As the Canadian government begins the process of drafting new prostitution laws, it ought to consult with those with the most at stake.
A Toronto Star op/ed by Emily van der Meulen — Assistant Professor in the Department of Criminology at Ryerson University, Elya M. Durisin — doctoral candidate in the Department of Political Science at York University, and Victoria Love — sex worker and activist based in Toronto. They recently co-edited Selling Sex: Experience, Advocacy, and Research on Sex Work in Canada
More than two months ago the Supreme Court of Canada unanimously struck down sections of the prostitution laws because they deprive sex workers of their constitutional right to security of the person. The court ruled that these laws create conditions that result in harm and violence toward sex workers.
Called Bedford v Canada, this decision is the outcome of decades of largely unseen and unrecognized efforts by sex workers and their allies, and represents an important opportunity to improve living and working conditions for sex workers in Canada.
With Parliament in session, Justice Minister Peter MacKay will begin the process of drafting new laws regulating prostitution that — according to the Supreme Court — must be in agreement with the Charter of Rights and Freedoms.
Sex workers are among the first to acknowledge the poor working conditions in the sex industry and are also the best positioned to develop solutions.
The Department of Justice recently initiated a public consultation on prostitution-related offences. However, without meaningful input from current sex workers and sex workers’ rights organizations, the new laws could simply result in further harm — both to sex workers and to communities as a whole.
While the public and policy-makers are mulling over possible regulatory options, what tends to be neglected is research that shows the laws themselves can create conditions of violence and vulnerability.
The two most commonly discussed legislative models are legalization, like in the Netherlands, and the criminalization of clients and managers, like in Sweden — both of which have serious flaws.
In legalized contexts, governments tend to impose harsh conditions in an attempt to contain sex work as an undesirable activity rather than implement policies to improve safety and working conditions. The Netherlands’ strict regulation of prostitution has resulted in a two-tier sex industry: a legalized sector the state attempts to control, often through confusing and contradictory laws and bylaws; and an unlicensed “underground” sector where coercion and forced labour still occur.
Because of the social perception that prostitution is a problematic activity and the onerous rules and regulations in force, sex workers in the Netherlands continue to be marginalized. Dutch sex workers’ rights organizations, such as De Rode Draad, have raised serious concerns about legalization.
There is a big difference between decriminalization and legalization. Those who favor the former tend to end up getting the latter, which is still an improvement over prohibition but often imposes onerous burdens on those directly affected that diminish the benefits of lifting prohibition.
How about this? Let’s just try making no laws specifically governing sale of sexual services and apply existing criminal statutes (such as those governing assault, kidnapping, etc.) to abusive cases arising out of private transactions.
Sometimes the best thing to do is the least.
Interestingly, in criminology parlance, “decriminalization” and “legalization” have meanings pretty much reversed from the way they;re used in terms of sex work rights.
For instance, marijuana possession is “decriminalized” in some places, but it’s still regulated to the extent that one can be issued a ticket or face administrative action if one does not comply with the regulations. The marijuana laws assume that it constitutes a ‘vice’ or otherwise dangerous goods for which regulation is required.
Were marijuana fully legalized, no such assumptions about its nature would be imbued in the law.