Safer sex work
The case for decriminalization

“In my view the law plays a sufficient contributory role in preventing a prostitute from taking steps that could reduce the risk of such violence.”
With these concluding remarks by Justice Susan Himel, the laws that kept sex work illegal in Ontario were struck down in the fall of 2010. The ruling, however, has been stayed, pending an appeal by the federal government that’s scheduled to begin in June, 2011.
If the appeal is unsuccessful and these laws do indeed fall in Ontario, it would likely set off a chain of challenges across the country, which would be a major victory for sex workers and those advocating for their rights.
Decriminalizing prostitution in Canada
Prostitution itself has never been illegal in Canada, but almost everything that makes sex work possible is: Section 210 of the Criminal Code regarding bawdy houses makes it illegal to run, work in, or be inside of any building where sexual services are exchanged for money; Section 212 (1)(j) outlaws living off the avails of prostitution, thus barring prostitutes and their dependants from living off of their earnings; and Section 213 (1)(c) outlaws communicating for the purposes of soliciting, thus criminalizing any negotiation about rates and time of sexual services.
Based on extended research on the arguments both for and against the criminalization of sex work, Justice Himel ultimately concluded that these three laws disallow sex workers the freedom to negotiate the terms of their own safety, thereby enabling the violence that is often perpetrated against them by clients.
Many women’s rights organizations have denounced the decriminalization ruling, arguing that sex work is inherently violent, and that to decriminalize it legalizes violence against women.
But organizations comprised of women in the sex industry, who have experienced criminalization and violence first-hand, have generally been supportive of Justice Himel’s decision. Émilie Laliberté, director of Stella, a by-and-for sex workers’ rights organization based in Montreal, argues that the perspective of feminist organizations which view all sex work as abuse, coercion and exploitation is based on ideology rather than fact. And besides, she says, there are other parts of the Criminal Code that address these issues. “In the Criminal Code there are many other sections that fight exploitation, profiting based on coercion, and profiting based on juveniles. [Himel] kept these things in purposefully.”
Violence against sex workers is endemic, and nightmarish scenarios such as the Pickton murders in B.C. exemplify the social marginalization that makes sex workers’ lives seemingly more expendable. Laliberté argues that criminalization puts workers at particular risk of danger by imposing a structural vulnerability. “These women* get targeted for sexual assault because they are not protected, and do not have any rights. Just the fact that women are being seen as criminals sends a message to society that they are less than human.”
Criminalization of sex workers creates a perceived institutional impunity for those who perpetrate violence against them, and inhibits sex workers from reporting violence for fear of arrest. “We’ve seen too many times women in the industry subjected to mandatory arrest after reporting sexual aggression,” says Laliberté. Women are therefore doubly victimized, first by the perpetrator, and then by the criminal justice system.
This rights-free vacuum that sex workers inhabit is especially troubling for women and trans women, who already face a higher level of societal stigma for not conforming to gender norms. The history of racism and colonization that places Indigenous women at far higher levels of social marginalization also increases their vulnerability to violence both from clients and police officers.
The fact that criminalization impedes women’s ability to reduce the risk of violence and aggression against them was Himel’s main reason for striking down sections 210, 212(1)(j) and 213(1)(c). Laliberté notes that indeed, with Himel’s ruling stayed, “All of the ways to increase your workplace security are illegal right now.”
Regarding the section outlawing bawdy houses, Himel stated in her ruling that “the evidence suggests that working in-call is the safest way to sell sex; yet, prostitutes who attempt to increase their level of safety by working in-call face criminal sanction.”
Laliberté concurs. “We see in putting together our Bad Tricks list [Stella’s anonymous list of abusive clients] that most of the aggression takes place on the streets. When you work from inside you control your environment and you can put in place more security measures.”
Though ‘living off the avails’ of prostitution might conjure up images of abusive pimps forcing women to work for them and living off of their money, this law also criminalizes common security measures taken by women, such as hiring drivers to take them from place to place, security guards for their workplace, or managers to pre-screen clients. Himel noted the danger of criminalizing security measures in her concluding remarks, arguing that “Prostitution, including legal out-call work, may be made less dangerous if a prostitute is allowed to hire an assistant or a bodyguard; yet, such business relationships are illegal due to the living on the avails of prostitution provision.” The abusive coercion and financial exploitation often perpetrated by pimps remains illegal elsewhere in the Criminal Code.
The successful removal of the third section, barring communication for the purposes of soliciting, would be a major cause for celebration for sex workers’ rights organizations. If removed, it would mean that women could negotiate rates without fear before agreeing to take clients. This is particularly significant for women working on the street, who already face the most violence. Presently, for fear of getting arrested, women often get into a vehicle without being able to first screen the client, negotiate fair rates and services, or discuss safe sex. According to Laliberté, “They just jump in, and then they go into back alleys and darker areas where there are less people around so as not to be seen by the police.”
