Canada’s Evolving Prostitution Laws: From Criminalization to Reform
Sex Work and Legal Provisions in Canada
Week 4 – The legal provisions stated that sex work should be confined to specific areas. The first criminal code made contraception and abortion illegal. With declining birth rates among the white population, laws were enacted to instill in women a sense of duty to bear children, framing the law as morally right. The prevailing view was that the best way to reform women in prison was to present them with a model of appropriate behavior, a stark contrast to the operation of men’s prisons. Police were motivated to reform specific segments of the population, with women’s families and employers often writing letters to have them incarcerated for reform. Andrew Mercer Ontario Reformatory for Females.
From Average Joe to Deviant John: Changing Views of Sex Trade Clients in Canada
Chapter 5 – UMMNI KHAN – In the early Victorian era, clients were seen as ordinary men satisfying their natural libido (Backhouse, 1985). By the late nineteenth century, the risk of sexually transmitted infections became a social concern (McLaren, 1986). Later, in the second half of the 1900s, male clients became more visible as objects of inquiry and social control, with this scrutiny intensifying in recent decades. By 2014, a man who buys sex was viewed as a sexual deviant, a danger to women and society.
Evolving Attitudes Toward Clients
The Necessary Evil: Tolerance of Sex Work in the Victorian Era
During the Victorian era, prostitution was seen as a way for married men to satisfy surplus passion and as a form of marital birth control. This view saw sex work as a safety valve for male lust that could not always be contained within marriage. The hydraulic theory of male sexuality suggested that some men needed an outlet for surplus desire to prevent perversity. Sex workers were often seen as working-class women prone to indecency.
The Inevitable Evil: Minimizing the Supposed Harm of Sex Work
Purchasing sex was seen as an “irregular indulgence of a natural impulse.” Unlike the “necessary evil” perspective, this view did not see sex work as producing any substantial social good but reluctantly accepted that it was impossible to fully eradicate. The most society could achieve was to control and regulate sex work, minimizing its harmful effects, such as the nuisance and the presumed spread of disease. In 1865, Canada’s Contagious Diseases Act required sex workers to go to the hospital for 3 months, while clients did not, as clients were seen as potential victims of disease-carrying sex workers.
The Social Evil: Eradication of Sex Work
Around the time of Confederation, prostitution was seen as a social evil rather than a necessary or inevitable one. Those who opposed sex work from a victim-centric perspective often conflated prostitution with sex trafficking, then called white slavery. White slavery invoked a storyline of an innocent, white female being kidnapped and forced into sexual servitude by a racialized man.
Two specific types of othered clients did surface in both feminist and conservative social purity literature: aristocratic clients and racialized clients. The selling of sexual services was understood to be caused by working-class vice, vulnerability, or disposition, while the buying of sexual services was sometimes blamed on the decadence of wealthy aristocratic men.
Clients as Objects of Inquiry
Any desire or action to seek paid sex was considered deviant, and those who did so needed to be cured. One study, “Why Married Men Visit Prostitutes,” offered various answers, blaming the wife for being sexually stingy, blaming circumstances such as illness or work, or blaming the man for being neurotic, craving variety, or enjoying the illicit nature of the act. Current scholarship and policy on clients can be divided into three categories: epidemiological (disease-management scholarship), sociological (addresses client characteristics, motivations, and risks), and prohibitionist (deems all clients deviants and criminals).
The “Social Evil” Redux: The Client as Sex Deviant and Criminal
During this time, it seemed as if white women were speaking on behalf of all women. Section 286.1 of the Criminal Code, entitled “Commodification of Sexual Activity,” designates the purchase of sex as a hybrid offense, subject to either an indictable or summary conviction. The punishment ranges from a minimum fine of $500 to a maximum jail term of five years. Police also send letters to their homes, which can be found by their family members to shame them. Court diversion programs allow persons arrested for purchasing sexual services to opt for an educational program instead of facing a trial and possible conviction, involving lawyers, ex-prostitutes, nurses, wives, and former sex buyers (sex addicts).
Pimps, Partners, and Procurers: Criminalizing Relationships
Chapter 6 – KARA GILLIES AND CHRIS BRUCKERT – The reasons indoor sex workers elect to work for or with third parties include improved access to occupational health and safety measures (e.g., screening, safe calls, and the presence of others), training and mentorship, protocols for client negotiations, and business services (e.g., administration, advertising, and booking). Some sex workers lack the interest, resources, time, or skills to run a business, and others prefer “to leave the work of client management and public relations to a third party because of the emotional labor and infringement on personal space.”
