In December, 2014, the Canadian government enacted new laws surrounding the sex industry in response to the previous laws being struck down by the Supreme Court in December, 2013. It is my contention that these laws have endangered the lives of sex workers, created harmful working conditions and increased the stigmatization which has a tremendous negative impact on the lives of thousands of individuals.
It is not necessary to condone, endorse, like or understand an individual’s choice to work in the sex industry in order to allow the profession to exist. Many of the social harms attributed to prostitution are, in fact, caused by people’s inability or their unwillingness to set aside moral judgement in favor of respecting individual rights. The reality is that sex, for some people, is a personal commodity that they have the right to rent for services. It is essential to understand the valuable and valid contribution to society that this industry provides and view those who purchase and sell the services in a different way.
The following quote is from a seven part series published in July 2014 in the medical journal Lancet:
“The seventh myth is that sex work is not work. By definition, sex work requires consent. Sexual exploitation, sexual violence and human trafficking include coercion, deceit, and absence of consent and loss of agency. Sex work is a contractual arrangement in which sexual services are negotiated through economic exchange. Under the International Labour Office’s new international labour standard, sex workers have the same entitlements as all other informal workers.”
While acknowledging the opportunities for violence and criminal activity within the sex industry, these are not synonymous. There are many forms of employment in which people are exposed to a high level of risk yet are not subject to government or law enforcement oversight and control. In every other profession, industry and business, individuals can exercise their right to make an informed decision to pursue their choice provided that all requirements, legal and otherwise, are met. Through decriminalization of the industry we can offer the same right to sex workers.
The purpose of this paper is to demonstrate that:
- The Protection of Communities and Exploited Persons was based on ideology rather than available evidence and the new laws are in direct opposition to the findings of the Supreme Court in the Bedford decision of Dec. 2013. Therefore they cannot uphold charter and constitutional rights and recreate the risks for violence, abuse and poor health for sex workers that existed under the previous laws.
- The previous justice minister, supported by the former prime minister, knowingly chose to emulate a model of law that was designed to eradicate prostitution not to increase safety or improve working conditions for workers. Moreover it has not reached the objective of eliminating the sex industry after 17 years.
- There is overwhelming evidence to show that decriminalizing the sex profession will increase safety for workers and customers, improve working conditions and reduce the transmission of infectious diseases.
- The evidence has resulted in widespread support and public endorsements for decriminalization of the sex industry internationally from organizations including: Amnesty International, the United Nations, the World Health Organization, the United Nations AIDS programme (UNAIDS), Global Alliance Against Traffickers in Women, Anti-slavery International, Human Rights Watch, the International Labor Organization, the Canadian Public Health Association and leading medical journal, The Lancet.
The stigma associated with the sex industry causes tremendous harm to workers as well as victims. The last ten years have produced a body of evidence that has done much to remove secrecy and correct misperceptions surrounding prostitution and documented the negative impact of any criminalization. Decriminalization acknowledges that these individuals are entitled to the same protections and rights as any other citizen and recognizes that they provide an essential service for a healthy society.
A BRIEF WORD ABOUT THE AUTHOR
My name is Trish Fisher and I own The Lion’s Den Adult Services Studio in Saskatoon, SK.
Over the course of the past thirty years, my careers, personal experiences and volunteer work have provided me with opportunities to develop a wide range of skill sets. My work included being the Sales Manager and instructor for Dale Carnegie Training in Northern Saskatchewan for eight years, selling real estate, and selling advertising for Rawlco Radio as well as a small local newspaper.
I spent six years as a volunteer with victim services, which is affiliated with the local police service and the justice department and received excellent, ongoing training and education. From 2002 – 2005, I was involved in the development and facilitation of a weekly support group for victims of domestic violence and abuse as well as childhood sexual abuse and participated in the 12 week community police academy offered by the Saskatoon Police Service.
I’ve raised two children and was married for 26 years. In 2011, my marriage ended and I made an informed decision to work in the sex industry. I was not emotionally broken, financially strapped or feeding an addiction and had many options for a career path. I opened The Lion’s Den Adult Services Studio to provide a safe, clean and supportive environment for sex workers. The studio complies with all the provisions, terms and conditions of the Adult Services Bylaw in Saskatoon and provides a valuable service to the community. Legalization of the industry would provide the opportunity for access to municipal and government business services, the freedom to advertise as every other profession and would be the first step to normalizing this industry thereby reducing the stigmatization.
LEGAL LANDSCAPE IN CANADA
Prostitution has not been illegal in some parts of Canada since 1759 and across the country since 1892. There have been three laws in the Criminal Code which criminalized specific activities surrounding the sex industry with the last amendment occurring in 1985. Those three laws are:
- CCs. 210: Bawdy-House Laws which made it illegal for a sex worker, client or third party to operate or be found in a place that is used for prostitution
- CCs. 212(1)(j): Living on the Avails which is often referred to as the “pimping law” which criminalized third parties in prostitution such as those running an agency, booking clients (tracking the calls) or offering protection (driver/bodyguard)
- CCs. 213(1)(c): The Communicating Law which made it illegal for sex workers, clients and third parties to communicate about the exchange of sex for money in a public place, including a private vehicle, and included negotiations for services, prices, conditions, practices, or limits and boundaries.
