The following is part two of my critique of the prostitution abolitionist viewpoint as contained in the Factum of the Intervenor Women's Coalition, which was submitted in May 2011 by a coalition of seven abolitionist groups (the "intervenors") in the appeal of the 2010 Bedford prostitution case. Part 1 of my critique rebutted the intervenors' promotion of the "Nordic model" of legislation for Canada.
In their Factum to the appeal court, the intervenors are very fond of repeating certain phrases and ideas as if they are the gospel truth when they are nothing more than unsupported ideology. Numerous examples of ideological assertions masquerading as facts appear in their Factum -- even some in their "Statement of Facts" section (Part II, pages 4-9). For example, Fact #8 reads:
The sexual exploitation, coercion, and violence that define prostitution are practices committed overwhelmingly by men against their social and economic subordinates, women and children. (p. 4)
The view that prostitution is "defined" by exploitation, coercion, and violence is purely subjective, and was soundly repudiated in the Himel case by a wide range of testimony from sex workers, academic experts, and police. The court found that the laws against prostitution prevented workers from taking certain safety measures, which means that the laws contribute to making it unsafe. Even so, most sex work is still conducted consensually, safely, and civilly. Therefore, violence, coercion, and exploitation are not intrinsic properties of prostitution -- they occur under certain conditions that can be improved or fixed, such as by working indoors with others, taking the time to screen clients, or hiring a driver.
According to Fact #14:
Contrary to the analysis of the court below [the Himel decision], indoor prostitution is not safe or healthy for women. Prostituted women routinely face acts of physical and sexual violence in all locations from johns and pimps. (p. 6)
Not only have the intervenors substituted their own ideological view in place of the court's reasoned analysis, they've also misstated the court's findings. Neither the judge nor any witness ever claimed that indoor prostitution is "safe or healthy" for women -- only safer than working the streets. Based on the evidence presented, the judge concluded (emphasis added): "I accept that there are ways of conducting prostitution that may reduce the risk of violence towards prostitutes, and that the impugned provisions make many of these 'safety-enhancing' methods or techniques illegal. The two factors that appear to impact the level of violence against prostitutes are the location or venue in which the prostitution occurs and individual working conditions of the prostitute. With respect to s. 210, the evidence suggests that working in-call is the safest way to sell sex; yet, prostitutes who attempt to increase their level of safety by working in-call face criminal sanction." (Paras 360, 361)
Fact #15 states:
Contrary to the analysis of the court below, physical and sexual violence are not the only relevant harms of prostitution. Prostitution itself is harmful to women. Women in prostitution in all locations endure verbal abuse and humiliation, loss of their children to adoption or state care, physical pain from repeated intercourse, mental trauma, health problems, and homelessness. (p. 7)
The harms described can happen in a variety of contexts and circumstances and are not intrinsic to prostitution. According to this abolitionist "fact" however, it is prostitution that should be blamed and abolished, not the prostitution laws that lead to the arrest of sex workers and loss of their children to state care, not the criminalized working conditions that limit their choices in clients or services provided, not the poverty or abuse that causes their health problems and homelessness, and not the misogyny and whore stigma that sanctions the verbal abuse and humiliation against them. Further, the intervenors mistake the sometimes horrific court testimony as a description of sex work in general, when in fact sex workers were focusing on specific examples of harms to illustrate how the criminal laws endanger them.
The intervenors also committed this error back in Fact #12:
Contrary to the analysis of the court below, there is no clear distinction between pimps, agency/brothel owners, driver/bodyguards or others who live off the income of prostituted women. Women testified about agency owners and drivers who raped prostituted women, got them hooked on drugs, or offered them up to groups of other men. Women testified that these men rarely provided protection from johns. (p. 6)
This disingenuous point can only be made by ignoring the entire context of the case. An extremely diverse range of experiences occurs in sex work, both positive and negative, but of course the focus of the Himel case was on negative experiences. The whole point of bringing the case was to show how the laws put workers into unsafe conditions with little recourse. So if an agency owner rapes one of his workers, it's probably because he knows the prostitution laws (and associated stigma and shame) will allow him to get away with it. The intervenors also cannot admit that many of those "profiting" from the sex industry are actually helping to keep women safe and care about their well-being. The sex industry employs countless regular, good-hearted people, which makes the intervenors' characterization of everyone as exploitative "pimps" who "live off the income of prostituted women" an insulting libel.
Incidentally, the abolitionist myth that "prostituted women" are all passive victims of violent predators and pimps leads to an almost-hilarious contradiction when it confronts the realities of sex workers' lives. The capitalist sex industry that abolitionists hate so much is primarily run by women, and the people who profit the most from the sex industry are sex workers themselves. Many of those that employ or contract sex workers are women, who in turn often used to sell sexual services themselves. Further, sex workers often help each other out by referring clients, setting up dates for each other, and generally looking out for each other. Under abolitionist ideology then, sex workers are simultaneously the abused exploited victims of evil pimps, and the abusive exploitative evil pimps themselves. Obviously, this contradiction indicates a fundamental flaw in abolitionist ideology.
