I recently asked whether the vague definition of "sexual services" and definition of the Internet as a public space could be used to make the anti-prostitution Bill C-36 ban pornography. Regardless of how one feels about porn, such a thing would certainly require a debate, and it's a question worth asking.
I also looked at the obvious aspects of C-36 that have sparked outrage from sex workers, and occasionally even from abolitionists.
There are further discussions as well -- more concrete than speculation, but still under the surface of the legislation itself.
Conflating sex work with human trafficking
Anti-prostitution Bill C-36 explicitly puts sex work on the same footing as human trafficking and conflates the two in law. Indeed, they have been consciously equated by Peter MacKay and by the bill's proponents.
The rhetoric used when introducing the bill also does this, through employing a language that claims that people (particularly women) sell themselves or are sold as commodities, rather than simply selling a service. Under this line of thinking, it is considered impossible that sex workers might retain any personal autonomy.
Human trafficking certainly exists, although not as frequently as it is often claimed (studies that claim high numbers of trafficking incidents often similarly conflate it with sex work). The fact that it happens less often does not mean that we should care less or believe that the occurrences of it are somehow less horrible -- but it does justify recognizing when the scope of it has been unjustly stretched beyond what human trafficking actually is.
The UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (or Trafficking Protocol) defines human trafficking as:
“The recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs….”
Human trafficking doesn’t always include border migration, and the exploitation isn’t always about the selling and buying of sex, but the consistent elements are that one person ends up controlling another, via unethically-obtained consent or no consent at all, for the purposes of exploitation.
These circumstances sometimes do occur with sex work, but they aren't inherent to it. Sex work does not always have elements of coercion, of control, or of vulnerability. Sex work actually includes a variety of trades, including street work, escorting, stripping, lap dancing, professional domination, massage, survival sex, porn, and more, making it difficult to generalize about it in an absolute fashion.
The Harper government (and supportive media) has had to paint sex workers, advocates and organizations as rare outliers, in order to maintain the illusion that sex work is always exploitative. A great many sex workers have a considerable degree of personal autonomy and independence. However, those who are in exploitative circumstances are always those who are disproportionately visible, because they will justifiably make contact, seek help and make themselves visible. Unfortunately, this means that the dire circumstances experienced by those who do seek escape become interpreted as being representative of sex work as a whole.
Worse, using the term “human trafficking” interchangeably with sex work actually confuses the issue significantly, diverting funds and energy away from where it's needed and toward combating legitimate sex work as well. This makes it impossible to get clear and realistically comparative data, and reallocates funding away from effective anti-trafficking initiatives. It undermines the fight against trafficking and tarnishes the organizations that try to do the needed work, making it much harder to address actual human trafficking. And it has allowed far right moralists who are more interested in controlling peoples’ sexual habits seductively hijack the dialogue that once considered womens' autonomy and choice to be important.
Under Bill C-36, for example, the emphasis is placed on exit services. But victims of human trafficking have specific (and often urgent) needs that go far beyond exiting sex work. These start with citizenship: far too often, the response to a trafficked person in Canada is to rescue them from an exploitative situation, and then deport them to the very same conditions that made them vulnerable to exploitation. Certainly, without citizenship, access to other social services and the tools they need to begin lives free of exploitation becomes difficult or impossible.
And while sexual exploitation justifiably triggers anger and requires remedy, human trafficking also involves far more than sexual exploitation. It is believed that there are nearly 21 million trafficked persons, worldwide, according to an estimate by the International Labour Organization. Of these, 4.5 million are victims of sexual trafficking. The issue of persons exploited for sexual labour is urgent, yes. But it does not encompass the whole problem of human trafficking. The approach of Bill C-36 allows the public to believe that we've addressed everything that matters.
The embarrassing fall of Somaly Mam -- who resigned after questions were raised about her autobiography, tactics and alleged coaching of shocking stories about sex trafficking -- should provide a strong cautionary tale about how we can sometimes react to the issue by willingly disregarding or failing to check key facts.
If sex workers did not have to feel targeted by authorities or ashamed to reveal who they were, they could in fact become key allies in detecting and identifying where and when sexual trafficking occurs. Besides...
"Kung said the employees were required to share rooms in two five-bedroom homes owned by their boss, Tony Van Den Bosch.
"They had no privacy in the house. The owner would come in and out as he pleased and would enter people's rooms," Kung said.
