The new prostitution bill introduced in June by Injustice Minister Peter MacKay is blatantly unconstitutional and will result in more dead women. Bill C-36 will harm sex workers in even worse ways than the previous criminal provisions that were struck down as unconstitutional by the Supreme Court of Canada in December.
Those laws prohibited various activities related to sex work, including communicating in public, operating or working in a brothel and living off the income of a sex worker.
Bill C-36 brings back all of the previous criminal laws in somewhat different forms, and adds new offences. One is a sweeping ban on advertising of sex work that will make it almost impossible to work indoors where it's safer, while another will criminalize the purchase but not the sale of sex, in a nod to Sweden's law. But sex workers will still be criminalized in other ways.
The government appears to believe that changing the objectives and rationale for the prostitution law will somehow immunize the new law from constitutional problems.
The old objective was to protect communities from the "nuisance" of prostitution. The new objectives (contained in the Preamble to Bill C-36) are mainly about "denouncing" sex work and protecting sex workers from the "inherent exploitation" of prostitution.
On July 7, the Standing Committee on Justice and Human Rights will begin to hear witnesses and review briefs in response to Bill C-36.
On behalf of FIRST Decriminalize Sex Work, a feminist group that advocates for the rights of sex workers, I recently submitted a brief to the Committee critiquing the Preamble to the bill. Following are some of the criticisms from the FIRST brief, which exposes the ideological bias, false assumptions, and sexist paternalism that underlie the bill:
Whereas the Parliament of Canada has grave concerns about the exploitation that is inherent in prostitution and the risks of violence posed to those who engage in it;
The idea that exploitation is "inherent" to sex work is an ideological belief derived from right-wing religious groups and "radical feminist" activists who morally disapprove of prostitution and want to abolish it. Sex work is a job, and like any job, people often take it to earn money, not necessarily because it's something they want to do. But it's still a choice for most sex workers and many do value their work. It's often overlooked that sex work is about much more than sexual services, and also commonly involves counselling, therapeutic healing, massage, intimacy, socializing, companionship and other aspects that occur normally in human relationships.
Many sex workers work independently and are skilled entrepreneurs, while others prefer to be employed by or have a contract with an agency, which frees them from managing the administrative and business side. This should be their choice, but Bill C-36 will force all sex workers to work independently, on the assumption they are "exploited" by the job and by employers. We know from the media around the bill that the government's biggest concern is around "protecting women." This reveals the paternalistic and anti-sex basis of Bill C-36, since no other profession is criminalized in this way, and significant numbers of sex workers are male or transgender.
While purporting to discourage prostitution and help exploited sex workers, the bill actually reinforces the same social structures that support and stigmatize prostitution in the first place -- the division of women into "good girls" and "bad girls," the taboo against sexual promiscuity or even sexual pleasure for women, and the demonization of men and their sexuality.
Whereas the Parliament of Canada recognizes the social harm caused by the objectification of the human body and the commodification of sexual activity;
The government might as well say that sex itself causes social harm. Sex naturally involves the "objectification of the human body" to at least some degree. An integral part of sexual attraction is to feel physical desire based on a person's physical attributes and gender characteristics. Part of what makes sex exciting for people of any gender is the objectification of each other's bodies.
Of course, sexual activity is highly variable, ranging from an expression of deep love in a committed relationship, to a casual encounter between strangers. But sex is also a commodity, as can be seen everywhere in modern media and advertising. Most sex has at least some transactional elements attached to it. Patriarchal marriage is historically based on the requirement for women to stay sexually monogamous with one man and produce babies for him in exchange for economic security. To this day, there's still a stigma against promiscuous women. What radical feminists and the drafters of Bill C-36 seem to be objecting to is the refusal of women sex workers to remain within traditional sexual boundaries. The bill is simply another iteration of the ancient impulse to control women and their sexuality.
Whereas it is important to protect human dignity and the equality of all Canadians by discouraging prostitution, which has a disproportionate impact on women and children;
It is naïve for the Conservative government to believe that any criminal law will discourage or reduce prostitution. No society has ever been able to eliminate prostitution because sex is a basic human urge. Everyone should be entitled to a satisfying sex life, not least because it has many health benefits.
However, many people are unable to satisfy their needs with a regular partner or "free" recreational partners. Conservatives may believe that sex outside marriage is immoral, but human sexuality cannot be repressed or restricted, at least not without harming the society and the individual. Sexual satisfaction appears to reduce anxiety and aggression, as shown in studies that found pornography reduced rape. Similarly, it's likely that prostitution serves as an important safety valve for society, reducing crime, saving marriages, and promoting social stability.
