This is Not Feminist Legislation, and it’s Not Supply-Side Decriminalization
For those of us who would like to see sex workers totally decriminalized within our lifetimes, the Conservative government’s Bill C36 – a replacement for the anti-prostitution laws struck down by the Supreme Court in R v. Bedford – was worse than we thought. I think a lot of us, including me, were expecting to see a hollowed-out version of the Nordic Model. Y’know, lots of bluster about pimpsnjohns and no more than the barest of lip service to addressing workers’ “push factors”: things like poverty that make prostitution one of very few viable options for many workers, labour market conditions outside of the sex industry that make sex work, even under the brutal conditions of criminalization, more attractive than temporary or minimum wage work. Joy Smith’s Tipping Point in bill form.
What we got are the same laws we had before, dressed up a bit and with sharper teeth. The better to get people killed with.
There is a law criminalizing the purchase of sex. But pre-Bedford anti-prostitution laws also criminalized clients, and we have
already seen how they were enforced. There is also exactly the same communicating law as before – the same communicating law that is undoubtedly responsible for hundreds’ of women’s deaths and countless women’s incarcerations – but now it’s limited to areas where there might be children. That could include any residential or commercial neighbourhood (so basically everywhere), which means sex workers will still be pushed into industrial areas at night, and will still be rushing transactions with their criminalized clients. We know exactly how this story ends.
The new “BUT THINK OF THE CHILDREN” veneer on this dangerous, cruel law doesn’t actually give sex workers space to work in their communities—but it does codify in law the cultural belief that sex workers ought not to be near children. Maybe someone with more legal knowledge than I have would be willing to discuss how this could affect sex workers in family court or interactions with child protective services (we know that Indigenous women are overrepresented among outdoor sex workers and, not by coincidence, that Indigenous children are overrepresented among children in foster care—so this really matters). Or how it could affect sex workers being denied housing in certain buildings or neighbourhoods, or former sex workers facing discrimination in non-sex employment.
What’s more, this government seems to think that feminists, women, the Canadian public, are all stupid. However questionable its methodology, the federal government’s own public consultation found that two thirds of Canadians do not want sex workers criminalized, while about half want the purchase of sex criminalized. Among organizations replying to the survey, whom we can presume have some knowledge on the topic, about half supported abolition, about a third supported decriminalization, and only about 10% supported criminalization. As long as the communicating law is maintained, criminalization is maintained. 95% of all arrests and hundreds of deaths are connected to this law. Only the most conservative fringes of our society are still willing to let women die for it. (Of course, there are better ways to make laws than public opinion polls. But don’t ask people what they think, do the opposite, and then tell them it’s the same thing FFS.)
Mitigating the Harm
I know there are many people who will forcefully, unconditionally object to Bill C36 and everything in it, whether because it is not decriminalization or (I am maybe less hopeful here, but would love to be proved wrong) because it is not abolition. And I’m behind that. It is necessary for someone to take the hard line, and the people I know who are doing just that are brilliant and fierce. But I am not going to be among them today.
I also believe, given the Con majority in parliament, that Bill C36 will pass, in one form or another. If Canadian feminists and sex workers could stop being vicious towards one another for awhile, we could maybe talk about what that form should be. There are parts of this bill that none of us want to see become law. There are parts that we know are going to cost women and other workers their lives. There are silences and gaps in this bill that should be criminal themselves.
As far as I can see, the choices before us are to (1) hope there is some scandal Harper doesn’t want to deal with, so he will prorogue parliament again and kill the bill, (2) wait and watch women die while yet another constitutional challenge works its way through the courts, or (3) work together to mitigate the bill’s most serious harms, and then get back to advocating for the systems we think are ideal.
I don’t think it’s realistic to expect the criminalization of consumers and bosses to be removed from Bill C36, so I won’t even touch that. But here are 5 changes that I think are vitally necessary for sex workers’ safety, whether clients are criminalized or not:
1) Strike the revamped communicating law. This could make it harder to build a case for a constitutional challenge, since this is the bill’s most egregious “eff you” to the Bedford decision, but it is also the most dangerous provision in the bill. Sex workers’ lives are worth doing whatever it takes to make sure this law never again sees the light of day.
2) Narrow the provision criminalizing advertising, or create guidelines for prosecutors pursuing advertising charges, to allow sex workers (and only sex workers) to engage in the following activities:
a. Placing unpaid advertisements on sites that don’t charge workers for advertising, distribution or hosting services. Abolitionists may object that this doesn’t directly contribute to the eradication of the sex industry. That is correct. But keeping current sex workers alive to see the end of the industry is important, too, and that might mean taking a few baby steps in the name of harm reduction. Until exiting is a realistic option for every sex worker, there needs to be somewhere to advertise besides the street.
b. Placing ads as a group or collective, when all members of the group are advertising and working together. This applies to a few workers sharing an apartment where one of the workers posts everyone’s ads at the same time, or advertises doubles, or whatever—not to boss/worker relationships.
3) If clients must be criminalized, prioritize the criminalization of bad clients. There is a difference between the blah client who just wants sex and figures he should get it and the “bad date” who is unusually violent, who pushes workers to have sex without condoms, who threatens or intimidates, or who rapes, assaults or robs workers. Make it a priority to arrest clients against whom sex workers have made a complaint or who fit a profile on a bad date list. Make these behaviours aggravating factors in the crime of purchasing sex, even. That would make it harder for clients to use the “risk” they face from criminalization as a bargaining chip to pressure a worker to relax her boundaries. (FTR, I think criminalizing clients is a bad idea, for the same reasons that others have discussed. But if it must be done, do it in a way that puts the power in the worker’s hands.)
4) Amend the clause related to materially benefitting from someone else’s sex work when one has provided the worker with drugs or alcohol, so that it is more in line with how coercion using drugs or alcohol is understood in sexual assault law. That would cover someone drugging a sex worker, or threatening to withhold drugs from a sex worker, in order to coerce them to sell sex, but it would still let sex workers who use drugs live their lives with their friends and partners—people who can be around in the event of overdose, who can help someone with shaky hands get well, who are just necessary presences in people’s lives as friends, lovers and community.
5) Allocate way, way, way more than $20M to meaningful sex worker service, harm reduction and exiting programs, and make sure those programs are run by and provide employment to current and former sex workers and prostituted persons. Make sure these programs are available in rural areas, and not just big cities. Make sure they offer more than just trauma counselling and life skills classes—because poverty and violence are systemic issues, not the results of individual choices.
I don’t want to see Bill C36 pass. I think it’s bad legislation that is not going to help sex workers. But I still believe in harm reduction, and the harms of this bad legislation can be reduced.