On December 20, 2013, the Supreme Court of Canada struck down the three laws, finding that they created severe dangers for vulnerable women.
Chief Justice McLachlin provided a clear rationale for striking down the law saying “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 risks”.
The court added: “Parliament has the power to regulate against nuisances but not at the cost of the health, safety and lives of prostitutes. A law that prevents street prostitutes from resorting to a safe haven such as Grandma’s House while a suspected serial killer prowls the streets is a law that has lost sight of its purpose…if screening could have prevented one woman from jumping into Robert Pickton’s car, the severity of the harmful effects is established”.
Valerie Scott, the third plaintiff in the Bedford case, said, “They didn’t rewrite the abortion law. They didn’t rewrite the same sex marriage law. They shouldn’t rewrite (these laws) when we have our rights. The sky is not going to fall in.” She later added, “People said that when women got the right to vote, equal pay, equal rights, and same sex marriage — all of those things, every single one, people said the sky would fall in. It did not. Society is the better for it and society will be the better for sex workers having proper civil and occupational rights.”
The court concluded that the “declaration of invalidity would be suspended for one year”, which meant that the previous laws would not be removed from the Criminal Code for one year giving parliament time to decide on a course of action. During that year, most law enforcement agencies chose not to enforce the previous laws which essentially made the industry fully legal. The results were immediate and positive. Workers were taking measures to increase their safety by hiring personnel such as drivers/bodyguards and studios were offering an alternative to some of the riskier methods of operating their business.
In Saskatoon there was no visible evidence of sex workers moving their street business to locations in front of schools, churches or parks, the studios (brothels) operated outside of residential neighborhoods and people became willing to report criminal activity without fear of prosecution. The opportunity to create safer, healthier and better working conditions became a reality.
According to legal experts, there were three viable options for consideration:
- Do nothing – allow the year to expire with no new laws or amendments leaving regulation to provinces or municipalities thereby decriminalizing the industry.
- Target customers and pimps – this action follows the Nordic model which technically allows prostitution to exist and criminalizes the purchasers.
- Criminalize prostitution entirely – which would target both sellers and purchasers.
BILL C-36 AND SUBSEQUENT PROTECTION OF COMMUNITIES AND EXPLOITED PERSONS ACT
On June 4, 2014, then Justice Minister Peter MacKay introduced Bill C-36 to reform Canada’s prostitution laws. The bill was no more than a rewritten form of the laws that were struck down. The justice department used an online survey to gauge public opinion which, based on format alone and without context, would have resulted in mostly uneducated opinions. The three days of senate hearings did not include or allow enough testimony from the people who work in the industry. Further as a result of this flawed process and the exclusion of input from the workers, the new laws recreated the conditions that existed prior to the Bedford decision and included more restrictions than have been present in over 100 years. The laws, in layman’s terms, are as follows:
- It is not a criminal act to sell sexual services.
- It is a criminal act for an individual to purchase any sexual service from anyone.
- It is now a criminal offense for any worker or 3rd party in the sex industry to communicate their services in any “public place” where a person under the age of 18 could reasonably expect to be present (almost everywhere)
- Third parties working in the sex industry may be charged for”receiving a material benefit from”, “procuring” and/or “advertising” sexual services if they do not also work in the sex industry (not including spouses, partners, children, roommates or other dependents as well as landlords who rent space at fair market value). A third party who provides goods/services to a sex worker on the same terms as they do to the general public or at fair market value is not guilty of a criminal offense. However they cannot provide the goods or services in the context of a commercial enterprise that offers sexual services for money.
- It is not illegal for a worker to advertise their own services but a criminal offense for any third party to carry the advertisement (including website hosts, newspapers, interment service providers, phone book).
(The first law provides only the illusion of upholding right to freedom of choice because the second and successive laws effectively deny that right)
- If the exchange of money for sexual services is for the purposes of creating pornography, it is legal. Since it is difficult to identify age, signs of abuse or the presence of drugs/alcohol when the only view is on camera there is no way to know if the participants are there by choice and over 18 years of age. The film industry also provides anonymity and seclusion which are often required for criminal activity such as trafficking and exploitation. In this light, it would appear that there are conditions in which there is a high level of risk and yet the previous government does not feel it needs the same oversight or restrictions.
The following is a picture of the effects on workers in the sex industry:
- Workers are once again forced to conduct negotiations in dangerous conditions that risk health, safety and lives. Lines of communication with police and support workers has been reduced, if not completely shut down, due to fear of prosecution and loss of business.
- It is illegal for anyone to sell any goods or services to a worker if they know that the worker offers sexual services for money. And while the law states that third parties and landlords must provide their goods/services at fair market value or on the same terms as they do to the general public, it is less likely that a worker will report any such exploitation due to the harsh market conditions and increased competition.