Personal and Professional Relationships: Street-Based Sex Workers
There is an expectation of an acceptable standard of living. In R. v. Downey (1992), “the pimp personifies abusive and exploitative malevolence” (p. 36), and the case’s reference to “the cruel, pernicious and exploitative evil of the pimp” (p. 32). This trope continued during the 2014 parliamentary hearings leading up to PCEPA, with Minister of Justice Peter MacKay asserting that this “bill would crack down on those predators, pimps, and johns who fuel the demand for this inherently dangerous activity” (Government of Canada, 2014a). The panic about the malevolent “pimp,” combined with the government’s stated objective of discouraging the exploitation, commercialization, and institutionalization of sex work, underpins Criminal Code sanctions against procuring (s. 286.3) and receiving a material benefit from another person’s sex work (s. 286.2). The procuring provision makes it illegal to “cause, induce or have persuasive effect” (Deutsch v. The Queen, 1986, para. 32) on someone to offer or provide sex work services as well as to facilitate the purchase of sexual services, even without compensation or material benefit. This situation criminalizes the beneficial role that both personal and business parties play in connecting workers with clients, including security measures such as screening and holding money. The “material benefits” provision of the Criminal Code, which purports to prevent exploitation by criminalizing financial or other material benefits to third parties, negates sex workers’ agency and exposes the paternalistic assumption that women in the sex trade lack the judgment and capacity to determine who should receive their earnings. The “living on the avails” offense assumes, absent evidence to the contrary, that a person who lives with or is in the habitual company of a sex worker is proof of material benefit, including substance abuse (Criminal Code, 1985, s. 286.2(5)(c)).
Champagne, Strawberries, and Truck-Stop Motels: Subjectivity and Sex Work
Chapter 13 – VICTORIA LOVE – Thirst for adventure. Started to wonder whether I was being exploited and whether I was doing something bad for women; I began to experience deep and crushing shame. My change of perspective about sex work was an attempt to cope with profound shame and also marked the start of my transition to a bourgeois, feminine subject position – desire to be a “good woman.” When I reflect on my experiences, I can see that I have been able to use my work in the sex industry to achieve a comfortable level of material and financial stability while still maintaining control over my time.
Disabled Men’s Intimate Realities of Purchasing Sexual Pleasure
‘I never felt like she was just doing it for the money’: Disabled men’s intimate (gendered) realities of purchasing sexual pleasure and intimacy Kirsty Liddiard sexual citizenship refers to the claims to (sexual) rights that are made by a sexual minority group. Disabled people’s (and others) calls for access to commercial sex as an embodiment of sexual rights to expression and pleasure are becoming increasingly normalized within certain disability activist spaces. Motivations to buy sex were based on ‘excitement; sexual services not provided by current partner; sexual variety; convenience; lack of emotional ties; loneliness; and an inability to form sexual relationships.’ Sex was purchased because it was an ‘easier’ process than investing money and time in dating (non-sex-worker) women, where everything is directed towards you.
Public Consultation on Prostitution-Related Offenses in Canada
Current Criminal Laws Governing Prostitution
Adult prostitution is not illegal in Canada; however, the Criminal Code prohibits three types of prostitution-related activities:
- Activities related to brothels, or “bawdy houses,” as they are called in the Code (sections 210 and 211);
- Procuring and living on the avails of prostitution (section 212); and
- Communicating in a public place for the purposes of prostitution (section 213).
The Supreme Court of Canada’s Bedford Decision
The Supreme Court of Canada’s decision in Bedford v. Attorney General of Canada found three Criminal Code prostitution provisions unconstitutional:
- The bawdy house offense with respect to the practice of prostitution (section 210 prohibits keeping and being an inmate of or found in a bawdy house);
- The living on the avails offense (paragraph 212(1)(j), which prohibits living in whole or in part on the earnings of prostitutes); and
- The communicating offense (paragraph 213(1)(c), which prohibits communicating in a public place for the purpose of engaging in prostitution or obtaining the sexual services of a prostitute).
The Supreme Court found that these offenses violate prostitutes’ right to security of the person, as protected by section 7 of the Charter, by preventing them from taking measures to protect themselves while engaging in a risky, but legal, activity. Such protective measures include selling sexual services indoors, hiring bodyguards and drivers, and negotiating safer conditions for the sale of sexual services in public places.
The Supreme Court’s decision does not take effect for one year. If there is no legislative response, the result of this decision would be decriminalization of most adult prostitution-related activities:
- Indoor prostitution (e.g., in a house or apartment, massage parlor, or strip club);
- Providing services to prostitutes (e.g., as a bodyguard or a driver); and
- Communicating for the purposes of purchasing or selling sexual services in public places (e.g., in the street).
Existing International Approaches to Prostitution
Internationally, prostitution is generally treated in one of three ways:
- Decriminalization/legalization: Jurisdictions such as Germany, the Netherlands, New Zealand, and Australia have decriminalized and regulated prostitution.
- Prohibition: All states in the United States, with the exception of the state of Nevada, prohibit both the purchase and sale of sexual services, as well as the involvement of third parties (e.g., pimps) in prostitution.
- Abolition (the “Nordic Model”): Sweden, Norway, and Iceland have adopted a criminal law response that seeks to abolish the exploitation of persons through prostitution by criminalizing those who exploit prostitutes (clients and third parties) and decriminalizing prostitutes themselves. These countries have also implemented social programs to help prostitutes leave prostitution (e.g., exit strategies and supporting services).
Canada’s current approach is a hybrid of decriminalization and prohibition – prostitution itself is legal, but almost all activities associated with prostitution are criminalized. A similar approach is taken in England, Ireland, and Scotland.
