The Protection of Communities and Exploited persons act, Bill C-36, passed in the House of Commons last week. The vote was 156-124. The bill follows a Supreme Court decision in December, which ruled that several provisions in Canada's prostitution laws were unconstitutional.
Bill C-36 is based on a belief that sex workers are universally victimized, yet many of its provisions will contribute to sex workers' rights violations.
The idea that sex work is inherently exploitative is being used to justify criminal laws that deny or ignore sex workers' right to security of person.
Criminalizing clients just doesn't work
According to the Department of Justice's Technical Paper the Bill's "overall objective is to reduce the demand for prostitution with a view to discouraging entry into it, deterring participation in it and ultimately abolishing it to the greatest extent possible." The goal of abolishing sex work is very different and is incompatible with the goal of protecting sex workers' safety because many of the provisions that seek to eradicate sex work also put sex workers at greater risk.
The provision that criminalizes clients (section 286.1), for example, is intended to abolish sex work. While it is unlikely that a new law will eradicate the sex industry, it will make it more dangerous for sex workers. The criminalization of clients will push sex work further underground and will make it harder for sex workers to screen clients.
In Vancouver the Police Department has already shifted away from arresting street-based workers and instead targets clients. A recent report, "My Work Should Not Cost Me My Life: The Case Against Criminalizing the Purchase of Sex in Canada," demonstrates how this approach makes it harder for sex workers to take safety measures by displacing them to isolated and unfamiliar areas and encouraging them to work alone to avoid police detection.
The report shows how criminalizing clients makes screening harder because street based sex workers have less time to assess potential clients before they enter their cars.
And, even though criminalizing clients means police are still able to respond to violence against sex workers police do not have a good record of responding to sex workers who seek help. For example, the Vancouver Police Department's failure to seriously address the missing and murdered women in the Downtown East side is one of the most well-known examples of police negligence.
According to a report by an Ottawa-based sex worker organization, Challenges: Ottawa Area Sex Workers Speak Out many sex workers also face violence and harassment from police officers.
Policing clients creates an adversarial relationship between sex workers and the police and makes it harder for sex workers to access social services.
Sex workers as villians and victims
The Bill claims to view sex workers as victims, yet it also considers sex workers as threatening to communities. It's very difficult to think of another group that is considered both victims in need of state protection and as threats to the community to be contained by the state.
The new communicating provision section (213(1.1)), helps to illustrate the way the government has prioritized their vision of community safety at the expense of sex worker safety. The new communicating law makes it illegal to communicate to buy or sell a sexual service in public where "persons under the age of 18 can reasonably be expected to be present." Since persons under the age of 18 could be in most public places this law effectively criminalizes street-based sex workers.
A criminal record creates numerous hardships. For example, a criminal record makes it more difficult for those who want to leave the sex industry because many companies and volunteer organizations require a criminal background check.
Sex workers with a criminal record may be excluded from a range of jobs from social work to health care.
Not only does section 213(1.1) mean that street-based sex workers will continue to be criminalized, it will also make it difficult for them to screen clients, negotiate the terms of their transactions, including safer sex practices, and will push street-based sex work into more isolated places where it is harder to get help if needed.
The most visible and marginalized sex workers will continue to be over-policed and under-protected by the laws in Bill C-36.
No third party for you!
The new "receiving a material benefit" (section 286.2) also puts sex workers' right to security of person in jeopardy. While the new "receiving a material benefit" law includes a number of exemptions for people in "legitimate living arrangements" with sex workers, the criminalization of most third parties means it will be impossible for sex workers to work in safety and security since most of the people who work with them, like security personnel or administrative assistants, could still be prosecuted.
A report intended to help sex workers better understand the new laws, "Reckless Endangerment: Q & A on Bill C-36: Protection of Communities and Exploited Persons Act," notes the receiving material benefit law "would effectively maintain all the previous barriers to hiring third parties who might enhance sex workers' security, barriers the Supreme Court already found unconstitutional."
The new "receiving a material benefit" law will apply to anyone who knowingly works in a place where sex work takes place. For example, The Department of Justice Technical Paper says that bouncers who work at strip clubs and "know that prostitution takes place there" would be caught by the receiving a material benefit law. Bouncers play a key role in ensuring safety and security at strip clubs and yet they could face prosecution under these new laws.
Criminal Laws, like C-36, fail to address social and economic issues, like inequality and poverty. Instead, Bill C-36 treats anyone involved in sex work as though they are a social problem and ignores sex workers' right to security of person.
Cheryl Auger's writing appears in Selling Sex: Experience, Advocacy, and Research on Sex Work in Canada (UBC Press) and Negotiating Sex Work: Unintended Consequences of Policy and Activism (University of Minnesota Press). She is a Ph.D. candidate in Political Science at the University of Toronto and a member of the Canadian Alliance for Sex Work Law Reform.
Photo: flickr/A Yee