- Without a clear definition for ‘living off of the avails’, workers are reluctant to hire drivers or bodyguards or to work in pairs. Exploitative relationships are open to interpretation.
- It is illegal to work within the safety of an indoor venue with other workers if there is one owner. If a brothel closes, a small percentage of workers may try to obtain different employment, some will be forced to lean on social assistance or other forms of government programs to survive and some may be forced back into dangerous living conditions. The vast majority will join the street workers.
- Without advertising businesses do not survive. To my knowledge there is no other business, profession or industry in Canada in which advertising a legal service/product is a criminal offense. Although very heavily regulated, it is not even illegal to advertise tobacco. Advertising is usually regulated through organizations such as the CRTC, the Canadian Code of Advertising and Marketing Standards, The Canadian Competition Bureau and Advertising Standards Canada. It makes little sense that we permit provocative advertising for all manner of products (cars, clothes, fragrances, videogames) then prohibit a classified ad with no photograph, just a name and telephone number. The bottom line is that in Canada, you can use sex to sell anything except sex.
Former Justice Minister MacKay said, “Let us be clear about Bill C-36’s ultimate objective: that is to reduce the demand for prostitution with a view towards discouraging entry into it, deterring participation in it and, ultimately, abolishing it to the greatest extent possible”. He went on to say that the bill gives sex workers the ability to create better working conditions. In trying to force the industry into extinction, how would it be possible to create and maintain better working conditions? The two objectives require different attitudes, actions and strategies. He called his solution a “Made in Canada” law which emulates the ‘Nordic’ model developed in Sweden.
Here is some information to add some context to the development of the Nordic model:
Professor Jane Scoular, from the University of Strathclyde in Glasgow, published an article in 2004 in which she critically examines the Swedish position on prostitution with the aim of providing a theoretically informed context for comparative assessments. Her research gives us a better understanding of the culture and political environment in which this model was created. The article provided the following information:
- In their final evaluation in 2001, the authors of the study done by The National Police Board in Sweden noted that the results were negative due to more difficult and stressful conditions for the most socially marginalised workers. All evaluations have clearly pointed to an increase in hidden prostitution where little is known about conditions and have documented the law’s negative impact on those still involved in street work. The government response has been to say that the law is not about improving conditions but is about ending prostitution and that ‘any negative impact’ on sex workers is outweighed by ‘the message’ conveyed by the law.
- In his book, Language and Sexuality, Don Kulick asserts that the central aim of the Swedish law is an attempt to change attitudes to prostitution calling it “a culmination of nearly a decade of work by feminist groups and centre/left politicians to convince lawmakers that they should ‘send a message’ that ‘society’ does not accept prostitution.
- In her book, Prostitution: An International Handbook on Trends, Problems and Policies, Nanette Davis stated, in part, that “the more attention given to prostitution as a ‘significant’ and ‘special’ problem requiring extraordinary measures, the less we see the ordinariness of prostitution as a normal response to gender distinctions and market and political inequalities”.
In her conclusion, Professor Scoular indicates that the model in Sweden is designed to support the nation’s cultural identity of uniformity and a moral code as set out by the government. This model supports an approach that is “ultimately weak in terms of dealing with the complexities and contradictions inherent in analysing the selling of sex across space and time, without regard for the structuring roles of culture, class and race.”
In July of 2014, lawyer Gunilla Ekberg, one of the architects of Sweden’s anti-prostitution strategy, presented testimony during the three day summer session in the Canadian House of Commons regarding Bill C-36. Afterwards she said, “Not only are (the laws) discriminatory but they are contrary to the human rights obligations that Canada has signed on to.” She added “In the 16 years that we have been doing this (in Sweden), we have not been able to eliminate prostitution and trafficking completely.”
Different countries, cultures and government oversight will require different approaches to this issue. It is important to understand the objectives for each which can be very different. It is difficult to exactly duplicate any model without those considerations. For this reason, it is also essential to include representation from workers in the development of policy or law and then in any future regulatory body. They are the best source of knowledge regarding what is needed and their input is often a critical missing piece.
SELLING SEXUAL SERVICES
The sex industry provides an important, valuable and necessary service and is entitled to the same considerations, benefits, and government assistance or incentive programs as any other business. The majority of research done on prostitution in the last 15-20 years has challenged and refuted much of the common beliefs about the sex industry and shown that the claims of rampant underage involvement, assault, forced labor and coercion have been exaggerated.
It is impossible to definitively document the frequency of victimization in such a hidden population and often it is those who are most seriously or frequently victimized who contact service providers and give interviews. Due to the stigmatization of association and, therefore, the necessity of secrecy for many workers, it is also likely that the majority of information comes from those who are exiting the industry. This has led to generalizations and sensationalized reporting of violence and crime within the industry that provides, at best, biased and skewed numbers.
There have been many studies published by world renowned medical professionals and institutions to provide sufficient evidence that an active sex life can lead to healthier, happier and more productive people. The need for intimate contact, whether any sexual acts occur or not, is as natural as breathing for most people and the benefits are not limited to those engaged in an intimate, emotional relationship or marriage. For some people, intimate human relationships may be difficult or impossible to maintain for a variety of physical, mental or social reasons yet they also have those needs and desires. For those individuals, commercial sex may be the only outlet for consensual sex and they should not be labeled as criminals
WHO WORKS IN THE INDUSTRY?
