Photo: flickr/Kaytee Riek

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I recently asked whether the vague definition of “sexual services” and definition of the Internet as a public space could be used to make the anti-prostitution Bill C-36 ban pornography somehow. Regardless of how one feels about porn, such a thing would certainly require a debate, and it’s a question worth asking.

That is, however, speculative. The bill itself contains many clearer aspects that have sparked outrage from sex workers, and occasionally even from abolitionists as well (though the objections vary).

The Canadian government’s public consultation on sex work — which sex worker advocates felt had been slanted to try to sell the “Nordic Model” of anti-prostitution law — was reported to have shown that a majority of Canadians want the selling of sex to be legal for the sake of the people who engage in it, but a mix (slight majority) of Canadians support criminalizing the buying of sex.

Apparently Justice Minister Peter MacKay decided that meant that Canadians wanted sex work criminalized in such a way that sex workers wouldn’t always be technically charged, but it would be otherwise made totally impossible to work legally and safely. Rather than honour the safety concerns raised by the Supreme Court of Canada, the Harper government has actually exacerbated the situation in hopes of forcing sex workers into exit programs.

“The purchase and sale of sex has never been illegal in Canada,” MacKay said explicitly. “That changes today.”

It is, of course, the government’s hope that by completely criminalizing sex work, the Supreme Court of Canada’s argument — that anti-prostitution laws do harm to sex workers by preventing them from working safely — becomes irrelevant. Courts never concern themselves with whether circumstances are made safe enough to commit a crime. And that’s why it has decided to criminalize the buying of sex in addition to re-criminalizing everything that was struck down (with a few narrow exemptions for sex workers themselves)… and throw in some new restrictions for good measure.

(It’s alleged that an unpublished Ipsos Reid poll reportedly contradicts this government position, but the results of that poll are being withheld)

Pivot Legal Society has condemned the bill:

This cynical, dystopic model does not resolve the problems found by the Court in Bedford to be unconstitutional, and adds new ones such as the prohibition on advertising. The Charter rights engaged by this proposed law include life, liberty, security of the person, freedom of expression and equality. Arguably all are breached.

This is not the “Nordic” approach, nor is it a Canadian variation on the “Nordic” approach. It is an unconstitutional variation of our broken laws that impose more danger, more criminalization, and fewer safe options, contrary to the requirement of the Supreme Court of Canada to address these dangerous and ineffective laws.

This made in Canada model will lead to continued epidemic of violence against sex workers in Canada…

What the bill does:

1. Sellers are not criminalized or targeted… except when they are

It’s claimed that Bill C-36, the Protection of Communities and Exploited Persons Act, targets buyers of sex but doesn’t target those who sell it. That is incorrect. Sex workers can absolutely be charged:

  • if they work in the presence of sex workers under 18 years of age — even if they’re under 18, themselves;
  • if they work at home where children reside, if it’s asserted that the children are being negatively affected (and what about having to go visit grandma all the time… is that a negative effect?) — more on this in a moment; and
  • if they communicate in “a place where persons under the age of 18 can reasonably be expected to be present,” stop traffic, etc. (the penalty for this could be up to five years in prison)

The mixed signals on charging sex workers opens up some ability for law enforcement to use the potential for charges (and the lack of clarity on what is legal) to manipulate people. This could result in the threatening of charges in order to intimidate a person into incriminating themselves or incriminating others (perhaps even falsely, in order to escape trouble). This lack of clarity could also be used to scare people into pleading guilty (regardless of whether it’s true) to seeming lesser charges, in order to escape risking more frightening legal possibilities.

Regardless of the exemptions included in the bill, there are still institutional barriers to keep sex workers from receiving assistance from police or communicating with them with confidence. For example, the search and seizure powers make no exemption for sex workers themselves. Even if they can’t be charged for advertising their own services, what’s to stop police from seizing their computers and targeting their current and past clients in one fell swoop? It’s incredibly naive to think that the rapport between law enforcement and sex workers would be improved in any way by this law.

Could the legislation affect access to social services as well, if those services aren’t specifically exit-related? Or custody of children? Even if a sex worker cannot be charged for advertising sexual services in a particular situation, might it still violate a lease by being classified as a criminal act? The implications are uncertain.

2. Communication

The law against “communicating for the purpose of…” — which put sex workers in unsafe situations by limiting their ability to screen clients and negotiate — is back, and is actually made more restrictive by applying it to “a public place, or in any place open to public view, that is or is next to a place where persons under the age of 18 can reasonably be expected to be present.” That last part is key: a minor doesn’t actually have to be present, there only needs to be an undefined reasonable expectation (and it will be up to the courts how widely that can be interpreted). Your car could be a public place.

In the case of sex workers who have children, even if their children can be kept unaware of their parent’s pursuits and are never present when they see clients, does their home become a “public place?”

