The Bedford Decision: Deconstructing the Debate Around Selling Sex

by | January 4, 2014
filed under Can-Con, Feminism, Politics

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.

In a very general sense, those supporting decriminalization and/or legalization think that sex work is a form of employment like any other, that people choose to engage in it for a variety of reasons, and that the current legislative attempts to marginalize the sex trade are what make it dangerous. Advocates of decriminalization focus mainly on this final argument and may have varying concerns about what the legal situation should be, but believe that the status quo is unacceptable. Some advocates argue that if the sex trade were fully legalized, it could be regulated, making it safer for both workers and consumers.

By contrast, abolitionists think that prostitution is inherently violent, damaging and predicated on the dehumanization of women. Even those who claim to be voluntarily engaged in sex work are responding to a lifetime of sexist conditioning that tells women that their purpose is to be an object of male pleasure. This ingrained misogyny interacts with racist, hetero-normative societal structures to make women of colour, trans*[2] and street-involved women (and those whose identities intersect with one or more of these communities) particularly vulnerable to violence and also less able to seek and receive help.

Lots of survivors’ groups are staunchly abolitionist – with very good reason. Sex work is dangerous: it exposes women to the potential violence of men who believe that they are entitled to buy, or least rent, another human being.

It is argued by some pro-legalization advocates that without the restrictions on sex work, it would be no different from any other form of employment: a service rendered in exchange for compensation. That would fly if our culture was less rigidly puritanical about sex and demonstrations of female sexuality, if the Madonna/whore complex was not alive and well in any discussion about sexual violence.

But this is not the culture we live in – in our culture, with a depressing level of societal consistency, “nice girls” don’t get raped, so we don’t care so much about what happens to girls who do.

Abolitionists also tend to conflate sex trafficking with all sex work, which aligns with their belief that all sex work is exploitative, but is problematic in the extreme.

First, most traffickers prey on girls and women (mostly girls, sadly, at least in the context of domestic trafficking) through of “love-bombing” – engaging the girl in a romantic relationship, and manipulating her into the sex trade as a favour to him, or to make money to achieve some joint goal like moving or buying a house.

Once the manipulation has ceased to be effective, a trafficker will use other means to ensure the girl’s continued compliance, but at least in the early stages of human trafficking, an exploited woman or girl is more likely to regard her trafficker as her boyfriend than her pimp.

In my opinion, this makes human trafficking for commercial sexual exploitation more analogous to intimate partner violence than the sensationalized versions of human trafficking one sees in the media. It also makes it harder for girls and women to escape their traffickers; as anyone who has worked in the violence against women sector can tell you, most women leave and return to their abusers many times.

Second, conflating human trafficking with sex work is also deeply problematic in the sense that law enforcement officials can end up treating someone who is actually the victim of a horrific crime as a criminal themselves. Women (and girls, even though no one under the age of eighteen can consent to engage in commercial sex work) who should be referred to victim’s services are instead interrogated, threatened with charges or jail time and pressured to “flip” on their trafficker.

This confrontational approach can be both traumatizing for the survivor and is unlikely to build trust between vulnerable women and the police, who should be looking out for them. It is also the logical extension of the human trafficking=sex work paradigm. If all women involved are victims, then under the current legislation, all women involved are also criminals.

I sympathize with the abolitionist movement, truly I do. I have nothing but contempt for the men who exploit sex workers, whether as pimps or johns. And while I believe that some women in the sex trade are doing it voluntarily, either because they find it empowering, or simply the most convenient way to make a living based on the other factors at play in their lives, I think that those women do not represent the majority of women in the sex trade.

I suspect that most women engaged in sex work, and especially those involved in street-based, survival sex work, would like to quit the life, and that even those who are doing it of their own free will would probably find other employment if other so-called “pink-collar” jobs paid better.

But I find the all-or-nothing approach abolitionists adopt overly simplistic: sex work may well be exploitative and traumatic for the majority of women who engage in it. But most abolitionists that I’ve spoken with cannot offer any practical plan to end the exploitation of women – especially given the current political climate in Canada.

Many abolitionists point to the Swedish example, or the “Nordic model” as something for Canada to emulate: rather than policing and penalizing those selling sex, the Swedish program targets the consumers, while also assisting those engaged in sex work to find alternate employment and housing, if necessary.

Though much of the impact of the Nordic model is heavily contested and many of the reports produced on it use dubious methodologies, the Swedish model has been adopted by Iceland and Norway and seems to be successful in all three countries.

The problem is that Canada is not Scandinavia. Not even close. Sweden is one of the most progressive countries in the world, and puts significant money towards closing the gender gap within its borders; the World Economic Forum ranks Sweden 4th in the world in terms of gender equality, with Canada lagging behind in 20th. It is gender inequality which allows some men to think it’s acceptable to commodify women’s bodies, and while Sweden continues to work towards a more equitable society, we as Canadians want to believe that we are all equal and ignore the ways in which that is manifestly untrue unless they impact on us directly.

It’s not a coincidence that women of colour and trans* women are over-represented in the street-level sex worker population; this is a very real reflection of how many barriers are still leveled against these communities.

To truly be able to end sex work we need to invest serious commitments into: affordable housing, adequately resourced food banks that provide nutritious food, drug treatment programs that don’t have year-long waitlists, and low-barrier, non-judgmental counselling and health services.

That’s just the beginning. We’d also have to do more than pay lip-service to the idea of ending violence against women and the culture that privileges male entitlement over female autonomy. We would have to challenge the way in which sex work and our perceptions of it are informed by entrenched racism, legacies of colonialism, classism, heterosexism and cis-sexism in Canadian society.

All this huge, transformative work will take years, decades even, and it’s extremely unlikely that a course of action with such a long-term payoff will be adopted by any government without a significant public push, which has thus far been absent in Canadian society.

For some time now, Canada has been steadily moving towards a smaller, more distant government that will not have the resources to adopt such changes, even if it developed the political will. Our current government champions “small government”: there have been massive cuts to social spending under the Harper government, including to women’s groups and the court challenges program, which enabled women and other marginalized groups to challenge discriminatory policies and practices through the legal system. The current Minister for the Status of Women voted last March in support of a private member’s bill to re-open the abortion debate – at the expense of the bodily security of women. Not really the kind of leadership we would need to push through expansive and potentially expensive social programs for women.

It may be easier to talk about sex work as an inherently evil thing, but such a facile explanation ignores the larger issues; activities associated with prostitution were criminalized but the act of selling sex was not, for the very valid reason that desperate people will sell what they have to get what they need, up to and including their bodies.

It’s an ugly truth that most people don’t particularly want to talk about, but until the social programs are there to fully support people in need, there will always be a sex trade.

The Supreme Court’s decision on Bedford is a stop-gap response to an untenable situation with no real obvious solutions, until and unless we as Canadians decide that the lives of our most vulnerable sisters are worth investing in, not just condemning.


[1] I use the terms sex work and sex workers rather than the more stigmatizing “prostitute,” unless referring to legislation. For a good synopsis of why sex work is the preferred term, see this FAQ on sex work, produced by Chez Stella in Montreal and endorsed by Maggie’s in Toronto.

[2] I use the asterisk to denote all the various identities under the trans umbrella: genderqueer, non-binary, etc. If you think there’s a different term that’s preferable, I’d love to hear it in the comments.

(photo of Supreme Court of Canada building in public domain, via Wikimedia Commons)

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