Decriminalization of sex work and the Bedford case in Supreme Court: What it's all about

| June 13, 2013
Emily Symons addressing a rally Thursday outside the Supreme Court.

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In 2007, three current and former sex workers launched a constitutional challenge ('The Bedford case') of three Ontario laws that criminalize various aspects of sex work and make it very difficult to engage in sex work safely. The applicants were Amy Lebovitch, Terri-Jean Bedford and Valerie Scott.

While the exchange of sexual services for money is not in and of itself a crime in Canada, these three laws make most sex work a criminal activity, and the workers argued that they impacted upon the rights to security of the person, which is protected under the Canadian Charter of Rights and Freedoms.

The initial court agreed: Justice Susan Himel struck down all three laws. The government appealed the ruling, and in 2011 the Ontario Superior Court issued a mixed ruling. Now, both sides (the three women, and the governments of Ontario and Canada) have appealed the ruling to the Supreme Court of Canada, which will hear the case today and issue a final judgement in the coming months.

The position of sex workers' rights organizations arguing for decriminalization -- for these three laws to be struck down -- is that they are not looking for the state to protect them, but instead to be allowed to adequately protect themselves from potential violence involved with the work. The following analysis was presented by Emily Symons of POWER  (Prostitutes of Ottawa/Gatineau: Work, Educate, Resist) at a community teach-in in Ottawa on Saturday, June 8, as part of a national day of action in support of decriminalization and in solidarity with sex workers.

The law prohibiting public communication about sex work accounts for approximately 95 per cent of all prostitution charges in Canada, and primarily affects street-based sex workers. There may be approximately 10 per cent of all sex workers that do street-based sex work, and they are the most marginalized and disproportionately come from marginalized populations.

This law stops sex workers from not only discussing how much they charge for their work, but more importantly from negotiating consent and boundaries in their work. There are three main ways that decriminalization advocates say this law unfairly forces sex workers to choose between their liberty from imprisonment and charges, and the safety/security of their person from violence: it affects their ability to assess clients, to work in safer (well-lit and well-populated) areas, and to work in groups or pairs. When the street-based sex workers fear being taken up in a street "sweep" they are forced to work alone, in isolation, and jump into a car as quickly as possible.

The 'bawdy house' law (against having a location that is regularly used for sex work) was the same law that was employed against gay male bathhouses in past decades. It primarily applies to indoor locations, but can also apply to a specific place outdoors that a sex worker repeatedly uses for their work.

The decriminalization argument is that this law attacks the ability of sex workers to have a safe and secure work location, where they are in control of the space, can limit the possible dangers, and employ safety protocols. The law also limits their ability to work with other sex workers as it would potentially draw more attention to their work. Additionally, it puts undue priority on 'customer satisfaction' (thus ensuring unfair bargaining positions) as clients are in a position to call police on the sex workers and face no sanctions themselves once they have left the premises.

As well, decriminalization advocates say this law also puts sex workers' housing at risk, as landlords must evict sex workers as soon as they become aware of what is being done in the premises, or else face criminal penalties themselves.

The law about 'living off the avails of prostitution' is seen by those in favour of decriminalization as a paternalistic law that treats sex workers as unable to take care of themselves. General laws already exist to deal with the problems of extortion, forced labour, theft and rape, and other professions don't have specific laws that deal with their labourers being exploited.

They see this law as putting both professional and personal relationships of sex workers at risk. Personal assistants, bodyguards, drivers, accountants and other such positions hired and paid for by sex workers can all be criminalized under this law which is supposed to focus on stopping exploitative and/or forced labour. And someone living in shared housing that is paid for out of a sex worker's income is also put at criminal risk.

Sex workers' rights advocates say all three of these laws serve to drive sex work more underground, where the exploitation of sex workers is more easy and likely to occur. They also feel that the laws put sex workers at risk of predatory violence because predators know that sex workers are less likely to report to the police, and that it is less likely sex workers will be believed or that they will have the violence against them taken seriously.