“Because of this we see more STIs and more violence,” adds Laliberté. The World AIDS Campaign recently published a report which substantiates this observation, stating that criminalization increases women’s vulnerability to contracting HIV because they are less able to negotiate safe sex practices. Justice Himel’s concluding remarks concur and go further, stating that this section not only inhibits women’s capacity to protect themselves, but also undermines their right to freedom of expression guaranteed under the Charter of Rights and Freedoms.
Case Study: Decriminalization in New Zealand
“Because of decriminalization you have this expectation now that we should be safe. In a criminalized environment, if something disturbing happened, we had no choice, really, but to shrug it off. In a decriminalized environment, people can act, they can say ‘I deserve occupational safety and health, I’m not going to put up with this. Who can I ring?’”
—Catherine, member of the New Zealand Prostitutes Collective
In a landmark decision in 2003, the laws that rendered sex work illegal in New Zealand, nearly identical to those singled out by Justice Himel, were removed, making New Zealand the first country in the world to decriminalize sex work. At the same time, the Prostitution Reform Act was introduced to ensure sex workers’ rights and needs were being met. This act specifically bars managers from forcing sex workers to have intercourse with clients, bans any kind of coercion using financial or physical threats, allows women to work together collectively out of the location of their choosing, and provides sex workers with workplace safety benefits and the ability to file unemployment claims.
Catherine is a member of the New Zealand Prostitutes Collective, a sex workers’ rights advocacy organization that played a large role in the decriminalization of sex work and the introduction of the Prostitution Reform Act. When asked how decriminalization has affected her working conditions, Catherine states emphatically, “In my day of working it was common for us to be arrested, be publicly shamed, and to know that there was nothing we could do if we were faced with violence when working – all of those terrible things that happened in a criminalized environment. Have conditions improved? Short answer: enormously!”
Since decriminalization, if a woman is forced to have sex with a client against her will through the use of threats or fines, it is the manager or the client who faces criminal prosecution – up to 14 years of incarceration – and the sex worker can report this free from the fear of arrest. Recent studies demonstrate that women’s perceived levels of safety have drastically increased since 2003: before decriminalization, 37 per cent of sex workers felt they could refuse a client. This increased to 62 per cent within four years. According to Catherine, “It used to be common for clients to pretend to be the police and force people into things. Now sex workers can turn down requests and feel safe.”
Though local politicians are continually making notable efforts to re-criminalize sex work, the concept that sex workers, especially on the street level, should have rights is now widely accepted in much of New Zealand society.
Catherine explains that many basic exploitative workplace practices that were the norm under criminalization, such as unjust fining or forced 14-hour shifts, can now be challenged in much the same way as a parking ticket. “If your manager unfairly takes your money, you can fill out a form saying you’re disputing the [theft]. Your boss will talk to the adjudicator, and these adjudicators are generally in favour of the sex worker in those scenarios. It’s both practical and extremely empowering.”
The Prostitution Reform Act offers sex workers a variety of measures to ensure workplace safety, from mediation to pressing charges criminally, depending on the severity of events and the desire of the sex worker involved. Safe sex practices are part of the legislation, posters about safer sex methods are mandatory in all brothels, and brothel operators are required by law to support sex workers’ right to safe sex, rather than pressuring them into unsafe sex, refusing access to condoms, or hiding condoms in case of police raids, as happens in Canada.
Catherine notes that these new norms provide a level of self-determination to sex workers previously unheard of under criminalization. “People stand up to unfair conditions. They are now empowered to be appalled.”
In the lead-up to decriminalization, many New Zealanders feared a huge influx of sex workers into the country. Research commissioned by the Ministry of Justice in 2005, with participation from New Zealand police offices and the New Zealand Prostitutes Collective, demonstrates that there was in fact no influx. The city of Christchurch, which had large numbers of sex workers both prior to and following decriminalization, saw no increase in the number of sex workers from 1999 to 2006.
Upcoming Battles
According to an Angus Reid poll conducted for Maclean’s magazine in 2009, nearly 50 per cent of Canadians believe that prostitution should not be punished. While there are some calling for Canada to adopt the Swedish model, which criminalizes clients but not prostitutes, polling shows that only 8 per cent of Canadians support this option. Laliberté critiques this model, asking, “How can a worker work safely while she has to go on the black market to find a client? It’s not respecting the choice of women to do these exchanges. The police should be arresting assaulters and not consensual adults negotiating sexual services.”
With the appeal to Himel’s ruling set to begin in June, 2011, those in support of decriminalization face a difficult battle. These sections falling in Ontario would likely lead to their eventual challenging all across Canada, and the Conservative government and the mainstream feminist organizations that do not support decriminalization will no doubt do everything in their power to stop Ontario from setting such a precedent.