The previous Justice Minister’s statement that “the vast majority of those who sell sexual services do not do so by choice and the vast majority of those involved in selling sexual services are victims” is a false and unsubstantiated misrepresentation of those who work in the sex industry resulting in the criminalization of activity that should not be deemed illegal, ineffective legislation that infringes on human rights and unnecessary endangerment for workers (as was determined by the Supreme Court of Canada, December, 2013).
It is not uncommon to hear people say that no one wakes up one morning and decides that today they will become an escort or prostitute. In fact, they absolutely do, just as they would decide to enter any other job or profession. It is dangerous to assume that everyone involved in the sex industry is a victim. Individuals DO make the adult, informed and free choice to enter the industry.
A survey carried out by Dr Teela Sanders, principal study researcher out of Leeds University, says that more than 70% of UK sex workers have previously worked in healthcare, education or charities, while more than a third hold university degrees. The survey found that 91% of the respondents feel that their work is flexible, two thirds described it as fun, and the level of job satisfaction is high. The study also showed that a large proportion had experienced stigma and lived in fear of being recognised. These findings suggest that sex workers are publicly and socially engaged individuals who provide a variety of services across multiple sectors of society.
The survey is one of the largest ever undertaken in the industry, including 240 sex workers, and was undertaken in partnership with National Ugly Mugs, a UK based scheme to alert sex workers to potentially violent clients. The research was launched at the Policy, Policing and Protection Conference on March 2, 2015 and has received widespread coverage. Dr. Sanders commented: “Societal attitudes need to change in order to minimize the stigma underpinning sex work and consequently reduce the harm that prejudice has on sex workers.”
Alex Feis-Bryce, director of services at National Ugly Mugs, said: “Many people, particularly politicians, fall into the trap of seeing sex work as inherently bad without actually asking sex workers what their experiences are and what challenges they face. This research challenges this perspective. It is clear from this research that recognizing sex work as work and acknowledging its diversity is crucial. Policy makers fall into the trap of assuming that they know better and introducing sweeping proposals intended to ”save sex workers.” He added that stigma was more of a negative aspect of their work than exploitation.
WHO ARE THE CUSTOMERS?
The former Justice Minister’s characterization of customers as “perpetrators, perverts, or those who are consumers of this degrading practice” is another inaccurate and harmful description that will lead to prosecution of citizens for a normal human desire.
Any assumption that the exchange of sex or companionship for money is intrinsically tied to violent, exploitative or harmful intentions is not based on fact and creates an illusion of criminals on the hunt rather than the reality of customers seeking sexual gratification. This view suggests that customers buy women rather than use sexual services and therefore they are labelled as predators. The purchase of these services is often portrayed as being tied to violent behaviors such as domestic violence, rape, sexual slavery and exploitation when the reality is that, while these things happen within the industry, they occur in society as a whole and cannot be tied to an industry.
With all of the research done regarding sex workers, the purchasers have been mostly invisible. A study was commissioned by Safe Exit at Toynbee Hall in 2007 to explore the decision-making processes of men who pay for sex. Three researchers from the London Metropolitan University conducted the study using questionnaires and telephone interviews. Regarding what would cause them to stop, a minority mentioned criminal sanctions suggesting that current law enforcement measures are not viewed as deterrents. In Canada it is currently illegal to buy the services and yet the industry continues to operate.
As mentioned earlier, there are individuals who have difficulty maintaining intimate adult relationships and yet have the same needs. In Germany, Switzerland, Denmark and Holland there are legalized sexual assistants for the disabled and there is currently a project underway in Italy called LoveGiver proposing similar legislation. These professionals are trained to become sexual partners and address the unique needs of each client. One mother who utilized these services for her son who suffers from Williams syndrome said, “In Italy, we still have the notion that a disabled person is not a person…there is a person whose needs must be respected.”
Commercial sex provides individuals with an opportunity to have their needs met without having to conform to social norms that they may not agree with. For the workaholic, widower, or recently divorced male this is a reasonable option. If they are also a father, there is the consideration of not exposing their children to anyone other than a potentially serious partner. When it is negotiated between consenting adults this exchange seems humane rather than deviant.
HOW PROSTITUTION OPERATES:
There are generally four ways in which to sell sexual services with some crossover such as a street worker who may also do some out call business. The diversity is such that certain types of workers or customers may be attracted to a certain segment of the industry either by worker or location. The breakdown of the four methods are:
Street prostitution – these women are often portrayed as the face of the industry and are the workers that many people are familiar with. They are the most vulnerable and face the highest level of danger. Due to the fact that they are transient, often work alone and are out for long periods of time through the night, they become more exposed to predators such as Robert Pickton. This group of women benefitted greatly from the decision by the Supreme Court to abolish the communication law surrounding prostitution by providing them with the time to assess a situation and negotiate terms prior to being isolated from the possibility of aid. The streets are often where you will find many victims of coercion, trafficking, exploitation and those who are impoverished or addicted and feel they have few other options. This is not universally true as many women also choose the “stroll” or street work for the absolute control over their business, the freedom to choose working hours and anonymity.
