Canada top court is sensibile about sex worker laws; Internet reactionaries are not

Great news from Canada.

Canada’s top court has struck down three key laws concerning prostitution in this country, declaring them unconstitutional, disproportionate and overly broad.

In a unanimous ruling, the Supreme Court said the laws prohibiting keeping a brothel, living on the avails of prostitution, and communicating in public for purposes of prostitution “do not pass Charter muster.” It said they infringe on the rights of prostitutes by depriving them of security of the person.

Showing it is possible for old legal folk to act sensibly toward such a touchy (excuse the pun) subject.

[Chief Justice Beverley] McLachlin wrote that given prostitution itself is legal [in Canada], the three laws made it far too difficult for prostitutes to safely engage in sex work.

She wrote the laws “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 law banning brothels forces prostitutes onto the streets, McLachlin wrote, and the resulting health and safety risks imposed upon street workers is “grossly disproportionate” to the law’s objective of preventing public nuisance.

Sex work is legal in Canada, though some elements, such as public communication, appear to still be criminal.

And with the sensible and adult treatment of sex, not to mention defending it on a public health and harm perspective, inevitably those with less sensible, more knee-jerk reactions, will also find their voice. This doesn’t mean all opposition comprise less sensible people and those in favour more sensible; I’m focusing here on the reasoning, not the people.For example, Benjamin Perrin at Canada’s Globe and Mail writes: “It is high time for a change – but not one that would legalize or normalize prostitution. Instead, a new approach is needed with the aim of ending prostitution.”

Through his piece he uses various justifications for this conclusion that, I hope you’ll agree, don’t actually warrant this conclusion .

Note that, like much discussion of criminal law, his immediate conclusion on how to tackle problems isn’t improvement, better policing, better healthcare, better protection laws against children and families. No: It’s end all prostitution.

Studies by the Library of Parliament and the House of Commons Standing Committee on Justice and Human Rights paint a bleak picture:

– Street-level prostitution represents just 5-20 per cent of all prostitution, the rest occurs indoors – out of sight, out of mind;

– The majority of prostitutes start between 14 and 20 years of age;

– A disproportionate number of prostitutes were sexually abused as children;

– Substance abuse is significant among street prostitutes; and

– Marginalized women, including Aboriginal women, are particularly vulnerable to prostitution and more likely to face violence (including assaults, sexual assaults, and murder).

All of these are problematic (except perhaps the first). Having no access to the data – nor an expert in how to interpret said data – I’m not going to contest these findings. If they’re true, they worry me and should worry anyone. But, as indicated, how do we get from these worrying points to ending income for those earning from sex between adults and ending a means for many to find intimacy?

Obviously if it’s with an underage girl or woman who does not consent, that is precisely what trafficking laws and so on are for already; Perrin and those like him love the tactic of leaving worrying facts and letting you make the connection of how legalised sex work is the womb from which these spring. No foreplay of causal relation is provided, instead we are all just expected to take it, and take it hard, that all this is sex work legality’s fault. Not (just?) the fault of horrible people imprisoning innocents, or  children, for which there are a laws; not (just?) the fault of poverty leading to people (not just women) providing sexual services to make ends meet; not (just?) how substance abuse is itself already a problem and illegal.

No: It’s society recognising that adults can consensually pay for services involving genitals and hands and mouths.

Perrin, like many others, likes to mix and match his argument by talking about how this “degrades” women.

Prostitution creates a second class of women – disproportionately disadvantaged women and underaged girls that can be bought and sold. The fact that most enter as minors, were sexually abused as kids, and many are Aboriginal is haunting. Legalizing prostitution would legitimize their sexual exploitation by men.

(I’m not sure what he means by the Aboriginal claim: I assume he means brought to Canada illegally? or against their will?)

Sex work is not about being bought and sold: it’s about selling specific services, as with any job, involving the body. Do we say a plumber sells his body because he uses his hands on our pipes? Why then do we say sex workers are selling their bodies when they – consensually – are doing the same (or on whatever counts as a woman’s equivalent – excuse the crassness)? If we are really talking about selling people, then we’re talking about slavery – not sex work. Notice the “work” part?