Overall, the view is that criminalizing sex work leads to a greater risk of situational violence, as well as impacting upon harm reduction. Sex workers become less able to clearly communicate, to access police services, and to screen their clients -- while sex workers cannot necessarily judge whether a potential client is going to be violent, having more time to adequately assess the person can help, and when the work is criminalized, sex workers will be most focused on assessing whether the person is in fact a cop, not whether they seem okay to work with. And due to aspects of criminalization, sex workers can be forced to choose between health (condoms, safer drug paraphernalia) and their liberty.

The 'Nordic model' that originated in Sweden, which criminalizes buyers of sexual services instead of sex workers themselves, also causes harm, in the view of decriminalization advocates. Clients will have a disincentive to report instances of exploitation to police because they might end up being charged themselves as customers. This model also serves to lessen the ability to clearly communicate around consent and boundaries or to screen clients. And it takes away income opportunities for those making their livelihood from sex work, forcing them to work longer hours and lower their standards for safety and satisfaction.

Sex worker rights' advocates feel it is of primary importance that sex workers need to be listened to, and direction taken from them, as society looks at how to deal with the issue of sex work. They feel the Nordic model was based on 'theories' of what is best for society and for those involved in sex work, theories that did not include the needs, desires and lived experience/knowledge of sex workers themselves. And they see legalization of sex work, an approach that involves new laws to govern and regulate the work, as a flawed approach that treats sex work as a vice that needs to be controlled.

Legalization has its own set of problems, they argue. For instance, in Nevada, sex workers are only permitted to do their work as part of a brothel, where they are forced to follow rules such as not being able to turn down clients, not being able to work independently, having to provide a significant portion of their earnings to management, and having to submit to mandatory STI testing. These are all impediments to real self-determination and human/labour rights.

Decriminalization advocates point to New Zealand as a successful example of what they would like to see happen, as decriminalization has been a reality since 2003. The official 2008 government report analyzing the effects of the first five years of that approach on various areas of sex work and its implications can be found here.

In advocating for decriminalization, and specifically in relation to the three laws under review in the Bedford case, the sex workers' rights organizations are saying that criminalization creates harms and negatively impacts the human rights to a greater or lesser degree for most if not all sex workers, no matter their level of privilege or satisfaction with the work. And they make sure to draw a major distinction between people engaged in sex work and those who are victims of trafficking, who are (or should be) protected by a different set of laws specific to those circumstances.

 

Greg Macdougall is a community organizer, educator and media freelancer based in Ottawa on unceded Algonquin territory. His website is www.EquitableEducation.ca

Click here for video highlights from the June 8 Ottawa Community Teach-In, featuring speakers including: Leslie Robertson (Galldin Robertson Law), Lindsay Blewett (POWER: Prostitutes of Ottawa/Gatineau: Work, Educate, Resist), Colleen Cardinal (Families of Sisters in Spirit), and Sean LeBlanc (DUAL: Drug Users Advocacy League Ottawa).

Further reading resources -- Stella, a community organization in Montreal created and run by and for sex workers, has produced a series of info-sheets in collaboration with allies to educate and mobilize around legal advocacy and decriminalization of sex work: 

 -The basics: Decriminalization of Sex Work 101

-Sex Work and the Charter

-Challenging Prostitution Laws: Bedford v. Canada 

-Language matters: Talking About Sex Work

-Ways to be a great Ally to Sex Workers (coming soon – at www.chezstella.org)

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Comments

How do you explain the fact that so many of the most marginalized women in the sex trade, those women working to secure their survival, disagree with you? That is, as opposed to Terri-Jean Bedford et al, who are not doing survival work?

"8. Sex workers are a diverse bunch. There is no one solution to creating safety and autonomy for all sex workers, given the very different social, economic and geographic realities in which they live and work."
- from Sex Work and Self-Determination: in solidarity with the Bedford case, by Sarah Hunt: http://becomingcollective.wordpress.com/2013/06/12/sex-work-and-self-determination-in-solidarity-with-the-bedford-case/

"We know that each of our experiences of the sex trades are unique, and there are no one-size fits all solutions. We are members of families and communities struggling to survive and make the best possible choices given the options available to us. For many of us, the truth about the sex trade is somewhere between a completely empowered experience of the sex trade, which requires only decriminalization to eliminate harms, and a completely harmful experience of the sex trade which negatively presumes all of us to be victims in need of “rescue.”"
- from No Simple Solutions: State Violence and the Sex Trades, by an INCITE! affiliate and collective of radical women of color, queer people of color, and Indigenous people who identify as people in the sex trades: http://inciteblog.wordpress.com/2011/04/22/no-simple-solutions-state-violence-and-the-sex-trades/

This article is a disrgrace.  A man writing a not-so-thinly veiled screed against anti-prostitution feminists presented as objective reporting...how progressive! Greg MacDougall totally mischaracterizes the abolitionist position.  What makes him an expert?  This is very shoddy journalism.  

