prostitution law

The Bedford Decision: Deconstructing the Debate Around Selling Sex

Photo of Supreme Court of Canada buildingby Arwen McKechnie

Good news! Or at least, interesting news for Canadian law and social policy. Just in time for Christmas, the Supreme Court of Canada ruled unanimously that the current legislation on prostitution related offences are unconstitutional.

The ruling is suspended for one year, so that the federal government can amend the legislation that has been struck down. Knowing our government, they will do their utmost to find a way around the Supreme Court’s ruling, so for the next year the future of sex work in Canada will be in limbo.

But even with the delay and the inevitable attempts by the government to continue to endanger sex workers[1] under the guise of maintaining law and order, this is a very big deal.

You can read an excellent analysis of the Justices’ decision and the way it avoids dealing with the intersectional issues of race and class here, but rather than talking about the ruling itself, I think the debate around abolition vs. decriminalization/legalization is worth looking at in greater depth. People and groups on both sides of the debate claim that they’re working for the best interests of the women involved (yes, there are men working in the sex trade and this legislation affects them too, but this is still primarily a situation in which the primary providers of sex are women, and the primary consumers are men).

So given that this is an issue of women’s safety and women’s rights, and most everyone involved in the debate wants to promote both, how can they have such differing opinions on how to get there?

For those just introducing themselves to this issue, the discussion is largely polarized between those who support abolition and those pushing for decriminalization and/or legalization. Read more

Posted on by Arwen McKechnie in Can-Con, Feminism, Politics 1 Comment

Race, Security and Choice: The Bedford Decision Explored

Gavel and justice scalesby Arij Riahi

The Bedford decision released last Friday has already resulted in a great volume of commentary. This (long) post aims to break down the ruling to facilitate further discussion. I also wish to highlight some points of concerns about the unanimous decision that seem important to any feminist conversation on the topic. They center on the question of whether prostitution is a real choice and the realities of indigenous women and women of colour in the sex trade.

Three articles down. Right to security up.

The decision declares three articles of the Criminal Code to be invalid because inconsistent with the Canadian Charter of Rights and Freedoms. They are sections 210, 212(1)j) and 213(1)c) of the Criminal Code.

Specifically, the articles are said to be contrary to section 7 of the charter, which guarantees the right to security – a “fundamental freedom”- to every person.

The arguments brought by the applicants (Terri Jean Bedford et al.) are centred around the idea that the current laws violate the charter by preventing prostitutes from implementing safety measures (hiring body guards, for example) that could protect them from violent clients. The Supreme Court of Canada agreed with this argument.

It is important to mention here that the court has to answer the arguments brought by the applicants. The judges cannot get creative; they cannot decide to consider other arguments and ignore those submitted in front of them. This is why the decision is centered around the safety measures that prostitutes could set up to increase their own security.

The court started its decision by repeating that prostitution is not illegal in Canada. The act of exchanging sex for money is not a criminal infraction. Therefore, the ruling only considers if the current criminal legislation related to prostitution – which are sections 210, 212(1)j) and 213(1)c) of the Criminal Code -  violate the charter. I’ll consider the content of those articles and highlight the crux of the court’s arguments for each. Read more

Posted on by Arij Riahi in Can-Con, Feminism, Politics 2 Comments

Gender Focus Panel: Bedford Decision on Prostitution

Gavel and justice scalesEarlier this week the Ontario Court of Appeal handed down a decision in the Bedford case, which deals with the laws surrounding sex work.

From the CBC:

The court released a decision Monday on an appeal of Superior Court Judge Susan G. Himel’s high-profile ruling that three provisions of the Criminal Code pertaining to prostitution should be struck down on the grounds that they are unconstitutional.

The Ontario appeal court agreed with two-thirds of Himel’s ruling, namely that the provisions prohibiting common bawdy-houses and living off the avails of prostitution, are both unconstitutional in their current form.

But the court disagreed that the communicating provision must be struck down, meaning that it “remains in full force” and the existing ban on soliciting will continue.

[...]

The court also said that the prohibition of living off the avails of prostitution – as spelled out in Section 212(1)(j) of the Criminal Code – should pertain only to those who do so “in circumstances of exploitation,” and will be amended to reflect that. The changes to the “living-off-the-avails” provision will not come into effect for 30 days.

