AFTER BEDFORD

WHAT’S NEXT FOR CANADA’S SEX INDUSTRY

by Ainsley Doty

Many people are surprised to learn that prostitution is legal in Canada (and that this isn’t a new development—it’s always been legal). Their confusion is warranted considering sex work in general is deeply stigmatized and various activities related to prostitution are, in fact, against the law. But lately, the prospect of fully decriminalizing the selling and buying of sex has garnered attention in political circles. Justin Trudeau recently described prostitution as “une forme de violence envers [against] les femmes.” He hasn’t taken a firm stance for or against the legalization of sex work, yet his paternalistic feminist approach perpetuates a common assumption about prostitution: that it is harmful to women who practice it. His father, on the other hand, once said that the state should stay out of “the bedrooms of the nation.” Neither position does much to improve conditions for sex workers or for society, as turning a blind eye to prostitution is just as ineffective as trying to eliminate it. But as the debate rages on, what’s truly at stake?

A large measure of the dispute is hinged on the fact that the exchange of sex for money is legal, but many peripheral actions that are arguably necessary for this transaction to occur have long been outlawed. Until four months ago, public solicitation, street walking, operating or working out of a brothel, and procuring (pimping) were illegal. As legislation shifts, the questions that arise have a polarizing effect: should prostitution be fully criminalized to save sex workers from an inherently violent and exploitative profession? Or should discriminatory and outdated laws be dropped to create a work environment that fosters legitimacy and security?

Those who aim to abolish sex work, including major organizations such as the Vancouver Rape Relief and Women’s Shelter, the Native Women’s Association of Canada, and the Coalition Against Trafficking in Women might support Justin Trudeau’s position to a certain extent. Sex work is often dangerous and those who sell sex can be exposed to exploitation and deadly violence. But, to borrow a term from Slavoj Žižek, the legal treatment of sex work has allowed “systemic violence” to be enacted against sex workers, and laws written to control or limit prostitution have had devastating repercussions.

Prostitution laws that alienate and subjugate sex workers also make them more vulnerable to violence. Pushing against what they view to be a discriminatory legal system, advocacy groups like Halifax-based Stepping Stone, Native Youth Sexual Health Network, and Maggie’s Toronto fight for the rights of sex workers and argue that “sex work is real work.” But until recently, any reform to Canadian prostitution laws seemed unlikely.

The now infamous Bedford v. Canada ruling notes that most laws “are deeply rooted in the ancient common law of nuisance and vagrancy” and haven’t been revisited “in contemporary times.” The latest reform was a 1985 ruling that outlawed public communication for the purpose of buying or selling sex. The move was supposed to be an “interim response” until “a more comprehensive law reform initiative” could be developed. Clearly, it was high time for a legislative overhaul.

On December 20, 2013, the overhaul began. As part of the Bedford v. Canada ruling, the Supreme Court of Canada overturned three provisions of the Criminal Code relating to prostitution. The laws that criminalized “bawdy houses,” public communication, and living off of someone else’s sex work were apparently designed to prevent “public nuisances” and to protect people from exploitation. But, as Supreme Court judges unanimously agreed, such laws endanger sex workers and infringe upon their constitutional rights.

Prior to the overturn, the first two provisions put those who sell sex in a double bind. Seeking shelter and safety in numbers, people who worked indoors were met with legislation that criminalized brothels. This meant that more workers were forced onto the street where they were surrounded by even more red tape—with public communication outlawed, streetwalking became illegal. Essentially, sex workers were entrapped, unable to legally sell sex without breaking another law. Fearing persecution, many retreated even further into the shadows, where, as many studies have shown, sex workers are more vulnerable to violence and assault.

The third provision, which outlawed benefiting financially from a second party’s sex work, was aimed at abusive pimps. But the vaguely worded legislature potentially criminalized anyone employed by a sex worker, including drivers, bodyguards, managers, and even accountants. It also created a legal grey-zone for dependents and partners tangentially supported by sex work. The Canadian Parliament was forced to change the wording of the provision to specify “circumstances of exploitation” and was given one year to rewrite the remaining prohibitions so that they reflect and protect the constitutional freedoms of sex workers.

The promise of legal reform could lead to new laws that protect the best interests of sex workers. But such progressive legislative restructuring is unlikely. The narrow view that all prostitution is a form of violence against women informs the European legal structure known as the Nordic Model. Despite its failures elsewhere, the Nordic Model may soon be adopted in Canada.

Under the Nordic Model, a controversial legal framework used by Sweden, Norway, and Iceland, it is legal to sell sex, but not to buy it. An asymmetrical punishment system that penalizes clients as rapists and defines sex workers as victims of sexual violence, the Nordic Model has been largely unsuccessful abroad—since its 1999 inauguration in Sweden, assault rates against sex workers have increased, heavy competition has led to a decline in earnings, and there is little compelling evidence that the number of sex workers has decreased.

According to Susanne Dodillet and Petra Östergren, who have studied the social impacts of Sweden’s Sex Purchase Act, the legislation has not reduced the demand for prostitution or deterred clients. Instead, it has had “serious adverse effects” on sex workers, including an increased social stigma expressed by the public, healthcare providers, and social services.