MacDougall was also was among the so-called "leftist" men who thuggishly trolled a page a FB event page (Stepping Out of the Binary: a Critical Discussion on Prositution) for an abolitionist event in Ottawa, demanding that the panel be more "balanced."  MacDougall even repeatedly and aggressively demanded that one of the event organizers to define her relationship to the sex trade.  

You don't have to agree with the abolitionist position, but they deserve a safe space and not to be aggressively attacked by so-called "left-wing" men. Leftist men with a saviour complex should STFU. Feminism 101. 



 

hi Lord,

allow me to reply:

i attended a teach-in as a reporter, and i summarized the analysis of one of the speakers who in fact is a sex worker herself. that is what you just read in case you hadn't noticed.

in terms of 'thuggishly' 'torlling' - i did try to get some conversation going on a fb event that talked about wanting to have a constructive conversation (but that also dismissed decriminalization efforts in the event description), however they didn't want to have a constructive conversation, they rather just wanted to reinforce their own views ... and ended up deleting everyone's comments who disagreed with them, and turning it into an 'invite-only' event

in terms of asking (generally, and then specifcally with someone who replied to my post) about how these prohibitionists related to sex worker rights' advocates who are for decriminaliztion of their work and lives, yes i did ... it seems that the saviour complex happens when sex workers who advocate for their human rights are dismissed and unwelcome by some who choose to try and advocate for laws that will impact the most directly upon those very people ... so i thought it good question to bring up, but it was not welcomed or entertained, unfortunately

this article was not an attempt to define the prohibitionist argument, it was (as mentioned in the article, and as i hopefully cleared up earlier in this comment) a description (perhaps generalized) of the position and analysis that comes from sex workers' rights organizations and advocates, as was presented at a community teach-in in solidarity with sex workers and in support of decriminalization

It's not a prohibitionist argument, as in prohibition of alcohol, analogously. It's an abolitionist argument, as in the abolition of slavery, analogously ... and as even the Supreme Court of Canada recognized because they allow women to define the issue the wish to discuss and argue. Unlike some others. They allowed those who call themselves sex workers to define themselves as such also and to argue from that position. Kinda the basic respect idea ...

It's not a prohibitionist argument, as in prohibition of alcohol, analogously. It's an abolitionist argument, as in the abolition of slavery, analogously ... and as even the Supreme Court of Canada recognized because they allow women to define the issue the wish to discuss and argue. Unlike some others. They allowed those who call themselves sex workers to define themselves as such also and to argue from that position. Kinda the basic respect idea ...

... why i posted the 'language matters' info-sheet link at the bottom of the article, so people could think a bit more about the language being used

... i'm sure when this is done, there are going to be some people that don't think the Supreme Court is right

I stand by my "thuggishly trolling" comment which you repeatedly did on that page.  Your "I only wanted reasoned debate but they refused" response is classic mansplaining.

You also imply that all sex workers agree with you.  They don't.  There are many exited women that oppose legalization of prostitution and support the Nordic model.

http://aptn.ca/pages/news/2013/06/13/indigenous-women-divided-on-whether...

http://www.thestar.com/news/canada/2013/06/12/should_prostitution_be_leg...

Also it's shameful that Rabble seems to have classified this as "news."  It's an opinion piece.   

Lord, i find it rather telling that you consider rabble reporting on the position of decriminalization / sex workers' rights advocates to be a 'disgrace'

also, i think the two quotes/links i provided in the comments above do speak more to the complexities and different positions on this issue

Except you were the one who framed it as sex workers vs. "prohibtionists" (sic.)  I never said that all sex workers were abolitionists.