Out/in call business – the women who choose this way to operate do so through advertising on the internet, in newspapers and phone books. They arrange to meet a client at a hotel or home and often require a name, phone number and credit card number to aid in establishing credibility which can reduce their risk to potential danger. Some women employ the services of a driver and/or bodyguard or work in pairs to further increase safety. These workers usually enjoy the benefits of choosing hours of availability, an opportunity to build a steady client base and control over negotiation for services. Women who travel from city to city are most often in this category and can have a regular client base across several cities. These women face other situations that may put them at risk such as more than one person at the agreed upon location, the client being unable to pay the negotiated fee or the presence of illegal substances…all of which can be reduced by allowing them to hire personnel.
Escort agencies – these businesses run with any number of professionals working under the same company and operate like the out call service. The agencies rely on advertising for business and work to establish a regular client base. They can offer a customer choices based on type of service requested or personal preferences. Each agency establishes their own policies, procedures, fee structure, contracts, and services as is the case with any individual business. This method of operation offers increased safety if the company tracks the appointments, builds a regular base of clientele and is able to employ drivers or bodyguards.
Studios and brothels – this is often the safest way to work in the industry. It offers the least exposure to danger as there is likely several people in the building and often a security system. There are usually set hours of operation and shifts are arranged between the studio and workers. Each brothel would run according to the business practices of the owners/operators. There is an added benefit of a customer base who walk in without appointment and often become clients of the studio. A receptionist is typically on site to handle the day to day business. If the location is discreet and the studio provides a safe and clean environment it becomes one of the best options for operating in safety and out of the public eye.
The sex profession is not synonymous with all crimes involving sex. The criminal activity that occurs is not a result of the existence of the industry and will not be reduced or eradicated in the absence of the profession. Canada’s Criminal Code addresses the crime while decriminalization will allow for resources to be used where they are most needed. Following are two recent studies outlining the dangers of criminalizing any aspect of prostitution while the third is a study which shows how legalization can reduce criminal activity:
- British Medical Journal: between January and November 2013, researchers from the Gender and Sexual Health Initiative of the BC Centre for Excellence in HIV/AIDS and the University of British Columbia conducted in-depth interviews with 31 street-based sex workers in Vancouver to examine their experiences and negotiation of safety and health following implementation of the Vancouver Police Department’s enforcement guidelines introduced in January 2013. The policy focused enforcement on clients and third parties, like the “Nordic” model. The result showed sex work- related arrests increased from 47 in 2012 to 71 in 2013. It also noted that there was no decrease in rates of work-related physical or sexual violence with 24% of 275 workers in 2012 experiencing violence compared to 25% of 236 women in 2013. Dr. Kate Shannon stated: “The findings clearly show that criminalization of clients in Canada risks recreating the same devastating harms to the health, safety and human rights of sex workers as the last two decades of missing and murdered women. Sex workers in the research were very clear: where clients continue to be targets of police, sex workers’ ability to protect themselves from violence and abuse or access police protection is severely limited.”
- A second report and legal analysis of the research was done by The Pivot Legal Society, Sex Workers United against Violence and GSHI regarding the impacts of criminalization of clients on sex workers safety. Katrina Pacey, litigation director at Pivot Legal Society stated, “This important new research concludes that using the criminal law to target clients perpetuates the life- threatening conditions that sex workers faced under the laws that were struck down in the Bedford case. If this approach were to become the law in Canada, it would create the same unconstitutional harms the Supreme Court found are a violation of sex workers’ right to security of the person.”
- A court case in Rhode Island in 2003 brought to light that an amendment in state law in 1980 actually decriminalized indoor prostitution. It took until 2009 to close the loophole which provided two economists, Scott Cunningham and Manisha Shah, an opportunity to conduct a “natural experiment”. Their report showed that during that period, rape offenses fell by 31% (824 fewer reported rapes) and incidences of gonorrhea by 39%. No other crimes such as robbery, murder, assault, and burglary or car theft saw a decline which suggests that the results were not due to an increase in or more effective policing. Their conclusion: “Despite the industry being huge and persistent, almost everything we know about decriminalizing prostitution is rooted in speculation rather than good data. Prior research has been plagued by problems like relying on small sample sizes that aren’t necessarily representative of the industry. Sex work is a predictably fraught policy issue because it gets entangled in matters of morality. But this study adds to a body of research that suggests criminalizing prostitution causes higher rates of victimization and unsafe practices.”
Decriminalization is the only way for workers to have access to government services such as EI benefits or government subsidized day care. As I started up my business the stigmatization was evident. Four law firms and six accounting offices declined to work with me, no Saskatchewan company would carry my business insurance (currently out of Ontario) and the first company to facilitate our credit transactions cut us off. We contacted approximately thirty property owners before finding a landlord. Due to this experience, it is unlikely there would be a significant increase in indoor venues.
