Understanding the Objective.pdf

Legislature is saying if serious offence is taken at

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legislature is saying, ‘If serious offence is taken at the mere thought of prostitution that is perfectly justifiable and we need not examine this response any further.’ 77 Section 15 may simply reflect a political compromise reached in order to secure the passage of the reforming legislation and hence this interpretation was the one intended by parliamentarians, but if this is the correct approach it causes difficulties. Perhaps the least of these is an internally inconsistent statute, hoist on opposing policies. The major difficulty however is explained above. If an exception is being made to the general approach taken to psychological effects, this exception is not being made to protect a minority (as in the case of Măori) rather it is serving to undermine and, by the use of law, permit a damaging prejudice to continue against another vulnerable minority. To just accept an emotional response to the mere thought of prostitution (which may, as Nussbaum argues, be based on “irrational prejudice … vague, undifferentiated fears, incapable of providing any logical justification”) without permitting the court to examine the underlying cognition will contribute to stymieing any real reform; irrational prejudice against sex-workers will continue to be considered acceptable and will remain unabated and unchecked. In summary, psychological effects in the context of prostitution are troubling and the drafting of the statute does not lend itself clearly to one interpretation. Given this lack of clarity, a persuasive argument can be made that a court should scrutinise the cognition underlying the emotional response, and should assess this cognition from the perspective of logic and reasoning. This would result in a consistent legal approach: it would ensure greater consistency to the approach taken to psychological effects in resource 76 For a more detailed discussion of the damage this can cause to sex-workers see A C Warnock and N R Wheen “Prostitution in New Zealand: The Re-importation of Moral Majoritarianism in Regulating a Decriminalised Industry” (forthcoming 2012, copy on file with author). For an exploration of the utility of state-sponsored shaming in the criminal context, see for example Nathan Harris “Shame, Ethical Identity and Conformity: Lessons from Research on the Psychology of Social Influence” in Susanne Karstead and others (eds) Emotions, Crime and Justice (Hart Publishing, Oxford, 2011) at 193–209; further see Richard Posner arguing against shaming criminals, “Emotion versus Emotionalism in the Law” in Susan A Bandes (ed) The Passions of Law (New York University Press, New York, 1999) at 309, 319–321. 77 Section 3 of the Prostitution Reform Act 2003 may lend weight to this assertion. The section states that “The purpose of this Act is to decriminalise prostitution (while not endorsing or morally sanctioning prostitution or its use)”.
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594 New Zealand Universities Law Review Vol 24 management; and it would ensure an internal consistency within the Prostitution Reform Act. It would require opponents to demonstrate that
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