According to Laliberté, one of the upcoming challenges for sex workers’ rights organizations in Ontario will be to make interventions in the appeal. For Stella, this will mean focusing on educating both politicians and the public. To that end, Stella is currently coordinating a project titled Stella Deboutte, which involves collecting, transcribing, and publishing interviews with sex workers on how criminalization affects their lives.
Laliberté stresses that it is sex workers, and not those who claim to speak for them, who should be the ones determining the laws that govern their bodies. “It’s sex workers that need to be in control of their own destiny and not at the mercy of laws that endanger them. We need a consultation with sex workers in all sectors on decriminalization, from strippers to women working on the street, on how we can enable them to work in safety and in dignity. It’s been forever that we are criminalized so organizing will be quite tricky. But we’re looking forward to it.”
*This article is focused on sex workers who identify as, or conduct their sex work as, women. For this reason, the terms ‘women’ and ‘sex workers’ are often used interchangeably. Violence against male-identified sex workers is an under-explored topic that also deserves critical analysis but does not fit into the size and scope of this article.
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5 Comments
While I think that current laws surrounding prostitution are unjust, and that the criminalization of prostitution harms the victims, there is absolutely no proof that legalizing sex work will in any way decrease harm for women outside of New Zealand – there are many other countries that have legalized.
In Germany, where sex work is legal indoors, pillows are not even allowed in the bawdy house rooms as sex workers are in such danger of being smothered.
One sex worker in Germany was unable to apply for social assistance because she had quit, rather than fired, from her job in a bawdy house. How does an environment like this make life safer for women?
This argument linking greater safety of women with legalized sex work is false and completely ignores the sexualized violence that sex workers are expected to enact. It does not go to the root of sexualized racism and sadism that is currently marketed and taken out against sex workers.
Further, I cannot ignore that those closest to women as victims of violence – Native Women’s organizations, Women’s Shelters, and ex prostitutes are all appalled by this argument and go unnoticed by a legalization movement that claims to speak for all women. Women on the front lines of ending violence against women have been silenced.
Lastly, many sex workers have admitted that if sex work became legal that they would like to employ younger women themselves to work in their bawdy houses. The problematic aspect of sex workers profiting off of one another, and encouraging young workers into the trade has gone unnoticed other than by Native Women’s organizations who have boldly spoken out and said “not our daughters”.
The argument for legalization still has a long way to go to convince me that without addressing the root of women’s oppression, that sex work can ever be a safe, or safer trade. How is taking a trade that fetishizes domination and violence indoors inherently safer? Its just not. There may be other arguments for this, but safety is not one. Moreover, arguments that fail to grapple with the very real concerns that Native Women, and Social Workers have raised about the the movement for legal sex work in Canada – years after protests have been effectively raised – convince me even less.
From Andrea Peloso in Toronto on May 10th, 2011 at 1:44pm
This article is one of a very few good articles that accurately lays out the reaities of criminalization of sex workers.
To the previous commenter—woah, check your facts. There is an entire international movement of sex workers who have been pushing for sex work decriminalization for decades. The fiercest of those voices are women from the global south (e.g. DMSC in India, the largest sex work org in the world). Don’t listen to people who aren’t even sex workers who go around claiming our clients all want to smother us. Unbelievable. I am a sex worker and am connected to our movement and I can tell you, there are HEAPS of current and former workers who want the police and courts off our backs. Even legalization (rather than full decriminalization) would make it illegal for us to hire security. Do you really believe that would be the best thing for us??? What we need is for our allies like you to LISTEN to us. We need the same protections as everyone else—and not because our clients are all trying to kill us! It’s because having NO protection means violent men choose the most vulnerable—first that’s they’re wives then it’s their children, then it’s sex workers. None of these (heterosexuality, having kids, sex work) are intrinsically violent. But patriarchy makes doing these things more dangerous than they need to be.
Check out the fierce work of Indigenous feminist (and sex worker) Jessica Yee for another perspective on colonization and sex work. Check it:
And thanks briarpatch for the fierce allyship.
From Cee in Toronto on Jun 2nd, 2011 at 4:59pm
And this piece by Briarpatch! (hitting out of the park friends, thank you!)