There is also a direct impact on the reporting and prosecution of crimes within the industry when it’s legal. In March of 2014, an unnamed sex worker in Wellington, N.Z. was awarded about $25,000 in damages after a tribunal ruled that her brothel manager had violated the country’s Human Rights Act and caused her “humiliation, loss of dignity and injury to feelings.” This is an important case because it would never make it to court if any part of the sex industry was criminalized. It sent a clear message that crime is not tolerable anywhere including the sex industry.
Law enforcement has made some progress in rescuing victims of human trafficking such as a recent case in Canada demonstrated. In that case, those arrested are being charged with trafficking in persons, forcible confinement, child pornography and sexual assault with a weapon, laws which are already in the Canadian Criminal Code. The new laws surrounding prostitution weren’t even applicable here because they don’t target criminal activity, they further marginalize people who already face harmful stigmatization and they criminalize normal human behavior. Even the criminals are entitled to more protections and rights than we are.
Regarding workers’ health, an UN- convened commission found that by making any part of prostitution illegal, workers were less able to protect themselves or to seek treatment should they become infected. Specifically regarding HIV, Steffanie Strathdie authored an article about the research which showed that up to 46% of HIV infections could be averted by legalization. In New Zealand, where prostitution is legal, .01% of persons between the ages of 15-49 are infected with HIV. According to UNAIDS, the prevalence is more than double that in Canada.
I am becoming more engaged in the global movement to decriminalize the sex profession and had the opportunity to meet two long time activists while on a trip to the Netherlands in 2015. Mariska Majoor owns the Prostitution Information Center (PIC) located in Amsterdam’s Red Light District and Lyle Muns is the official spokesperson for PROUD, the Dutch Union for Sex workers. Having been involved in this work for many years, they were able to provide a lot of information regarding the work being done and were very interested in the current legal situation in Canada. We are all encouraged by the signs of progress such as a 60,000 member union for sex workers in Asia. We also know that as more workers come forward to demand their rights, it will become impossible for governments and law enforcement agencies to ignore or deny the evidence we are bringing to light.
It is a futile exercise to attempt to rescue people who do not want or need to be saved and are not victims of crime but rather victims of moral judgement. Removing the stigma attached to the profession makes it more likely that victims will report criminal activity, that law enforcement will receive valuable information and it will be more difficult to commit crimes within the industry. Recently, Tom Flanagan (a distinguished fellow in school of Public Policy at the University of Calgary) said that “the prostitution bill is a bizarre work of moral panic…eradication is for moral crusades and millenarian transformers of the human condition.”
OPTIONS FROM AROUND THE WORLD
There have been attempts all over the world to legislate prostitution, some seeking to control the criminal activity surrounding the sex industry and some to outlaw the profession because women are viewed as victims regardless of whether or not they are. There are models currently in effect which have proven to reduce criminal activity without making criminals of workers or consumers of the industry. To date, the most thorough and extensive research and review has been conducted in New Zealand where they have implemented and tracked decriminalization with regulation. Sweden has developed and implemented the Nordic model targeting consumers and the Netherlands have made the industry legal in the Red Light District. Although the reviews done by the latter two are not as thoroughly documented, they have been published.
The review of the complete legalization of prostitution in the Netherlands determined that by having no controls in effect, there was too much opportunity for illegal operations to exist and thrive. The doors were open for organized crime to set up shop and engage in illegal activity. Yet even after these findings, the Netherlands are not planning to outlaw prostitution, but rather to put some controls in place to regulate the industry and minimize the opportunities for organized crime to be involved.
The government has been preparing new prostitution laws aimed at tackling the causes of the persistence of abuses in the sex industry. The approach consists of reducing local and regional differences, gaining more visibility, gaining some control over all forms of prostitution to bring a form of regulation and facilitating the monitoring and enforcement. The core of the bill is formed by the introduction of a mandatory and uniform licensing for the exercise of a sex business to create more uniformity. The bill includes license conditions that the operator must meet. Municipalities with this bill were given the opportunity to choose among conditions for a zero option. Furthermore, the bill provides for:
- a registration requirement for all prostitutes
- a number of measures and instruments to facilitate surveillance and enforcement
- the criminalization of the use of an illegal supply of prostitution.
It has been suggested that there will be another review to determine if this has the desired effect of allowing the industry to continue while reducing the rampant influx of organized crime and associated activity, although no specific time frame was given for when that would occur.
The published review of the Nordic model used in Sweden provided some insight to the desired objectives of the government and the measurement for success. Monitoring and evaluation of the model was first delegated to the National Board of Health and Welfare of Sweden, which produced 3 reports (2000, 2004, and 2007). These reports acknowledged the difficulties of evaluation and provided no hard evidence that the law had in any way achieved its objectives. The report from 2010 included an interesting observation stating,
“Prostitution and human trafficking for sexual purposes are complex, multifaceted social phenomena that take place to some degree behind closed doors. Factors such as increased internationalization and a growing number of people advertising on the internet make it difficult for the police and social services to fully grasp the extent of these activities. The knowledge we have about prostitution and sex trafficking can rarely be described with precise figures….we realized that it would not be possible in the framework of this inquiry to produce the precise knowledge about prostitution that politicians and debaters request, but which no authorities or researchers have been able to generate in the nearly eleven years that the ban against the purchase of sexual services has been in place.”
