Brisbane case reveals divergent ways in which the law treats sex workers who are tricked out of payment by customers

'It absolutely should be seen as rape': when sex workers are conned

The texts trigged no alarm bells for Gabrielle (name has been changed), a Brisbane sex worker. Her new client seemed nervous, even afraid, but he didn’t seem dangerous.

“He was saying, ‘oh I’m really, really nervous. This is the first time I’ve ever hired anybody’,” she told Guardian Australia recently.

“I just told him ‘look, that’s fine’. I’m a pretty approachable person. I’m quite friendly and down to earth so I was just trying to make him feel comfortable.”

Gabrielle didn’t know it at the time, but the client was repeating a set of behaviours he’d already used to con other sex workers in Brisbane out of payment.

In some jurisdictions, courts have found that when a person cons a sex worker – refuses or evades the agreed payment for sex – such acts constitute rape, because consent for the sexual act was obtained fraudulently.

But Gabrielle’s case led to a wildly different outcome. Her offender was convicted of fraud, an outcome that initially left her conflicted.

“Originally I did feel like he should have been charged for rape and I was pushing for that. In my mind, payment equals consent and if you take away the payment I wouldn’t be consenting to having sex with him,” Gabrielle said.

“But I’ve since thought about it and I really don’t think rape is appropriate. After thinking about it and speaking to other sex workers who have been raped and ended up in hospital after being assaulted, my case isn’t like that.”

“I do think he should have been charged with something more serious.”

The future of sex work – a photo essay Read more

Experts and sex worker groups, however, believe such cases clearly constitute rape and say parts of Australia’s justice system still fail to properly deal with offenders who fraudulently obtain the consent of sex workers.

Jane Green, a spokeswoman for Victoria’s sex worker advocacy group Vixen Collective, said there was no question that fraudulently obtaining consent constituted rape.

“It’s absolutely sexual assault,” Green said.

She said sex workers faced multiple barriers to justice. Many feared coming forward to the police, and were often not treated as sexual assault victims if they did, she said.

“Even if things work, even if police take a complainant seriously ... then accessing justice in the courts is as bad,” she said.

Green said studies showed sentencing was also comparatively low for men who had sexually assaulted sex workers.

When Gabrielle’s client next texted her that night in July, it was to say his train was running late. Not long later, he told her he was having a cigarette downstairs to calm his nerves.

“It was a lot of small, incremental things that I know now he’d already planned in advance,” she said.

“Running late, saying he was really nervous. Little things like that. Usually we’d get the fee done at the beginning of the booking but I sort of didn’t want to freak him out and demand money up front.

“He puts you off your game that way.”

The envelope trick

The client never paid Gabrielle. After the appointment, he left an envelope on a table in her apartment and she showed him where the closest bottle-shop was. He went to catch a train at Roma Street, and she went back to her apartment.

“When I went back home, there was nothing there,” she said.

Back at her apartment later that night, Gabrielle began telling other sex workers in her network what had happened. It didn’t take long before she heard from an acquaintance, Stacey (name has been changed), who had an eerily similar story from a booking a week earlier.

“I received a call from a rather nervous guy who said he had never seen an escort before, wanting an appointment as soon as possible that day,” Stacey told the Guardian.

Rape at gunpoint is illegal in America? Tell that to the women we work with Read more

“He seemed OK on the phone and passed all my usual screening. Obviously, I missed something.

This time the client arrived about 15 minutes early but waited outside smoking and drinking two cans of bourbon.

“After the booking he dressed and he took out his wallet and said ‘oh I must have forgotten to go the bank’,” Stacey said.

“I thought, ‘you fucker’.”

The two women took the case to the Queensland police, and the man was charged with two counts of fraud. In August, he pleaded guilty to both offences in the Brisbane magistrates court and was ordered to pay $350 restitution to each woman and was fined $750 for each offence.

But the Brisbane case has revealed the glaringly divergent ways in which the justice system treats such crimes.

In the ACT, a similar set of circumstances led to a rape conviction for Canberra’s Akis Emmanouel Livas, then 52.