It is certainly horrible, if true, that “most enter as minors, were sexually abused as kids…” – but there already exist laws for these sorts of criminal activity. What Perrin needs to show – but what he does not – is how legalised sex work creates these already criminal areas.

Note: this is not the same as saying (the demand for) sex work creates this environment. It’s how legalising sex work creates this environment and these horrible scenarios.

Furthermore, it’s not clear how he can equate sex work as both trafficking of unconsenting children and consensual sexual interaction between two (or three, or four, etc.) consenting adults. What about those sex workers who enjoy their job and earn a living from their careers? How will making them criminal help, when they’ve harmed no one and make a better – as opposed to a more oppressive and nasty – society by engaging intimately and consensually with other adults? Why would you want to extend your tent of concern to “protect” (i.e. restrict) everyone in your make believe canvas you’ve decided is “sex work”?

The problem as always is the rejection of categories or shades of nuance, the equating of already criminal acts to sex work, the stripping down and erosion of women to be two-dimensional, street walkers, background characters in the one-act play of the saviour, with accented voices pleading that they don’t want to be there, addicted to drugs and beaten by their pimp. If such women exist, they of course require help – but, to repeat, such laws protecting them already exist. What will extending it to also consensual adult interaction achieve except, as the Chief Justice highlights, to create more criminals, greater health hazards, push it underground away from the law, undermine adult autonomy, and be almost as insulting to women as what Perrin imagines “prostitution” to be.

Let’s just get this out the way: male sex workers exist, too. For example, in Sweden, its National Board for Youth Affairs found that almost twice as many men had sold sex worker services as women, within the age of 16-25. They do exist and they, too, face hardships. Sex work is not solely a place where woman are providing the services. But Perrin makes no mention of this, instead referring to all sex workers as women. This is part of the narrative he’s weaving, of course, of women as victim that require saving – without apparent thought to what the women themselves want, whether they are actually victims, and so forth.

Leaving prostitution is the only way to truly protect prostitutes.

Much the same as removing your eyes will prevent cataracts.

Perrin lists more details about how legalised sex work failed and so forth and – again – if true, this is of concern.

I do not wish to defend anything which leads to the significant harming of others unnecessarily. My concern is that people’s default is complete removal, not amendment. It’s banning, not alteration or engagement with those directly affected. Reading Perrin’s piece, you would never know that people want to be sex workers, enjoy their careers and earn a good life from it. Instead, all such adults are rendered as helpless victims.

Now, should sex workers who make a good life enable the suffering of others? Of course not – but they would be the first to tell you that. However, as indicated, a case needs to be made that legalising sex work makes matters worse instead of better; how being upfront and engaged with your state is worse than being labelled a criminal and operating underground. Perrin cannot have the illusion that criminalisation equals eradication. It does not. We know this. (Not to mention no case has been made as to why consensual adult sex work is bad, since no link is made between this and the problems of how it significantly increases or leads to trafficking.)

Of course Perrin blatantly says that sex work is inherently wrong: a problematic position, since he would have to explain how its wrong to support my sex worker friends and others helping make lives better – for their clients and other sex workers – when its consensual and between adults.

Again, it could be shown that a legalised culture makes matters worse, but I’ve not seen such indications: only handwaving of horrible properties related to trafficking (not adult consensual sex work), already criminal activities and condemnation of the horrible lives of women.

Until such time as people show how decriminalisation or legalisation of sex work – not just sex work (and even then, it needs to be defined as something that isn’t just trafficking or mere demand, since this can be responded to) – leads to more harm in this way, Perrin’s position, if enacted and as it is enacted through much of the civilised world, would be doing more damage, not less. Women would then be second class; adults’ choices would be irrelevant; sex workers as moral agents for those less abled would be undermined. The entire point behind legalisation and decriminalisation isn’t some vague notion of what Perrin terms “legitimizing”: it’s about protecting sex workers, making their lives easier, offering protection in various ways, and helping not create stigma from the public and – worse – the police.

Legitimisation can’t just be used as some vague notion that automatically means whatever you want it to mean (even then, so what? We’ve legalised smoking – but almost no one therefore thinks it’s awesome. Sex work is actually a good, when involving adults and consent.)

Perrin’s world is not one I wish to support and one I do not want.