The report went on to state that their objective of reducing street prostitution and human trafficking had been achieved. Sweden now reports that street prostitution has been reduced by 50% however there has been an increase in indoor prostitution, which is harder to track. They noted the increase of street prostitution in surrounding countries. It was also noted that judges, senior police officials and the Minister of Labor in Sweden had been caught purchasing sex.
New Zealand enacted the Prostitution Reform Act (PRA)20 in 2003 which “decriminalized prostitution whilst not endorsing or morally sanctioning prostitution or its use”. The laws and controls used to regulate other business have been applied to the profession of prostitution. The purpose of the PRA is to:
- safeguard human rights of sex workers and protect them from exploitation
- promote the welfare, occupational health and safety of sex workers
- be conducive to public health
- prohibit the use of persons under 18 in prostitution
A committee consisting of eleven members appointed by the Minister of Justice, were commissioned to research and document the effects of the PRA. They delivered their final report in 2007. It stated “that the research undertaken challenges, and in some cases refutes, commonly held perceptions about the sex industry and those who work in it”. For example they consider the media have exaggerated the number of sex workers and underage involvement in prostitution.
In regards to trafficking, the report stated that “the argument that trafficking in humans and prostitution are inexorably linked is in part due to policy decisions made by the United States. Although much international dialogue surrounding both trafficking and prostitution claims prostitution and trafficking are often linked, the extent of this link is debatable. The Committee considers that in the case of New Zealand, there is no link between the sex industry and human trafficking”.
New Zealand is more likely to deal with the forcible movement of persons within their country (whether for sex or other purposes) under kidnapping, slavery or other related forms of offending and has laws against use of persons under 18 years in prostitution, whether or not they have been transported internally or internationally. In addition, the PRA makes it an offense to compel any person to provide commercial sexual services or earnings directly from prostitution.
In their assessment regarding criminalizing clients their research concluded that “the evaluation of these approaches suggest little change in the overall level of prostitution services provided, with demand being either relocated elsewhere or in the transactions being negotiated in more clandestine local environments.”
The conclusion of the report stated that in the five years that the PRA had been in force “the sex industry has not increased in size and many of the social evils predicted by some who opposed the decriminalization of the sex industry have not been experienced” and that “on the whole, the PRA has been effective in achieving its purpose and the Committee is confident that the vast majority of people involved in the sex industry are better off under the PRA than they were previously”.
Saskatoon, Canada provides another positive model that is working effectively. In January, 2013 the City of Saskatoon and the Saskatoon Police Service (SPS) enacted Bylaw No. 9011. This makes it mandatory for each person, agency and worker within the industry acquire a city business license. The requirements for the license include proof of Canadian citizenship, proof of age (must be 18+), a Canada wide criminal record check and a business licensing fee. After city approval, each person must then obtain a photo identification card from the SPS vice unit. Studios and brothels are required to operate within specific industrial or light industrial areas situated several city blocks away from schools, churches and residences and there cannot be two such businesses on the same block. Workers cannot work out of their homes and licenses must be renewed each year.
On May 1, 2014, Saskatoon Police Chief Weighill reported the review of the bylaw to the Board of Police Commissioners stating, “It has not only opened up the doors of communication with these individuals, but has developed a good positive working relationship with most. Our main concern for the performers is that they are doing it voluntarily, that they are not being exploited and that they are of age.” He reported that a 17 year old female victim was identified and “without the Adult Service Bylaw 9011 in place, police most likely would not have been able to identify the underage victim”. The report also noted that “workers in the adult services industry have expressed they feel more secure coming to police with issues”.
At the time of receiving the photo ID, officers are presented with an opportunity to engage directly with each person and assess whether or not there may be any force or coercion involved. For the people in the industry, it’s an opportunity to engage with the police without fear. In my opinion, the most significant result was how the city, police service and workers in the industry came together to make this work. It truly felt like a community effort to achieve a common goal. While it is still relatively new, it has already proven to be effective and will likely have positive long term results.
This demonstrates that when people are prepared to work together a solution is possible. Often our objectives are the same which can only become apparent if the process is one of inclusion. There needs to be an open dialogue with mutual respect for everyone’s concerns as, with compassion and understanding, we begin to see how everyone is and will be affected. Once personal morals and judgments are removed, the evidence becomes the even playing field from which we find a solution.