It’s still never safe for buyers to communicate to buy sex, but where does it become safe for a sex worker to communicate to sell sex? If they can only communicate from home and without the use of the Internet or public spaces, well, that certainly complicates things. Bill C-36 distinguishes itself by targeting indoor sex work so that it becomes impossible to engage in safely, even if you’re the sex worker who is supposed to be exempt from the law.

A bar is still a public place, but it’s not “a place where persons under the age of 18 can reasonably be expected to be present.” So it’s legal-ish or closer to legal-ish, and the penalties for anyone caught are smaller. So now, the Harper government has made sex workers safer by pushing them into darkened spaces with clients who have been drinking.

But at the same time, there is a disincentive for bar owners to allow sex workers to communicate on their premises, for fear that it could be claimed that the bar or management might be materially benefiting from the presence of sex workers in some way (i.e. increased sales and patronage). So then there is a constant harassment of anyone in a bar who is suspected of being a sex worker.

By tactical reasoning like this, it becomes a strategic minefield in which people are forced to take more chances, and place themselves in the spaces of people they wouldn’t normally trust, simply because those people are likewise willing to take the risk of associating with them.

Communication can’t be understated. If one can’t take the time to negotiate clearly, has to speak in code to avoid detection, and has to resort to an imply/infer scenario, then it makes it impossible to screen clients to see how agitated they might be, creates an automatic mutual distrust between workers and dates, and makes it hard to set limits about what types of sexual act one is or isn’t willing to perform. This was a key issue at the heart of the Superior Court of Ontario and Supreme Court of Canada rulings that originally struck down the three anti-prostitution laws replaced by this bill.

3. The bawdy-house rules

The ban on “common bawdy-houses” is back, with the bawdy-house defined as a place “for the practice of acts of indecency, a place that is kept or occupied or resorted to by one or more persons.”

This targets massage parlours (if sex is exchanged) and strip clubs (if sex is exchanged). Additionally, if a sex worker keeps a separate address to work from, it’s considered a bawdy-house. So now by law, sex workers can only work from their homes. Because it’s oh so much safer for everyone to know where you live.

Of course, one can imagine the condemnation that’s going to be heaped upon sex working mothers who work under the same roof that their children live under, regardless of whether the kids are ever actually present when anything is happening. But the law actually pushes them to do that.

Sex workers sometimes share a separate address, or prefer to work in places like massage parlours or strip clubs, so they can work together for mutual safety. Under this law, that’s not a legal option.

4. What constitutes a material benefit from the sale of sex?

“Living off the avails…” returns as “receiving a material benefit that derives” from the sale of sex. It does provide an exemption (subject to interpretation) for some people who live with sex workers, provided that nothing can be construed as an exploitative situation and no drugs are provided to the sex worker:

… evidence that a person lives with or is habitually in the company of a person who offers or provides sexual services for consideration is, in the absence of evidence to the contrary, proof that the person received a financial or other material benefit from those services…” except “in the context of a legitimate living arrangement with the person from whose sexual services the benefit is derived…

How that will be interpreted remains to be seen. It’s not entirely clear if this provision targets assisting arrangements from referrers, drivers, bodyguards, associates and other business partners, if something beneficial (not necessarily cash) is exchanged. The Justice Minister says it’s up to interpretation of whether the associate is exploitative in any way. Sometimes, the practical application of something like this is to arrest all, use the law to maximum advantage and let the courts worry about whether or not a situation is exploitative, after the fact.

Escort agencies, massage parlours (if sex is exchanged) and strip clubs (if sex is exchanged) are all banned by this provision, with a potential sentence of up to ten years in prison.

5. The new ban on all advertising of sexual services

This bill reaches further than anything previous, by banning all advertising of sexual services. Anyone who knowingly provides a space in which to advertise (whether in newspapers, online message boards, websites or any other form of media) can face fines or imprisonment.

Beyond the obvious questions about freedom of speech, this raises other questions. How much legal responsibility does an Internet service Provider (ISP) shoulder if sexual service advertising is accessed through its networks? What steps does it need to do to avoid legal action, and how engaged will ISPs need to become in tracking such advertising? Does this raise questions for other areas of privacy and freedom of speech for Canadians? When I asked if C-36 might ban porn, one of the lines of reasoning was that the threat of legal action could push ISPs into instituting arbitrary and overly broad content filters, just to be safe.

And finally, is the Internet a public place? MacKay explicitly referred to online advertising, so that would seem to mean that it is interpreted that way in the law. And while it’s said that sex workers would not be charged for advertising their own services, if the Internet is widely interpreted as a public place “where persons under the age of 18 can reasonably be expected to be present,” that exemption for them might not apply to Internet advertising.

It could almost end up working like entrapment.

Tomorrow: Conflating sex work and human trafficking

(crossposted to DentedBlueMercedes. Concerned about progressive media in Canada? Support rabble.ca!)

Photo: flickr/Kaytee Riek

Mercedes Allen

Mercedes Allen

Mercedes Allen is a writer, graphic designer and former activist living in Southern Alberta.