(Minor Updates)


  1. Jenora Feuer says

    Yeah, this ruling has been a couple of years in coming since the Ontario courts came down against the original laws. Parliament has a year to create new laws that will hopefully pass constitutional muster.

    For the non-Canadians in the group, a little background:

    Yes, in Canada, prostitution was legal. (Largely, I suspect, because enforcing a law against it without the law being mostly entrapment was next to impossible.) Soliciting for the purposes of prostitution was illegal. Running a bawdy house was illegal. Living off the avails of prostitution (i.e., being a pimp) was illegal. But prostitution itself was not. What this ruling and the earlier rulings that led to it essentially said was that the current laws basically made prostitution far more dangerous than it would be otherwise, and gave the people who were doing it nowhere to turn if things went badly. The biggest problem with the laws were that they only ever really got enforced on the people who didn’t have anywhere else to turn to anyway, and there have been cases where police officers basically used that as blackmail material to get free services themselves.

    The ‘Aboriginals’ bit you question above has to do with the fact that a large number of streetwalkers are First Nations people, aka aboriginals, natives, American Indians, or what have you. This being due to the fact that they tend to have even fewer places to turn if things go badly, and the people who end up doing prostitution are often those who had no money to start with. They tend to be a highly ignored people. Look up the movie ‘Finding Dawn’, which starts with talking about Dawn Crey, one of Robert Pickton’s victims. Hundreds of native women have gone missing over the years, many of them like Crey grabbed because the people preying on them know that nobody will bother looking for them.

    As you say, most of the bad cases to do with sex work tend to be illegal for other reasons than the sex work anyway, and giving sex workers the freedom to actually report problems to people who might be able to help might be able to make things better.

    (Of course, to really do that, we’ll need a generational change in a lot of the police officers first.)

  2. John Morales says

    So salient and revealing that I think it bears repeating:

    Let’s just get this out the way: male sex workers exist, too. For example, in Sweden, its National Board for Youth Affairs found that almost twice as many men had sold sex worker services as women, within the age of 16-25. They do exist and they, too, face hardships. Sex work is not solely a place where woman are providing the services. But Perrin makes no mention of this, instead referring to all sex workers as women. This is part of the narrative he’s weaving, of course, of women as victim that require saving – without apparent thought to what the women themselves want, whether they are actually victims, and so forth.

  3. says

    (I’m not sure what he means by the Aboriginal claim: I assume he means brought to Canada illegally? or against their will?)

    In Canada, “Aboriginal” refers to descendants of the original inhabitants of the land before the white man came. Another, perhaps clearer, name for them is “First Nations peoples”.

  4. Loobiner says

    What Perrin means by Aboriginals is Indigenous Canadians, who actually are a seriously marginalized group in Canada.
    I do however believe that Perrin’s argument is wrong. Enabling sex workers to organize in brothels would allow them to have on site protection (for example, the brothel could employ a bouncer and post “do not allow in” photos of dangerous clients) and would keep them off the streets.
    Neighborhoods where sex workers are walking the streets to attract clients tend to create hostile environments for the women who live there. When I was a teenager in Denver, CO the neighborhood where I attended school was notorious for street level sex work. My friends and I were solicited for sex on an almost daily basis. When visiting Vancouver BC I also stayed in a neighborhood where I was solicited frequently. If sex work only occurred in brothels in those cities, people (usually women) would feel safer on the streets. In practical terms, keeping sex work in brothels or otherwise indoors benefits both people who choose to be sex workers and people who do not. I suppose it might also make it easier for potential clients to make sure the sex worker they’re visiting is fully consenting, attractive, asking a fair price, etc before making the transaction. Not to mention that they will know that the people they are soliciting for sex are actually sex workers.
    Many sex workers do love their work (or at least the ones I’m friends with do) and they make great money. They aren’t being exploited any more than they would be selling any other kind of labor and the service they provide benefits society in a variety of ways (I would go into it, but this comment is also pretty long). I think it ultimately does more harm than good -not just to sex workers, but to everybody- to make their jobs more dangerous and difficult than they need to be out of short sighted moralizing.

  5. says

    All of these are problematic (except perhaps the first)

    No, the first is definitely problematic. As Loobiner notes, streetwalking as a practice causes problems for others who aren’t sex workers, as well as making the lives of sex workers harder and more dangerous.