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Is our legal system failing women?

30 Mar 2023

| Author: Diana Clement

Many would argue that women have achieved equality in the law. But the impact of the law on women’s lives is not always plain to see. Sometimes even new laws fail women, say family lawyer Kesia Denhardt, a partner at Stace Hammond, and Erica Burke, an associate at Haigh Lyon Lawyers and co editor-in-chief of the New Zealand Women’s Law Journal Te Aho Kawe Kaupapa Ture a ngā Wāhine.

Denhardt and Burke have identified several areas of the law where they say the legal system still fails women and in some cases others, including men and transgender people.

Paid leave for family violence victims

Prior to 2018, paid leave for family violence victims was entirely at the discretion of an employer. Thanks to the Domestic Violence – Victims’ Protection Act 2018, family violence victims (invariably women) are now entitled to:

  • up to 10 days’ paid leave per year;
  • the ability to request short-term flexible working arrangements; and
  • the right not to be treated adversely because they have suffered family violence. Employees can also exercise the rights to support a child who has experienced family violence. Family violence that occurred before the employment began is also covered. While the legislation got it right in many ways, there is room for improvement, Denhardt says.
  • Not long enough. The number of days available for domestic violence leave has been criticised as insufficient. Two months of flexible working is also not long when family violence often affects every aspect of a person’s life. “In some cases, two months may be woefully inadequate, when one considers the time it often takes for family violence impacts to subside, or related issues such as child care,” Denhardt says. “It puts an employee in a position where they need to keep knocking on their employer’s door every two months, seeking to renew their arrangement.”
  • Workplace culture. Employees worry about their employment and wider career opportunities being negatively affected, despite the prohibition against this. “In order to ensure this does not deter employees from accessing these benefits, it is crucial that workplace culture clearly demonstrates that employee wellbeing is a priority,” Denhardt says.
  • Safeguarding against breaches of privacy and confidentiality. The legislation does not deal with privacy and confidentiality issues, Denhardt says. “It is widely accepted that employees are not activating these entitlements for fear of their privacy being compromised. It is important that organisations update their policies so that they carefully contemplate and provide for how the exercise of these entitlements will be managed to maintain privacy and confidentiality as much as possible.” She suggests that ways to contain this information could include the use of leave being recorded as something other than ‘family violence leave’ and/or for leave records to be accessible to a restricted number of staff.
  • Element of proof. In the case of family violence leave, employers can request proof, which can be problematic for some victims, Denhardt says. “This is because family violence often takes place out of public view and so there is no proof beyond the victim’s word. Proof in the form of statements to police or medical reports may not be available, especially in cases where the abuse is predominantly psychological in nature.” The legislation does not prescribe what constitutes acceptable proof. However, if proof is not provided to the employer’s satisfaction, they can withhold pay, unless there’s a ‘reasonable excuse’. This will discourage some victims from exercising their right to family violence leave.
  • Lack of awareness. “It has been three years since the Act came into force, yet surveys and bodies of work suggest there’s still a real lack of knowledge about this type of leave,” Denhardt says. Ongoing education is needed, and the legislation would benefit from a requirement for this.
  • Casual employees not covered. The other issue, she says, is that whilst casual employees have the same entitlement to family violence leave, they may not qualify due to an ‘hours worked’ test.

 

Bereavement leave after miscarriage and stillbirth 

Another new law that benefits women and their partners is bereavement leave for miscarriages. Thanks to the Holidays (Bereavement Leave for Miscarriage) Amendment Act 2021, women, their spouse/partner and people planning a child through surrogacy or adoption are eligible for up to three days’ bereavement leave for miscarriage. Previously, a stillbirth entitled a woman to bereavement leave, but miscarriage did not.

Ironically, some organisations were known to include pets in their bereavement leave policies but until the Act was passed, they had not considered or catered for miscarriage, Denhardt says. “Often, women feel a sense of responsibility for the loss, or that they are not entitled to grieve an unborn child. This mandatory leave in some way acknowledges and validates their right to do so. The inclusion of a woman’s spouse or partner means they can be there to provide support, but also that they too can take the necessary time to properly grieve.”

Denhardt quotes Labour Minister Ginny Andersen who said in Parliament that women and their partners needed time to come to terms with the loss without having to tap into sick leave because the grief is not a sickness. “It is a loss and loss takes time,” Andersen said. Now, miscarriage prior to 20 weeks and stillbirth after that time are treated the same. “It captures the whole duration of the pregnancy,” Denhardt says. However, the critical area where the new amendment falls short is with pregnancies that end by abortion, although abortion was decriminalised in 2020.

“A distinction seems to be drawn between whether or not the pregnancy ends in an unplanned or a planned way,” Denhardt says. “The fundamental problem with the exclusion of abortion is that it has the effect of ‘grading’ the potential loss and grief suffered on the end of a pregnancy, depending on how this occurred, despite the research clearly showing that the reason may have no bearing.

“This distinction certainly does nothing to promote reproductive autonomy which the abortion legislation aims to create. It cannot be denied, in my view, that this is discriminatory. It also serves to enliven the negative stigma sometimes linked to abortion.”

“This distinction certainly does nothing to promote reproductive autonomy which the abortion legislation aims to create. It cannot be denied, in my view, that this is discriminatory. It also serves to enliven the negative stigma sometimes linked to abortion.”

“‘The law should be amended. The cause of the end of a pregnancy should be irrelevant and should not need to be disclosed.” The other area where the law falls short is the number of days available for bereavement leave following miscarriage. It’s 60 days in the Philippines, says Denhardt. “It’s woefully inadequate at three days here in the case of any death, not just miscarriage.”

Prostitution law reform

Another law, albeit not as recent, that fails to protect some women in the way it should is the Prostitution Reform Act 2003, Denhardt says. Prior to 2003, prostitutes didn’t have rights or protections, meaning they involved themselves in sex work at their own risk. They couldn’t, for example, require customers or clients to wear condoms, with unprotected sex being the norm and expectation on the part of the client.

That all changed with the 2003 Act, at least for citizens and resident sex workers. An on-going issue, Denhardt says, is the lack of protection for migrant sex workers as a result of s 19 of the Act. “[That] provides that it’s a condition of every temporary visa in New Zealand of any kind that the holder of that visa not provide commercial sexual services. In this way, sex work is not decriminalised for all but, rather, only for those who are citizens and residents, as migrant sex workers are prohibited from engaging in sex work without breaching their visa conditions.”

This leaves migrant sex workers open to exploitation. Being at risk of deportation, they are reluctant to report mistreatment. “Brothel owners, clients or customers have an awareness of this gap for migrant sex workers. And they can use this to their advantage because they know that there’s no consequence,” she says. That means forcing workers to have unprotected sex or do other acts they would otherwise not agree to if they weren’t at risk of being reported to authorities.

“The divergence in treatment between both groups means migrant sex workers are more disempowered, disarmed and exposed than they were before the Act was passed, achieving the opposite of its objectives when it comes to this group. Whilst citizens and residents are validated and empowered, migrants are invalidated and disempowered.”

Whilst Denhardt acknowledges that repealing s 19 would have implications for immigration processes, she says “it’s absolutely worthy of the work that will be required to mitigate the harm being caused to migrant sex workers as things stand.” A petition was put before Parliament in June 2021 to repeal s 19.

Denhardt adds that the purported reason for this provision was to discourage human trafficking. Yet examples of human trafficking that hit the headlines are almost always in horticulture, not sex work. She argues that this exclusion was created in the Prostitution Reform Act because of societal stigma and not to prevent human trafficking, which is already prohibited and effectively regulated under the Crimes Act. ■

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