"In addition, Kung said, the workers were asked to pay rent once at the beginning of the month, and an additional $200 "tip" on top of their monthly rent in the middle of the month, for the double-bunked rooms.
"... The employer also regularly asked the workers from Mexico for their passports and would hold them for periods of time, alleged Kung.
"Two of them were fired and sent back to Mexico after raising concerns about their working and living conditions. Two of them actually fled in the middle of the night one night because they were so afraid..."
How is sex work inherently always incontrovertibly equivalent to human trafficking, but the Harper government's Temporary Foreign Worker (TFW) program not?
The paternal infantilization of women and the idealized rescue of exit services.
Bill C-36 assumes that everyone engaging in sex work is a victim. By doing so, this government ignores the experiences of people who choose to engage in sex work. Unless there is direct force or coercion involved (which is procuring, something that was still illegal before this law was introduced), there are two intersecting factors that motivate people to engage in sex work: poverty and opportunity. The balance between each will vary per person.
While promising to invest money in exit services, the same government fails to address one key driver -- poverty -- and completely disregards the other as non-existent.
Between driving wages down with anti-union policies, the Temporary Foreign Worker (TFW) program, cuts to the public sector, refusing to address economic and gender disparities... the Harper government is a major driver of that poverty. If the choice is to earn as much in two weeks working at a McJob as one could earn in a few nights doing sex work, then that's not really much of a choice, is it?
Certainly, there's no talk about addressing job opportunities and wages that would provide a reasonable alternative. Despite the stigmas, danger and even criminalization, sex work is one of the few ways that people might have to escape oppressive economic circumstances.
And by taking away any ability to work in visible spaces or safe spaces, the Harper Conservatives are driving the industry underground, creating vulnerabilities. The only thing that the government is offering is funding for exit programs. Leave or else. This bill does everything possible to ensure that exiting sex work is the only option.
The rescue industry
The Conservatives have pledged $20 million toward exit programs and enforcement. It's not known how much of that money will go to increased policing costs.
Exit programs are one area where a person really has to wonder how a law is going to be used. Will law enforcement be used to push people into exit programs? Will there be coercion or obligation to participate in them? Will access to assistance or public services be conditional upon participating in an exit program? If a person does not want to participate in an exit program, will the penalty be charges for things they would not have otherwise been punished for? Will participation in exit programs be the only way a sex worker can avoid losing custody or visitation of their children? Will religious institutions (similar to or allied with those who advised the bill, even) be administering these exit programs, and will proselytization be a part of the exit strategy?
Some of these questions sound appalling or absurd, but there are certainly precedents south of the border where these became the consequence of anti-prostitution laws which push exit programs.
A matter of advice
In crafting Bill C-36, there was a clear reliance by the Harper government on the advice of far right religious organizations like REAL Women of Canada and the Evangelical Fellowship of Canada, and virtually no weight given to the people directly impacted by the legislation.
One of the organizations that stands to benefit from the $20 million that the Harper Conservatives have pledged to invest in exit programs is [free-them], which describes itself as an anti-trafficking organization. But the organization appears to have a moralist slant that extends beyond that mandate. When MP Joy Smith (who the organization describes as "Free-Them’s ally in fighting human trafficking") issued a statement in support of Britain's mandatory porn opt-in policy, [free-them] was quick to follow up with a similar statement:
“Children need to be protected from pornographic images that over time can desensitize our youth and create a false sense of sexual reality, and even lure children into a situation of exploitation that no child should ever experience. As Prime Minister Cameron clearly states, this regulation is not banning legal pornography, but rather increasing an extra level of security and protection from pornography getting into the hands and viewership of youth and children that should not be exposed to this. As adults, we have a responsibility to the young generations growing up to protect and defend children and youth..."
If it's difficult to conflate human trafficking with all of sex work, then it's even harder to equate it with the entirety of pornography. Exploitation does happen in porn, yes, but in this case, there is also a highly visible contingent of participants who have been obviously not trafficked, and have relative personal autonomy.
The longer one follows the threads of Bill C-36, the clearer it becomes that it is far less about exploitation, and far more about legislating a specific moral vision. And in the process, the issue of trafficking itself has become hijacked.
Footnote: While I had never set out to become an activist for sex workers' rights, I've come to believe that the freer and more empowered a sex worker is, the less opportunity exists for exploitation, and the more opportunity there is to escape it if it happens. Criminalization achieves the opposite effect.