In Sex Work Reform in Canada: Considering Problems with the Nordic Model, Ka Hon Chu and Rebecca Glass are critical of the Nordic Model and state that “basing the ‘eradication of sex work’ on a claim that prostitution is inherently a practice of ‘sexual exploitation and male violence against women’ promotes and exacerbates stereotypes of sex workers as hyper-vulnerable to exploitation and incapable of operation in their own self-interest.”

While sex workers may be vulnerable, it is important to acknowledge that they are capable of demanding fair and safe work conditions. Laws that treat sex workers as helpless victims fail to protect sex workers basic labour rights, systemically perpetuating violences committed against them. Fleur De Lit, a Toronto sex worker who wrote about her experiences in NOW Magazine in February, says that making sex work a crime means that it will attract a more criminal clientele.

Unfortunately, the decriminalization of activities that surround prostitution is equally complicated; the Netherlands offers a telling case study. Registration programs implemented by the Dutch have challenged privacy and anonymity, both for sex workers and clients. The costs associated with independent sex work have become exorbitant; rents for limited legal locations run high, increased competition and weak economies drive down prices, and sex services have become taxable. Illegal prostitution, assault, and sex trafficking remain major concerns. On the plus side, sex workers benefit from increased police protection, access to social services and health care, and unionization.

Nearly nineteen thousand kilometers away in New Zealand, prostitution has been decriminalized since 2003. The country is thought to have one of the most progressive and effective approaches to sex work. Brothel operators are certified and licensed, subject to formal inspection, and legally responsible for safe-sex education and practice. Operators are governed by the Department of Labour and must adhere to the Health and Safety Employment Act, as prostitution is considered a legitimate form of employment. Under this model the number of sex workers has not increased (as many predicted), and programs are in place to help people leave the industry, should they desire to do so.

Like all systems, however, New Zealand’s Prostitution Reform Act has not had universal success. Brothel locations are strictly regulated and must not “cause a nuisance or serious offence to ordinary members of the public” or be “incompatible with the existing character or use of the area in which the land is situated.” Unable to pay rent or fearful of exposure, many sex workers still resort to streetwalking. Exploitation of underage workers continues, and violence against sex workers has not been eradicated.

However flawed, New Zealand shows the value of treating sex work as legitimate work. As it stands in Canada, prostitution remains a dangerous profession and some of the risk can be attributed to the environment of criminality fostered by outdated laws. As the Canadian HIV/AIDS Legal Network points out, “Failing to recognize prostitution as a valid job choice and failing to see sex workers as people who can make their own choices rationally is disrespectful of sex workers and their human rights.”

Legitimizing sex work will not fully eliminate the dangers it entails, nor will it immediately dismantle entrenched social stigmas. But the change will be a step toward protecting the rights of people working in the sex industry. Perhaps it will also expand the social perceptions and legal solutions that only serve to further alienate and devalue sex workers.

As Parliament begins the process of revamping prostitution laws, it remains unclear what the next eight months will bring. While it remains unconstitutional to ban prostitution outright, will the legislature to follow continue to endanger and discriminate against one of Canada’s most marginalized populations? Or will lawmakers consult with sex workers, advocacy groups, and social services to design a new system that makes sense within a Canadian context? Sex workers, who wait for the gavel to drop, have the most to lose. But hope remains that Canada will implement laws that work for sex workers, not mindlessly against them. ♦

Sex workers are speaking out and have more influence than ever before. Here are some links to consider:

powerottawa.ca

gshi.cfenet.ubc.ca

steppingstonens.ca

maggiestoronto.com

 

“After Bedford” is from our Spring 2014 issue, Women’s Work

 

 Exploitation of sex workers (often considered synonymous with pimping) and sex trafficking remain illegal. “Procuring” (the legal term for pimping), in the form of management, is currently legal.
 “NWAC’s position is that prostitution exploits and increases the inequality of Aboriginal women and girls on the basis of their gender, race, age, disability and poverty.” With regards to sex work, NWAC’s primary goal is to “end the prostitution of women and girls through legal and public policy measures that recognize the state’s obligations to (i) provide for basic needs and (ii) to protect women and girls from male violence.” For more information, visit nwac.ca
Bedford v. Canada (Attorney General), sex workers Terry Jean Bedford, Valerie Scott, and Amy Lebovitch challenged three provisions in the Criminal Code: “keeping or being found in a bawdy house,” “living on the avails of prostitution,” and “communicating in public for the purpose of prostitution.” At the end of the case, which began in 2007, the Supreme Court struck down all three provisions stating, “The prohibitions at issue do not merely impose conditions on how prostitutes operate. They go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky – but legal – activity from taking steps to protect themselves from the risk.” For further information, see the Bedford v. Canada Supreme Court Ruling.
 The first question the Department of Justice’s Public Consultation on Prostitution-Related Offences in Canada: “Do you think that purchasing sexual services from an adult should be a criminal offence?” The Nordic Model is listed as an example of an existing legal treatment of prostitution.
Studies that claim the number of sex workers has decreased are based on police and social worker encounters with sex workers. This doesn’t prove that there are less sex workers. More likely, they have gone underground.

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