Another excerpt from the previously mentioned HIV/AIDS study:
“The reality most people wish to ignore is that much of our challenge in addressing sex work and sex workers is the need to understand human sexual desires and needs, including our own. We might prefer to think that sex and money were unrelated, that sex was somehow immune from the transactions so common elsewhere in our lives. But why should this exception be so? And why should we condemn and criminalize the exchange of money for sex, especially if the severely adverse conditions we create for such exchange hurt women and men and often fatally so? The persistence and ubiquity of sex work suggests only that sex, and the human desire for sex, is a normal part of human societies. Sex work is part of the human story. Accepting and embracing sex work – supporting those engaged in sex work to protect their health and bodily integrity and autonomy – should be our humane, as well as our pragmatic approach to the reality of our human lives.”
As the global movement to decriminalize the sex industry gathers momentum, Canada can be a world leader in upholding women’s and human rights by repealing the current laws and implementing decriminalization here.
There has been enough documented research to highlight that the Nordic model is still problematic whereas decriminalization has produced positive results for workers in the industry without increasing the rate of crime. There is evidence that we can draw upon to create a safer and healthier environment for the sex industry as a whole and it is essential to employ experienced and impartial researchers for any reviews undertaken. Consultations with and evidence from affected communities must be considered in any future policy or legislative discussions and regulatory bodies. Furthermore we need to consider how conversations at the federal level coincide and work with those at a provincial and municipal level.
There is so much at stake for the thousands of lives that are affected when any aspect of the sex industry is criminalized. It is time to reverse the decision to enact these new laws or demand a new constitutional challenge.
Shannon, Kate et al. Global Epidemiology of HIV Among Female Sex Workers: Influence of Structural Determinant: Introduction and Series of 7 Papers about HIV and Sex Workers. The Lancet. July 22, 2014
Supreme Court Judgements. Canada (Attorney General) v. Bedford, 2013 SCC 72,  3 S.C.R. 1101 DOCKET: 34788. December 12, 2013
Stunt, Victoria. “Sex Workers Fear New Prostitution Laws Will Compromise Safety”. CBC News. Web. February 7, 2014
The Canadian Press. “Supreme Court Strikes Down Canada’s Prostitution Laws”. CBC News. Web. December 20, 2013
The Canadian Press. “Peter MacKay Insists New Prostitution Bill will Protect Sex Workers”. CBC News. Web. September 9, 2014
Scoular, Jane. Criminalizing Punters’: Evaluating the Swedish Position on Prostitution. The Journal of Social Welfare and Family Law. February 28, 2004
The Canadian Press. “Prostitution Bill Likely Unconstitutional MPs Told on day 3 of Hearings”. CBC News. Web. July 9, 2014
Taylor, Diane. “Most Sex Workers Have Had Jobs in Health, Education or Charities – Survey”. The Guardian (UK). Web. February 27, 2015.
Harrison, Scott. “Sex Workers Find Job ‘Fun’, ‘Flexible’ and ‘Rewarding’. Western Morning News (UK). Web. March 2, 2015.
Coy, Maddy et al. It’s Just Like Going to the Supermarket: Men Buying Sex in East London Reportfor Safe Exit at Toynbee Hall. Child and Woman Abuse Studies Unit, London Metropolitan University. 2007.
Lai, Jessica. “Legalizing Sexual Assistants for the Disabled”. First to Know. Web. July 11, 2015.
Krusi, A. et al. Criminalization of Clients: Reproducing Vulnerabilities for Violence and Poor Health Among Street-based Sex Workers in Canada: a Qualitative Study. British Medical Journal. June 2, 2014.
Pivot Legal Society, Sex Workers United Against Violence (SWUAV), Gender and Sexual Health Initiatives of the BC Centre for Excellence in HIV/AIDS (GHSI). My Work Should Not Cost Me My Life: the Case Against Criminalizing the Purchase of Sex in Canada. British Medical Journal. June 3, 2014.
Cunningham, Scott and Shah, Manisha. “Decriminalizing Indoor Prostitution: Implications for Sexual Violence and Public Health”. National Bureau of Economic Research: NBER Working Paper No.20281. July, 2014.
Renzetti, Elizabeth. “Prostitution is Nothing More Than Work. Treat it That Way”. The Globe and Mail. Web. March 10, 2014
Flanagan, Tom. “The Prostitution Bill is a Bizarre Work of Moral Panic”. The Globe and Mail. Web. June 20, 2014.
Netherlands Parliament. Proposal EK 32 211, A: Novelle Act to Regulate Prostitution and Combat Abuses in the Sex Industry. The Netherlands Ministry of Justice. March 1, 2014.
Skarhed, Anna (Chancellor of Justice). Swedish Government Report SOU 2010:49 – The Ban Against the Purchase of Sexual Services. Swedish Institute. November 2010.
New Zealand Ministry of Justice. New Zealand Prostitution Reform Act (PRA) Policy Development N.Z. Ministry of Justice. 2003.
Prostitution Law Review Committee. Review of the New Zealand PRA. N.Z. Ministry of Justice 2003.
City of Saskatoon and Saskatoon Police Service (SPS). “City of Saskatoon Bylaw No. 9011”. City of Saskatoon. July 1, 2012.
Weighill, Clive (Chief of SPS). “Public Agenda: Report on the Impact of Adult Services Bylaw – Adult Entertainment Venues”. Report to Board of Police Commissioners. May 1, 2014.