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