Week 5-
Misrepresentations, Inadequate Evidence, and Impediments to Justice
Chapter 8 – TAMARA O’DOHERTY, HAYLI MILLAR, ALISON CLANCEY, AND KIMBERLY MACKENZIE – Anti-trafficking provisions in the Criminal Code of Canada were amended in 2010, 2012, 2014, and 2015. These amendments included an increase in the number of offenses from three to six, an increase in the corresponding maximum penalties, and the introduction of mandatory minimum sentences.
crimmigration” (Stumpf, 2006) – the convergence of the criminal and immigration laws that are ostensibly used to “protect” migrant women as workers, students, and visitors.
Immigration and Refugee Protection Act (IRPA) – The amendments enabled immigration officers to deny work permits for foreign nationals seeking to work in a sector “where there are reasonable grounds to suspect a risk of sexual exploitation.”
Exaggerated human-trafficking statistics are often reported and represented by criminal justice and other government agencies.
Under twenty – international and/or domestic trafficking prosecutions resulting in a conviction. Thirty-three immigration and criminal prosecutions between June 2002 and December 2014 that, contrary to both the IRPA.
“Pimping” was considered sex trafficking. Notably, PCEPA simultaneously introduced significant amendments to Canada’s criminal anti-trafficking laws, suggesting that, from a national policy perspective, commercial sex and trafficking in persons are intertwined.
Immigration issues include language barriers, lack of work experience, policies against acceptance of their foreign credentials, and racism.
Perceptions of Sex Work: Narratives of Police and Regulatory Officials
Chapter 9 – FRANCES M. SHAVER, JOHN BRYANS, AND ISABELLE BHOLA – Autonomy and vulnerability.
Policing culture is an important factor in both the enforcement patterns adopted and the perceptions held about the people involved in the sex industry. The term “policing culture” refers to the shared and legitimated ways that laws and regulations are used by those regulating sex work to fulfill their objectives. Policing culture includes formal institutional legacies and contexts, as well as the more informal and often unconscious social norms that are established and maintained by training, daily practices, and social control mechanisms.
Policing narratives rely heavily on responsibilization and victimization discourses. As Krüsi et al. (2016) and others have shown, responsibilization and victimization coexist with stigmatizing assumptions about sex workers as victimized or vulnerable. They argue that responsibilization is presented as protecting victims from risk but that it reinforces a distinction between responsible sex workers who exit or stop doing sex work and those “risky” subjects who continue to sell sex. Indeed, those who exit are supported, whereas those who remain are held responsible for their own downfall and may be subject to sanctions and restrictions.
First, even where sex workers are referred to as victims, the regulatory options available tend to transform sex workers into agents by making them responsible for their actions. It is assumed that they have a choice to stay or to leave. Second, regulatory respondents revealed two important variations: one where the choice to enter and stay in sex work is considered legitimate; and one where victims are identified as those who cannot become, or who are not, full agents.
Responsibilization
Implied acknowledgment – Responsibilization is about getting sex workers to the point where they have enough agency to make a choice, preferably the choice to exit sex work, but refusing to exit is also a choice. Thus, any consequences that sex workers then suffer are their own fault.
Autonomy
Explicit acknowledgment that sex workers are agents who are able to make choices. They are seen as individuals who have chosen to engage in sex work and who may choose, at some later date, to exit the industry or to keep working. Autonomy options and responses include harm reduction programs, risk reduction initiatives, and the inclusion of sex workers in policy decisions.
Victimization
The victimization framework depicts sex workers as victims or suggests that they had no choice but to become sex workers because of their upbringing. It also includes any reference indicating that sex workers (as victims) have little or no capacity to become agents because of their history of abuse, drug use, mental health issues, or similar conditions. Individual workers are seen as being victimized by others or by life circumstances.
Vulnerability
The work environment is “risky” and potentially violent. However, the risks and most of the violence are seen as being linked to social-structural and more systemic constraints (e.g., the laws that are in place). It is a form of systemic victimization rather than one linked to individual choice or life circumstances.
The distinction between being a victim and being vulnerable is an important one, especially if the long-term goal is to build respect for sex workers, improve their working conditions, and address health and safety issues. Structural and organizational changes become necessary, as does the development of policies that promote the employment, human rights, and citizenship of sex workers.
Summary
The responsibilization perspective assumes that workers are agents but rejects the legitimacy of the work, whereas the autonomy approach accepts both the agency of the workers and their work. The victimization approach questions their agency while focusing on their individual capacities to overcome individual limitations, with the vulnerability approach also questioning their agency but focusing on social-structural problems. Each approach makes the case for specific regulatory programs and options as well. Responsibilization supports those who exit and abandons those who remain, autonomy programs include harm reduction and a willingness to include sex workers in policy decisions, and victimization approaches include protectionist programs.
Bedford;
The Criminal Code included a number of provisions, such as outlawing public communication for the purposes of prostitution, operating a bawdy house, or living off of the avails of prostitution, even though prostitution itself is legal.
Decision
The judge decided that all three of those laws violated sex worker’s rights to security of the person.
Carter It ruled that section 14 and paragraph 241(b) of the Criminal Code are unconstitutional because they prohibit physicians from assisting in the consensual death of another person