Decriminalization or depoliticization? Ontario court's decision on prostitution

Photo: Gregalicious/Flickr

One of Ontario's big news stories this week is the Ontario Court of Appeal's decision to amend laws on "keeping a common bawdy house" and "living on the avails of prostitution," reversing the Superior Court's decision to scrap the "communicating" law. (That this coincides with the province's proposed decimation of the public sector is an irony not to be overlooked.)

In short, prostitution has been removed from the definition of "bawdy house," decriminalizing indoor prostitution. The "living on the avails" law has been clarified to criminalize only exploitative relationships. But the law against "communicating in public for the purpose of prostitution," or street solicitation, has been reinstated, maintaining the criminalization of some of the sex industry's most targeted workers.

I want to celebrate the tremendous work of the plaintiffs in the Ontario decriminalization case, as well as the courageous, tireless work of sex worker activists and allies nationwide. I also want to celebrate the work of indoor sex workers. While I am disappointed by the court's decision, it is not because I don't recognize decriminalization as something indoor sex workers need and more than deserve. I am also quite aware that with decriminalization efforts under attack from both regressive and feminist angles, it's risky to critique any form of decriminalization. That said, what I advocate for is the decriminalization of all sex work. That is, the removal of all punitive responses designed to eliminate prostitution. That's not what the Ontario courts have given us, and it's their decision I want to discuss.

Taken on their own, the decriminalization of indoor prostitution and the clarification of the anti-pimping law are good things. But, as Kara Gillies points out in a press release from Maggie's: The Toronto Sex Workers' Action Project, anti-prostitution laws work together as a system for regulating prostitution. Where the plaintiffs argued that sex work should not be criminal, the court's decision is better understood as "sex work should not be public." Making this distinction can help us understand how the decision reflects a political climate that marginalizes the poor, trans and gender-nonconforming women, and Indigenous women; reproduces the stigmatization of outdoor sex work that has been useful for promoting urban neo-liberalization; and makes apparent the risk that sex workers' politics may be co-opted by dominant culture.

Two-tier decriminalization

Because the court's decision leaves the communicating law intact, little will change for sex workers who encounter the criminal justice system. Nearly all prostitution-related arrests are for communicating; state violence against prostitutes will continue as before. Outdoor sex workers will be forced to continue to rush transactions with potential clients, work in isolated areas and, in order to avoid attracting public attention, work with less company and protection from colleagues than they might like.

Of course, no safety measures are 100% effective against violence -- and it's absolutely true that the only people responsible for violence are the ones perpetrating it -- but for outdoor sex workers, the resources they gather and their efforts to make themselves safe within often-terrible, often-inescapable conditions are essential and life-saving. While decriminalizing indoor sex work may provide limited incentive to move off the street, it does nothing to assist those who can't rent a worksite, don't know how to advertise or work indoors, or don't want to lose touch with friends, regular clients, or other community contacts by moving. Like everyone, sex workers depend on access, education, and community for survival, as much as on their income.

In the 3-2 decision, the dissenting judges nailed it: "putting aside the fiction that all prostitutes can easily leave prostitution by choice or practise their occupation indoors, the communicating provision closes off valuable options that street prostitutes do have to try to protect themselves."

As a talking circle hosted by the Aboriginal Sex Workers Education and Outreach Project at Maggie's wrote in their statement on Indigenous sex work, individual violence, community violence and the criminal justice system, as parts of the ongoing projects of colonization and genocide, all disproportionately target Indigenous sex workers. Colonization has been accomplished, in part, by making people think sex is shameful, by granting the state control over Indigenous bodies, by validating violence against sex workers, and by refusing to acknowledge Indigenous people's capacity to make decisions about their own lives.

Indigenous sex workers at Maggie's emphasize their contributions to chosen family and community, and their sex work as a contribution to culture. Sex workers are already members of our communities: our neighbours, friends, families, service providers, and customers. They enrich our communities both as sex workers and in the myriad other roles they take on. The courts have decided that the harm done to outdoor sex workers is the cost of protecting communities from the harms done by sex workers. But sex workers are members of our communities; therefore, harming sex workers harms our communities.