After the jump we’ll go to responses from Gender Focus contributors, but first here were some responses from other media and feminist organizations (only excerpts: click on links to read their entire reactions):

From WAVAW’s Media Release:

“Once again the legal system is missing the mark on prostitution. Women will continue to go missing and be murdered, if there is no real work being done to aid women. Social programming and funding into women’s services are what is needed. Hiding women from plain sight to create a false sense of safety in community is not the answer. The women who are engaging in sex work are not the individuals creating the violence; it is the men who seek to exploit women’s bodies. Those men come from the very neighborhoods that these judges say they wish to create safety in; they plan on doing this by eliminating the undesirable social consequences of sex work. The undesirable consequences are that men are able to exploit marginalized, at-risk women in Canada” says Darla Goodwin, WAVAW Rape Crisis Centre Coordinator of Aboriginal Women’s Services.

From Pivot Legal Society via Rabble.ca:

“I am very concerned about the continued criminalization of women working on the street. These are the women who face the most charges, face the most violence and have the fewest options” says Pivot Board Member Kerry Porth. “But I am glad to see that the Court recognized that these laws were not put in place to prevent prostitution and that the current legislative scheme does not reflect the values of dignity and equality for sex workers.”

From Laura Johnston at The F Word Feminist Media Collective:

The other strange part about this conclusion is that the Court acknowledged that the evidence demonstrated that women prostituted on the street do not move indoors, even if it’s legal. The record from other countries that legalized brothels showed that there was no movement from the street to brothels following decriminalization. There are many reasons for this. An obvious one is that brothels won’t let women in who struggle with mental illness, addiction, or have other health problems. Another is that many women prefer prostituting on the street because they have more control than in a brothel where the manager negotiates with johns on their behalf.

Now here’s what Gender Focus contributors had to say: Read more

Posted on by Jarrah Hodge in Can-Con, Feminism Leave a comment

Making the Sex Trade Safer: Is Decriminalization the Answer?

Gavel and justice scales

Very pleased to have Jasmine back for a second post at Gender Focus. Jasmine Peterson is currently a graduate student in Clinical Psychology at Lakehead University (Ontario), and a feminist activist. 

Prostitution is a cultural phenomenon that has been present in some form or another throughout history; it has often been referred to as ‘the world’s oldest profession’ which is not an accurate statement, but highlights the fact that sex work has been prevalent throughout the world for centuries.

In Canada, prostitution itself is a legal activity. However, many of the activities related to prostitution are illegal: operating or being found in a brothel or bawdy house, procuring sexual services, living on the avails of prostitution, or soliciting in a public space.

This is an issue for a number of reasons: it is difficult to engage in prostitution without breaking the law even though prostitution itself is legal, it contributes to and is a function of the cultural stigma against sex workers (which can also lead to street prostitutes being jailed more frequently than their clients), but most concerning is that these laws prohibit those who engage in sex work to communicate in a public space. This leaves workers more susceptible to the dangers of the industry (specifically violence and fear of legal reprisal for reporting such violence once it’s been committed).

A group of Vancouver sex workers – The Downtown Eastside Sex Workers United Against Violence Society – have spent the past few years pitted against the federal government in legal proceedings. The case has made its way to the Supreme Court. What is really at the center of this legal battle is the safety of sex-trade workers. The sex-trade workers would like to see the activities associated with prostitution decriminalized as an integral step in ensuring their health, safety, and freedom of expression – basic human rights (read about it here).

The debate about decriminalizing activities surrounding prostitution is a rather divisive one, with some polarizing views. Read more

Posted on by Jasmine Peterson in Can-Con, Feminism Leave a comment

Prostitution Laws: Where do we go from here?

Ever since the Ontario Superior Court struck down laws relating prostitution earlier this week and the federal government announced their plan to appeal, it threw open the debate about if and how we should regulate sex work in Canada. Like the general public, women’s and feminist organizations are divided. The Sex Professionals Association of Canada hailed the decision as a step towards recognition of sex work as a legitimate profession. On the other hand, the Canadian Association of Sexual Assault Centres (CASAC) put out a release expressing their outrage at the decision for legitimating pimps, organized crime, and trafficking.

It’s taken me a few days to write something on this because it’s easy to forget in this situation that a good legal decision might look a bit different than a good policy decision. The judge, Justice Susan Himel, had one decision: are the laws justified to protect the public interest or are they violating sex workers’ right to security of person? She didn’t have the ability to make a better policy regime for sex workers. That responsibility belongs to the federal government, and it’s a responsibility they’ve been shirking for years. In 2006 a parliamentary committee reported that the status quo was untenable and made it “virtually impossible to engage in prostitution without committing a crime” though prostitution itself is legal. However, no action was taken by the government.

