In early March, the federal government announced with great fanfare that they would be expanding the Expungement of Historically Unjust Convictions Act. Introduced in 2018, the Act’s aim is to help people with criminal convictions, now considered human rights violations, erase those convictions from their records.
Crimes that fall under the Act are meant to right historical wrongs, such as convictions for buggery, and a myriad of other crimes whose primary aim was to punish LGTBQ+ people. In simplest terms, once upon a time, being gay was a crime. As a result, places frequented by queer people were under increased police scrutiny, and often raided.
Back then, such a conviction meant losing your job, your housing or your children, and becoming a pariah in “respectable” circles. Notice that currently sex workers face these very same consequences if charged with a sex work-related offence under our legal system.
The newest amendment to the Act includes an expungement for abortion-related crimes from the pre-R v Morgentaler era. It also allows for expungement of bawdy house-related convictions, which will be my focus today. For a brief moment on the day of the announcement, I understood that to include sex work-related convictions as well. I thought that perhaps the government was slowly inching towards the goal that sex workers are pushing for: decriminalization of prostitution in Canada.
Sadly, I was mistaken. Upon closer reading, I learned that sex work-related offences are specifically not included in the list of “crimes” eligible for expungement. Once again, a depressing but predictable pattern emerges. In 2017, when issuing a formal apology to the LGBTQ+ community, Justin Trudeau mentioned that he will work towards expunging bathhouse-related convictions.
In 2018, when the Act was introduced, bathhouses were kept off the list, and LGBTQ+ advocates were concerned that they were not consulted. Marginalized communities see this time and time again — heartfelt words of “we’ll do better” from politicians while the camera is rolling. But there is little follow up after they pay lip service to a progressive idea of justice. Let’s unpack this piece by piece, as it’s not only sex workers who are affected by this new legislation.
(I’ve written a previous column about the shared struggle of sex workers and the LGBTQ+ community, and what it’s like to be perceived as “unclean” and be banned from donating blood here.)
What is a bawdy house anyway?
First, what is a bawdy house? According to the law, a bawdy house is a place where prostitution might occur. So perhaps a saloon from the Wild West or a bordello of some kind. But historically, any venue that had nudity, racy films or other performances also theoretically fits the bill. Same with bathhouses, which were meeting places for LGBTQ+ folks to express their sexuality freely.
Is a strip club a bawdy house? On the surface, no, but in theory, it depends on if the performances are considered lewd or obscene. What’s obscene or lewd is often up to personal interpretation, which in turn leaves strippers at greater risk of scrutiny by law enforcement.
There are still cities in Canada where strippers can be charged with a version of these crimes. I can dance on stage with a fellow stripper, but we are not allowed to touch each other’s bodies. I’m not talking about a sex show, I’m talking zero contact. What this means is that there are places where I can lose my job and get a ticket from municipal bylaw for high-fiving or hugging my colleague on stage.
Back in the day, when cops used to do full-on raids of bathhouses and other venues used by the LGBTQ+ community, they would sometimes attach additional charges, so a person could be charged with prostitution in addition to anti-homosexual laws. “Back in the day” isn’t so far removed from today — bathhouse raids were happening well into the 2000s. Historically in Canada, tacking on prostitution-related offences was used by law enforcement to target vulnerable communities.
According to this logic, sex work might occur in a bathhouse. By the same token, every possible inn or hotel is such a place. There’s even a case from 1920 in which the Supreme Court of Ontario decided that the back seat of a taxi can be considered a bawdy house!
The laws about bawdy houses are convoluted and vague. I believe that this is by design. Anyone deemed to be having sex outside of social norms at the time was a potential criminal to target. This vagueness has a chilling effect on marginalized communities.
A mechanism of persecution and control
This brings us to Indigenous women, who were historically charged with vagrancy and prostitution-related offences, and who were convicted of these offences at much higher rates than white women. The Indian Act was used as a tool to control Indigenous women’s movements and bodies. For example, wigwams, which were used as homes, ceremonial spaces or sweat lodges, could, at the will of the Indian Agent, be considered bawdy houses.
These laws made criminals out of women who didn’t live in a nuclear family structure in the same way as settlers do. They lead to the assumption that Indigenous women are promiscuous, and we all know that in a heteropatriarchal society, promiscuous women are considered by many to be a target for violence and abuse. The consequence of a bawdy house charge meant that a woman could very easily be deemed an unfit mother. It was used by the state as a mechanism to separate Indigenous children from their mothers, and by extension, from their wider community and culture.
In a world where even the back of a taxi can be a bawdy house, everyone is a potential prostitute. Our former lawmakers despised sex workers so much, that like the more modern charge of “resisting arrest,” sex work-related crimes were easy, secondary charges to add to an already historically unjust conviction. Our current lawmakers despise sex workers so much that they refuse to see this.
Sex workers cannot catch a break, either historically or by today’s legal standards. We continue to be at the mercy of unjust laws. In the conservative worldview, LGBTQ+ people and Indigenous women were often branded with the proverbial scarlet letter as a way to make them conform to dominant Christian norms.
It’s time to expand the Expungement of Historically Unjust Convictions Act to include sex work-related crimes. It’s time to wipe the record clean and decriminalize prostitution in Canada once and for all. We should not settle for living in a country where ordinary people can easily become criminals because we’re having sex or expressing our sexuality in a way that doesn’t conform to outdated social norms.
Pierre Trudeau once said that “there is no place for the state in the bedrooms of the nation.” As long as we’re all adults and nobody gets hurt, the details should not concern government or law enforcement. There is also no place for the state in the hotels, inns, wigwams, bathhouses or strip clubs of the nation. Let’s not forget taxis!
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Nick Seebruch, editor