Although the phrase "women and children" is commonly used in our language, it's unfortunate because it infantilizes women as if they need special protection like children. The phrase acts to deny women's independence and their ability to take responsibility for themselves. But women are free adults with full constitutional rights, not a sub-class of people who need to be saved from their own decisions.
Whereas it is important to denounce and prohibit the purchase of sexual services because it creates a demand for prostitution;
The wish to suppress "demand" for prostitution comes straight from the Bible of radical feminists. Their ideology treats women sex workers as "victims" with "no choice," and demonizes men and male sexuality. When radical feminists say women sell "themselves" or their "bodies," they reduce women's entire worth and identity to their sexuality. When they say men "demand" sex and "exploit" women to get it, they cast men as predators whose destructive sexuality must be controlled, while women's sexuality requires societal intervention to prevent it being sullied. These are patriarchal and sexist beliefs that reinforce the gender divide by erecting an even higher and more hostile wall between the sexes -- also evidenced by how radical feminists tend to "other" and demonize transgender people.
Bill C-36 is actually quite breathtaking in its full-fledged return to Victorian mores, as if the government thinks it can roll back the sexual revolution of the 20th century and put everyone back on the "straight and narrow," especially women. The only thing missing from the bill is a clause requiring sex workers to wear chastity belts.
But wait… there is a chastity belt, of sorts. Bill C-36 will put sex workers' bodies under lock and key because customers will be legally prohibited from accessing them. In other words, the bill itself is objectifying and commodifying women's bodies in the service of moral purity.
Of course, the government's objective is to discourage prostitution, and it claims that the purchase of sexual services "creates a demand for prostitution." Actually, the purchase of sex is motivated by unmet sexual needs, so what it "creates" is sexual satisfaction, which in turn leads people to want sex again and again. Those things are apparently what the Conservative government wants to discourage. Bill C-36 is fundamentally an anti-sex bill.
And whereas the Parliament of Canada is committed to protecting communities from the harms associated with prostitution;
This objective brings back the original rationale for the prostitution laws, to prevent "nuisance" in communities. Once again, sex workers will be targeted by the police, stigmatized by the public, and pushed into isolated areas where it's more dangerous. The sentiment behind the objective is that prostitution should be invisible -- which is precisely why dozens of sex workers were brutally murdered on a pig farm in Coquitlam B.C.
Sex work is a fact of life, and sex workers are an integral part of our society. They perform an indispensable public service and contribute much to our economy. Many thousands of Canadians are sex workers and they are regular human beings who need safe places to live and work like any other person. You probably have friends, neighbours, or co-workers who are sex workers or used to be, and you don't even know it.
Instead of denying these facts, or acting horrified at the thought of sex workers "plying their trade" in public or in the house next door, how about we just get used to it? How about we start respecting sex workers and give them the rights and recognition and dignity they deserve? Sex workers should be more visible, not less visible. That's the only way to reduce stigma and improve their safety.
It's sex workers who need protection from harms inflicted by communities, not the other way around. Bill C-36 not only denies them that protection, but gives license to the police and public to persecute and isolate them.
Bill C-36 is really about controlling and punishing sex workers and their clients. Let's not forget that thefederal government's position in the Bedford case was that sex workers themselves are responsible for the risk of violence they face because they choose to enter a risky profession. Nothing has changed with the introduction of this bill and its dishonest objectives (which suddenly pretend that sex workers don't choose their profession).
Bill C-36 manages to be both paternalizing and punitive towards women because it is a reflection of the ancient Madonna/Whore dichotomy. Under this law, "good girls" will be saved from exploitation by leaving prostitution, and "bad girls" who stay will be punished and subjected to stigma, arrest, and violence. The law and its proponents are unconcerned with male and transgender sex workers, who might as well not exist.
Bill C-36 is an utter hypocrisy and a travesty of justice on every level. The bill should be scrapped entirely. Instead, Parliament should completely decriminalize sex work and allow sex workers to access the protections of labour law and criminal law like all other workers and citizens. For the most marginalized minority, including trafficked victims and survival sex workers on the street, existing laws already prohibit trafficking, coercion, underage prostitution, exploitation, and violence.
The government has no place in the bedrooms of the nation. It's wrong to use the criminal law to control or punish adults for engaging in consensual sex, simply because their sexual choices offend the morality of certain interest groups. Homosexuality and birth control was decriminalized in 1969. Abortion was decriminalized in 1988. Gay marriage was legalized in 2005. It's finally time for sex work to be decriminalized too.
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.
Photo: flickr/Silviya Rankova