Livas visited a self-employed sex worker at her Canberra home twice in 2010. He didn’t pay the full amount the first time, and the second time he gave the woman a sealed envelope. Livas told her the full amount owed was inside, but urged her not to open it until they were finished.

“No, no, no, don’t open it now, it’s – you have to trust me on this, it’s part of my fantasy that it’s all about the romance and I need you to trust me,” he said, according to the ACT supreme court.

The woman became increasingly concerned when Livas physically blocked her from opening the envelope a second time. Eventually, she discovered there was no money inside.

Picking up a leaflet at a freshers’ fair won’t turn you into a sex worker | Molly Smith Read more

“In the days following the incident, I was unable to think clearly, eat or sleep properly and I felt continuously tired,” the woman later told the ACT supreme court. “I was confused and hurt in a deeply emotional way, feeling shame about my gullibility.”

The woman said she had felt powerless, violated and deceived.

“In my work, I do not simply allow clients access to my body,” she told the court. “For a short time I give them the opportunity to feel loved. In a world that values romantic fantasy, I offer a commercialised version.

“The care and affection that I showed Mr Livas during what I thought to be an honest service was completely devalued when I realised that I had been deceived.”

In sentencing Livas, justice Hilary Penfold wrote that there was no doubt that his actions constituted rape.

“Sex workers clearly fall into the category of vulnerable workers in general and may be particularly vulnerable to abuse of this kind,” she said.

“Certainly, no one should doubt that fraudulently achieving sexual intercourse by this kind of activity constitutes rape, rather than a dishonesty offence, although of course dishonesty is a major element of this fact situation.”

Facebook Twitter Pinterest Queensland sex worker organisation Respect wants the state government to follow NSW in decriminalising sex work. Photograph: Michael Wickham/The Guardian

RMIT University’s Meagan Tyler, an expert in feminist theory and sexuality, has studied violence against women, including in brothels, extensively. She said the justice system struggled to properly deal with cases of fraudulently-obtained consent.

“It absolutely should be seen as rape, there’s no doubt about that in my mind,” Tyler said.

She said the cases that had emerged publicly were probably only a small proportion of the crimes occurring.

“It is very telling that so few get to court,” she said. “As with other forms of sexual assault cases, we know this means that there are a lot more out there that are not getting to this point.

“Police may not be taking them seriously, and the fear of reporting ... is a huge problem.”

“The focus tends to be on the women in the sex industry. The women in prostitution are seen as the problem and the men, unless they do something egregiously bad, are simply seen as customers.”

‘No violence in my case’

Like Gabrielle, Stacey doesn’t believe her case warranted a rape charge “as there was no violence in my case”.

But she does believe it highlights the difficulties sex workers can face in reporting crimes. While in this instance the offender was convicted, when she reported an “almost identical crime” last year she was told it “seemed to be a civil matter as there was an agreed contract of sex for payment”.

She eventually received payment after the officer agreed to contact the offender, but he was never charged.

“I do believe that there needs to be some police awareness of the laws relating to the offences that can occur to sex workers,” she said.

“If police were less ignorant, sex workers would be better able to report incidences like this.”

Elena Jeffreys, the state co-ordinator for Queensland sex worker organisation Respect, said stringent regulations and active police enforcement often discouraged sex workers in the state from reporting crimes.

Under the Queensland law, independent sex workers are not allowed to message one another about their current location, conduct group bookings, share a workspace, employ someone to answer their phone or use the same driver as another sex worker.

“It means sex workers are faced with a choice of, ‘do I work within the law, or do I implement my own safety strategies?’,” she said.

Respect wants the Queensland government to follow New South Wales in decriminalising sex work to take the regulation out of police hands, citing crime statistics that show fines for advertising offences related to sex workers were up 450% in 2016-17.

“It will simply depend on the moral compass of the cop at the time a sex worker fronts up to the station to give a statement,” Jeffreys said.

“How many other sex workers have had the same thing happen to them? We don’t know because the current policing regime in Queensland means offences are going unreported and offenders are going unpunished.”