From cee in Toronto on Jun 2nd, 2011 at 5:02pm
There are so many things wrong with this article.
a) Some straight disinformation. For instance, the section against “living off the avails” refers to peeps who exploit someone ELSE’s prostitution, aka pimps, not their own. No, prostitution was not illegal, and no, the laws have not all been challenged by the Bedford v. Canada trial court decision.
b) A manipulative use of the safety issues of street-prostituted women to suggest that Bedford – if it stands – would solve these by allowing women to escape police harrassment. Not so. Judge Himel went into detail, in pages 126-127 of her decision ([url=http://www.cbc.ca/news/pdf/bedford-ruling.pdf]http://www.cbc.ca/news/pdf/bedford-ruling.pdf[/url]), quoting approvingly the numerous Criminal Code sections that will still allow their harassment by cops in order to “protect the community”.
c) Refusing to even consider the possibility of taking on and reducing the male sexual privilege to prostitute women, by keeping men and the industry out of the picture and presenting the attempt to further their sexist interests as those of women.
d) Essentializing “sex workers” as somehow preordained for this function, instead of acknowledging that the issue is women and other people trying either to survive or to make a living in a society where even welfare is being destroyed. A complete picture would have at least alluded to the numbers of people pushed into prostitution against their will. Maynard chooses complete denial about this, despite all the sources and organizations who could have testified to this.
This trial is driven not by prostitutes but by middle-class would-be pimps and a billionnaire industry that wants to cash in on a boon. If the Bedford decision stands, there will be more prostitution in Canada and therefore less real job options and support for women trying to escape this underworld, and of course more sexist violence with men now authorized to exploit their material advantage to the hilt and even take up pimping and its new-found definition of “hired bodyguard”.
The saddest thing is that the situation of street-prostituted women and youths will worsen if Bedford stands, as society will now have an extra reason for “cleaning up the streets” – “Go work inside (so we can collect our cut through licenses and taxes)”… as if all women driven to survival sex had that option. (Big unsurfaced class and race issues here.)
From martin dufresne on Jun 8th, 2011 at 9:36pm
This just in:
“Aboriginal women are overrepresented and victimized in the sex industry,
which testifies to the link between racism and misogyny in prostitution.
Decriminalizing the prostitution industry will only expand the illegal and
legal trade of buying and selling women.” — Jeannette Corbiere Lavell,
President of the Native Women’s Association of Canada:
FOR IMMEDIATE RELEASE
June 9, 2011
Women’s Groups Coalition to Argue in Court:
The Charter Does Not Guarantee Men a Right to the Prostitution of Women.
A pan-Canadian coalition of equality-seeking women’s groups will be
appearing on June 16, 2011, before the Ontario Court of appeal, in the case
between Terri Jean Bedford, Amy Lebovitch, Valerie Scott (Respondents in
Appeal) and the Attorney General of Canada (Appellant in Appeal).
The Women’s Coalition for the Abolition of Prostitution will argue to the
court to uphold the laws that forbid men from buying, selling and profiting
from women bodies, and to strike down laws that criminalize women who are
involved in the sex trade.
The Women’s Coalition rejects both the appellants’ position of maintaining
the status quo and the respondents’ position of striking down all three
provisions in their entirety.
Jeannette Corbiere Lavell, President of the Native Women’s Association of
Canada: “Aboriginal women are overrepresented and victimized in the sex
industry, which testifies to the link between racism and misogyny in
prostitution. Decriminalizing the prostitution industry will only expand the
illegal and legal trade of buying and selling women.”
“The Canadian Association of Elizabeth Fry Societies joins other women’s
groups and equality-seeking groups of women with lived experience in calling
for the decriminalization of women who are prostituted, trafficked or
otherwise exploited or objectified in and by the sex trade,” says Kim Pate,
Executive Director of CAEFS. “All women are entitled to basic human rights
to freedom from want, including adequate standards of living (either through
social assistance or a guaranteed livable income), and the provision of
social services, health services and educational options. CAEFS continues
to denounce, as criminal, the actions of those who promote and profit from
the trafficking and sexual exploitation of women and children.”
“To continue to criminalize those (mostly women and girls) prostituted is to
further punish the disadvantaged, the coerced, the exploited, the violated”
says Lee Lakeman for The Canadian Association of Sexual Assault Centers.
“But to refuse to continue to criminalize the johns, pimps and brothel
owners is to legitimize exploitation and further entrench inequality”.
Lakeman for CASAC insists that “Women’s rights compel government protection
from all forms of sexist violence and sexual exploitation under both
criminal and international human rights law. Criminal law is not enough but
essential. Tolerance of sexist violence and sexual exploitation of
individual women like all other hate crimes affects the dignity and quality
of life of all girls and women.”
The members of the Women’s Coalition for the Abolition of Prostitution:
CASAC – Canadian Association of Sexual Assault Centres
NWAC – Native Women’s Association of Canada
CAEFS – Canadian Association of Elizabeth Fry Societies
RQCALACS Le Regroupement Québécois des Centres d’Aide et de Lutte contre
les Agressions à Caractère Sexuel
la CLES – la Concertation des Luttes contre l’Exploitation Sexuelle
Vancouver Rape Relief & Women’s Shelter
AOcVF – Action Ontarienne contre la Violence faite aux Femmes
Media Contact: Hilla Kerner, 604-872-8212, .(JavaScript must be enabled to view this email address)
From martin dufresne on Jun 9th, 2011 at 9:00pm