So Justice Himel made the right choice. She believed the 3 laws, particularly the law prohibiting communicating in a public place for the purposes of prostitution, did make sex work a lot more dangerous than it has to be. It’s legal to sell sex and therefore sex workers have the right to the same security of person as any other Canadians. The judge made the right legal and ethical decision.

But it may be a mistake to think that this ruling deals with all the issues sex workers face or that it will suddenly solve problems of violence, exploitation, and abuse. Even the lawyer for the sex workers who filed the suit, Alan Young, admits the ruling is no panacea:

The case does not solve the problems related to prostitution, he said. “That’s for your government to take care. Courts just clean up bad laws.”

“So what’s happened is that there’s still going to be many people on the streets and many survival sex workers who are motivated by drugs and sometimes exploited by very bad men. That’s not going to change,” Young added. “Here’s what changed. Women who have the ability, the wherewithal and the resources and the good judgment to know that moving indoors will protect them now have that legal option. They do not have to weigh their safety versus compliance with the law.”

Vancouver-East MP Libby Davies told CTV news: “We need to distinguish between what is consenting between two adults and what is exploitative, coercive and violent and focus the law-enforcement on those aspects.” She’s right, but the distinguishing is where it gets tricky. While there clearly are people who choose to be sex workers (for more on this, check out Jeffrey and MacDonald’s research with Maritimes sex workers), there are also those who are trafficked into prostitution or forced into it by economic circumstances, sometimes compounded by drug addiction, mental health issues, and/or racism. Poverty can be a form of coercion, and while that’s no reason for maintaining the harmful patchwork of anti-prostitution laws that we’ve had, it’s reason to see the legal fix as just one piece of the puzzle.

So where do we go from here? It looks like the court decision is going to finally result in some policy-making at the federal level. Unfortunately, with the Conservatives in power it looks like the government will be fighting this ruling tooth and nail in the name of prostitutes’ “safety”, essentially arguing that some form of criminalization is the best approach, while all the evidence shows that it doesn’t act as a deterrent and only serves to put prostitutes at unnecessary risk. If we want to empower women, criminalization is no way to go. Historian George Ryley Scott concludes his research on prostitution around the world by stating that “the most that can be expected from punitive and repressive measures…is the driving of prostitution into underground channels” (1996, p. 181). As Justice Himel pointed out, one only needs to look at missing and murdered women in the Downtown Eastside to realize that.

So we’re left with legalizing and regulating prostitution, as in the Netherlands or Nevada, where brothels are legalized. It sounds progressive on the surface – totally legitimating the profession – but some worry that depending on the way the regulations are crafted it could give more power to pimps. Some reports show it hasn’t totally curbed violence against sex workers. Farley’s research found that most women in legal brothels in Nevada had pimps outside, and that rights are severely restricted, with women often forced to live in the brothels and work 12- to 14-hour shifts. In the Netherlands, the average age of death of sex workers is 34.

More widely endorsed and the system I’d prefer is decriminalization, which is supported by the Canadian Medical Association, the WHO, and UNAIDS when exploitation is not involved. It’s believed that decriminalization will reduce stigma and enable sex workers to organize for security and labour rights.

But some women’s groups believe decriminalization gives tacit approval to the trafficking of women and exploitation of sex workers. A slight variation on full decriminalization is the Swedish solution to make it criminal to buy but not to sell sex, an approach championed by Benjamin Perrin in the Globe and Mail and organizations like Vancouver Rape Relief. It’s a somewhat conservative approach that assumes all sex workers are victimized, but it’s possibly more politically palatable than total decriminalization and statistics out of Sweden seem promising. That said, I do wonder whether it would just serve to continue to deny sex workers agency and drive prostitution into unsafe areas.

I’m glad Himel’s decision has forced us into having this needed national discussion. I definitely don’t agree with criminalizing sex work where there is consent and choice, and while I’m most supportive of decriminalization, I recognize underlying issues of poverty, racism, and sexism will continue to make any material changes difficult, even if Justice Himel’s decision results in national legal reform.

What I’d like to see is for policy-makers to work with both feminist and sex workers’ rights groups to create broad-based policy initiatives responsive to the needs and views of sex workers. While moves to decriminalize prostitution should be part of these initiatives, recognizing sex worker diversity means also recognizing the needs for services and programs to help those women who choose to leave the sex trade. Finally, dealing with the harms associated with prostitution will involve a concurrent movement towards gender equality, which will require social as well as legal change.

-Jarrah

Posted on by Jarrah Hodge in Can-Con, Feminism, Politics 4 Comments