It's disgraceful that this article is presented as some sort of report, not an opinion piece, but it doesn't engage with the abolitionist arguments at all.

And it's rather telling that you use the term "prohibtionist." 

the court case is about whether the three laws violate sex workers' human rights as protected under the charter. the presentation that this article reports on gave a detailed analysis of how these laws are violating those rights, as well as breifly looking critically at some alternative approaches. the first judge fully agreed that the laws violated these human rights, and then the judges hearing the first appeal partially agreed. now the supreme court will decide. that's what this is about

Thanks for the great article Greg!

As for the objectors, if you don't like this article, write your own. Decrim advocates have no obligation to "engage" with the prohibitionist view, we have enough work to do explaining and defending our own view. As for "abolitionism" give me a break. You might as well try to abolish sex itself. You are working to prohibit it because it can't be abolished. Don't dump on Greg just because he's a man. That's sexist. He's obviously well-informed and has been listening to sex workers. Finally, thanks for admitting that only exited workers are prohibitionist. (athough I think there's only a handful of exited workers with that view). I suppose it's theoretically possible there's some active sex workers who are prohibitionist, but I have never met or even heard of one, and that includes marginalized and Aboriginal street workers. You should ask yourself why you're pushing "abolitionism" and the Nordic approach when virtually no sex workers want or agree with either. Listen to sex workers!!!

Yes!  What an absolutely sterling and most excellent article, Greg!

I think things need to be taken several steps further, and that it's rather unfortunate the Supreme Court isn't widening the scope of this to look at other types of employment, such as that for migrant workers, the homeless and children.

As I have modestly proposed many times as of late, it's obvious that these regulation-heavy, bleeding heart leftist hypermoralists are just out to stop economic growth and the burgeoning pornography and sex industries.  They simply fail to recognize -- or worse, ignore -- the physical and psychological resilience of people and also want to reject the fact that the only way for all of us to improve all of our lives is to be able to work on whatever terms we want, free of the heavy hand of the law.  

I see removing any criminal penalties as an excellent first step to removing all barriers to entry to the sex trade.  I also think parallel reforms are also critical.  We need to deregulate restrictions on migrant workers, and actually on workers generally.  I think sex workers ought to recognize and join their efforts with others who are economic cousins in this sense -- e.g. those who are opposed to minimum wages, opposed to union control of workforces, opposed to restrictions on how/when/where youth can work, and so on.   

There is no analysis of capitalism or patriarchy in this piece.  How does choice operate in a capitalist and patriarchal society?  We're supposed to think that exited workers "choose" to leave and the others "choose" to stay.  OK then...

wow mrselman, with all that dripping sarcasm i almost missed the part where you care about the lives, well-being, safety and human rights of people who engage in sex work

and Lord, good point - i didn't want to make this article too long, definitely there are more issues to be discussed, like people who compare abolition of sex work to abolition of slavery, what is their analysis of wage slavery and our capitalist system overall? i wonder if there's two sets of standards, one for sex work and one for all other work ... wondering what sets them apart, b/c definitely there are other labour fields that are also very gendered, but does the same analysis (and 'solutions') get applied there?

and ps thanks Joyce, good points!

"Lord"- in terms of choice, here's a good article from the perspective of abortion rights, but it applies equally well to choice in sex work too: http://www.spiked-online.com/site/article/13711/  Even constrained choices are choices. Survival sex workers make choices. Every choice we make is influenced and constrained by our environment (including patriarchy, capitalism etc.), it's not just sex work or abortion. We're never going to live in utopia anyway, that's why harm reduction principles are important.

hi Joyce, just want to maybe say something about the last part, i've heard from sex workers who have a problem with 'harm reduction' language ... and from my understanding, it is based on the view that 'harm reduction' basically says there is an undesirable activity going on, but that there's extra stuff surrounding it that makes it worse, and so if we reduce the extra stuff, that will be better but still not 'good' ... this is what leads prohibitionists to term their position 'harm elimination' as they frame it as sex work itself is a harm (that it is a form of violence in itself) whereas there is the other view that says sex work itself is a completely okay activity (at least, as okay as any other labour where you sell your sevices to an employer/client), and it is only the surrounding violence that is the problem (the violence that comes from the way society treats sex work, these laws being part of that)

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