and shifting the police culture surrounding sex workers, to incentivise sex workers to access the legal system.
[1] Jorik Van Hove and Maxim Vlerick, ‘Revolutionising Digital Sex Work: An Analysis of OnlyFans on Sex Workers’ (LLM Thesis, Ghent University, 2021) 1.
[2] Ibid.
[3] Michael Hansen and Isabelle Johansson, ‘Asking About “Prostitution”, “Sex Work” and “Transactional Sex”: Question Wording and Attitudes Toward Trading Sexual Services’ (2022) 60(1) The Journal of Sex Research 153, 155.
[4] Zahra Stardust et al, ‘I Wouldn’t Call the Cops if I was Being Bashed to Death’: Sex Work, Whore Stigma and the Criminal Legal System’(2021) 10(3) International Journal for Crime, Justice and Social Democracy 143, 144.
[5] Ibid.
[6] Eurdice Aroney and Penny Crofts, ‘How Sex Worker Activisim Influenced the Decriminalisation of Sex Work in NSW, Australia’ (2019) 8(2) International Journal for Crime, Justice and Social Democracy 50, 51.
[7] Paola Gioia Macitoi, Jennifer Power and Adam Bourne, ‘The Health and Well‑Being of Sex Workers in Decriminalised Contexts: A Scoping Review’ (2023) 20(1) Sexuality, Research and Social Policy 1013, 1014.
[8] Ibid.
[9] Criminal Code (Decriminalising Sex Work) and Other Legislation Amendment Bill 2024. ‘Sex Work Industry Decriminalisation’, Queensland Government Department of Justice and Attorney-General (Web Page, 2 August 2024) <https://www.justice.qld.gov.au/initiatives/sex-work-industry-decriminalisation>.
[10] ‘Sex Industry’, Australian Capital Territory Government Justice Community and Safety (Web Page, 27 May 2011) <https://web.archive.org/web/20110602043442/http://www.ors.act.gov.au/industry/sex_industry>.
[11] Lauren Renshaw et al, Migrant Sex Work in Australia (Australian Institute of Criminology Report Research and Policy Series No 131, November 2015) 5. Summary Offences Act 1953 (SA) s 26. Sex Industry Offences Act 2005 (Tas) s 7. Criminal Code Act Compilation Act 1913 (WA) s 190.
[12] Stardust et al (n 4) 143.
[13] Ibid 152. R v Livas [2015] ACTSC 50.
[14] Stardust et al (n 4) 152.
[15] Crimes Act 1900 (NSW).
[16] Ibid s 61HJ(1)(k).
[17] Ibid s 61HJ(1).
[18] Northern Territory Law Reform Committee, Parliament of the Northern Territory, Inquiry Into Affirmative Consent in Sexual Offences: Final Report, (Report No 49, 23 November 2023) 18-9. New South Wales, Debates, Legislative Assembly, 20 October 2021, 7510 (Mark Spearman, Attorney-General).
[19] Ibid.
[20] Crimes Act 1958 (Vic).
[21] Ibid s 36AA.
[22] Hansen and Isabelle Johansson (n 3) 155.
[23] Attorney General v Harris [1981] VCCA 346–348. Stardust et al (n 4) 150.
[24] Stardust et al (n 4) 149.