In their Legal Argument (Part IV), the intervenors are not above mixing their ideology with over-the-top hyperbole and fantastical distortions of the Court's decision:
The analysis of the court below is erroneously premised on the assumptions that (i) prostitution itself is not a practice that is typically coercive, unequal and harmful; (ii) both prostitution and male violence against women are inevitable rather than practices of sex inequality; and (iii) responsibility for resisting men's violence rests with women themselves, by effectively diverting it on to less privileged women in other locations. (p. 15)
The Court made none of these "assumptions." It made a finding, based on evidence and expert testimony, that prostitution is often unsafe but can be made safer (like any job that carries risk), and that the criminal laws force workers to work under unsafe conditions. The word "inevitable" occurs nowhere in the decision, although Justice Himel did state: "This evidence tends to support the notion that prostitution is an intractable social problem," which has a different meaning. The third "assumption" that the Court is accused of making is completely unrelated to anything in the decision. Is it some kind of bizarre caricature of the pro-decriminalization position? A clarified version appears a bit later in the Factum:
The finding of the court below that the security of women in street prostitution is violated by the communicating law because it decreases the time women have to "screen" johns for violence should be rejected. This conclusion revives the long-discredited notion that women can and should be responsible for preventing male violence. Any man can be violent and women cannot predict when a man will turn violent. The notion that security of the person is dependent on the possibility of a few more seconds to check for visible weapons or the odor of alcohol is illusory. (p. 16)
Although no one is actually responsible for preventing the violence of others (except for police officers), every one of us takes steps to ensure our own safety every day. This common-sense behaviour is not limited to men, as if women are incapable and need to be protected like children. Further, workers in general do not bear full responsibility for their safety on the job (unless of course their work is criminalized!) Workplaces and jobs are protected by labour laws, occupational health and safety codes, management's responsibilities to their workers, insurance, and so on. Self-employed persons can take advantage of many of these protections too. Finally, the claim that sex workers will not be safer if they have more time to negotiate a transaction is a completely unsupported assertion that flies in the face of all the evidence, including the testimony of sex workers -- the ones that abolitionists refuse to believe or listen to because their knowledge and experiences don't conform to abolitionist ideology.
Here's how the intervenors rebut the three imaginary "assumptions" (above) that the Court never made:
The Coalition submits that these assumptions are wrong and, as a result, Himel J. erred in the connections she drew between the impugned laws and the violence women face. Decriminalizing men's purchase and sale of women's bodies does nothing to disrupt or combat male violence against women. Instead, it removes one means for the state to interfere with that violence. (p. 15)
The intervenors never provide a shred of evidence to show that the Court erred in connecting the laws to the violence. They simply ignore the voluminous evidence presented in court that led to the judge's finding. The ideological assertion they put in its place here doesn't even make sense. When additional safety measures are implemented in a workplace, it's reasonable to expect improvements in safety. Not only would decriminalization enable a sex worker to enhance her safety using various methods that are currently illegal, it would allow her to seek police help, without fear of arrest, if she does experience a violent client. This in turn should help discourage clients from abusing workers because their risk of arrest has increased. So in reality, decriminalization would remove several obstacles to greater safety, exactly contrary to what the intervenors assert.
Later in the Factum (Part IV, Legal Argument), the intervenors misstate the Court's decision so they can sneak in yet more ideology as fact:
While the court below noted the "power imbalance" in prostitution, it failed to identify by and against whom that power is exercised. In social and political terms, prostitution is at once a consequence, a manifestation and a practice of the sexual subordination of women to men in an economically and politically unequal society. In legal terms, prostitution is a consequence, manifestation and practice of sex discrimination compounded by discrimination on the basis of age, Aboriginality, class, race and/or nationality. (p. 12)
Justice Himel did not note the "power imbalance" in prostitution, she merely cited an abolitionist witness to that effect -- Dr. Richard Poulin (para 351). Himel had to disregard Poulin's testimony because it was unsupported by evidence and amounted to "advocacy." This did not stop the intervenors from presenting the "power imbalance" as a fact, because it allowed them to strap a big load of ideology on top of it.
The Overview of the Factum states:
The buying and selling of women's bodies in prostitution is a global practice of sexual exploitation and male violence against women that normalizes the subordination of women in a sexualized form. It exploits and compounds the systemic inequality of women based on sex, race, poverty, age, immigration status, disability and Aboriginality. (p. 1-2)
It's not the act of buying sex that "exploits and compounds" systemic inequality, it's the social attitudes to prostitution, the laws around it, and way those laws force sex workers into unsafe situations. Further, our society is still fundamentally patriarchal and unequal, and the way that prostitution occurs is just one example of many aspects of our culture that "exploit and compound" inequality. It doesn't follow that prostitution itself should be abolished, any more than cashier jobs should be abolished because they're low-paid and dominated by women. The answer is to improve working conditions and reform laws to ensure fair and just work opportunities for all. But throughout their Factum, the intervenors make numerous statements linking various social ills and crimes (such as trafficking) with prostitution itself, as if this somehow supports their argument. They never acknowledge the evidence that such harms emanate from or are exacerbated by the criminal laws, as well as existing social inequities.
The intervenors' use of ideology instead of facts throughout their Factum, and their unwillingness to acknowledge evidence against their position, does not predict success for the abolitionist position in upcoming court cases. Sex workers and their allies who support the decriminalization of prostitution should take heart from the Himel decision because it has already rejected such ideology in favour of evidence. Unless higher courts are dominated by conservative ideologues, we should expect prostitution to be decriminalized across Canada within the next few years, based on the clear and compelling evidence that the laws endanger sex workers.
Joyce Arthur is a founding member of FIRST, a national feminist sex worker advocacy organization based in Vancouver that lobbies for the decriminalization of prostitution in Canada. She works as a technical writer and pro-choice activist.
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