Public communication, public sex

In the court's description of the "harms" of prostitution, judges note "the harmful effect of the open display of prostitution on bystanders." The harm of increased violence against sex workers is outweighed by the harm of seeing them. Not in the euphemistic way of "seeing someone" -- but in the literal sense of seeing them with our eyeballs. This is a fucking ridiculous idea.

Images of sex workers are useful -- but to whom? University of Manitoba's Shawna Ferris describes "The Lone Streetwalker" as a faceless woman, alone on a dark street, "flaunting" her own and others' safety, helping to produce the seedy landscape of urban decay -- an icon heavy on symbolism and light on reality, but one with a lot of capital in popular discourse. The iconic prostitute is trotted out in movies and television, news media, and urban revitalization rhetoric, whenever it must be established that a neighbourhood is gritty, crime-ridden, or dangerous. In some spaces -- in downtown Vancouver, for instance, coinciding with the Pickton murders -- scapegoating and displacement of sex workers by gentrification boosters is relentless. The moral panic generated by this pervasive icon has been an essential element of the production of public consent to urban neo-liberalization.

The displacement of sex workers, along with panhandlers, racialized youth, people with visible disabilities, and people who appear to be homeless, is a part of creating urban environments that cater to increasingly wealthy residents. Queers in particular are implicated in gentrification: we're understood as both a hip addition to the landscape and a target market demographic for the marketized urban lifestyle. As more space is reconfigured to suit business interests, public space shrinks. There is less space available to "just exist" and what there is, in the name of family- and business-friendliness, is not available for public sex.

The threat of co-optation

The eschewal of public sex is part of a political agenda to eliminate sexuality as a site of resistance. U.S. conservative Andrew Sullivan has long advocated for gay marriage, arguing that marriage is "prepolitical." If gays and lesbians (a pointedly exclusive group) had the same marriage rights as heterosexuals, he argues, they would be less likely to see their sexualities as political identities. Fewer queers would engage in queer radicalism, and those who did would be the queers experiencing the most marginalization, with the fewest resources available for fighting back. Thus, "common sense" neoliberal politics could prevail without resistance from gays and lesbians. The parallel to the two-tier decision on decriminalization is obvious.

When I asked for input on this article, Maggie's Communications Coordinator told me she's "concerned about co-optation. Indoor sex workers will be offered (and could even propose) solutions that do nothing to assist the lives of street workers and workers without [immigration] status." Even for indoor workers with citizenship rights, the question of what kind of employees we will be is complicated (see Pivot Legal Society's Beyond Decriminalization). Strippers and porn workers get little protection under labour laws, despite their entitlement to it as legal workers. In fact, most are independent contractors, and independent contractors in any industry have few rights. With the clarification of "living on the avails," we also have an opportunity to ask what kind of employers will sex workers be? Will we create decent working conditions for our newly legal bodyguards, receptionists, and drivers?

But most importantly, under the new sex work laws, we need to ask what kind of public newly mainstreamed indoor sex workers will be. The majority of prostitutes -- the 80-90% of prostitutes who are indoor workers -- have a chance to become a part of the mainstream economy, to be good neighbours and responsible business owners, taxpayers, entrepreneurs, citizens. But if we do, we do so within the sexual and cultural politics of neoliberalism, in a climate in which communities are a source of violence against sex workers.

Indoor sex workers deserve decriminalization, but as far as the decision is an invitation to join the "prepolitical," as statements expressing disappointment about the communicating law from Maggie's, Chez Stella, SPOC, and Pivot attest, sex workers aren't buying it.

Sarah M. is a student in the Master of Arts - Integrated Studies program at Athabasca University, a sex worker, and a sex workers' rights advocate. Her analysis is learned from collaboration and conversation with her sex working, activist, and academic communities. Sarah can be contacted at .

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