Photo via Flickr user 36937478.
Despite nearly a year of protests and outcry, Canada's new anti-sex work law, Bill C-36, passed its third reading in the Senate on Tuesday, and only awaits royal assent to become law. Unfortunately these laws will create unsafe conditions for sex workers across the country. And according to experts I've spoken with, indigenous women and those who have been trafficked will face the most risk. Before I go there, though, a bit of background on what C-36 constitutes, and how we got to this point:
As of today, it is illegal to purchase sexual services, and to communicate for the purposes of those services. If youth could be expected to be in the vicinity, it is illegal to sell sexual services. It is illegal to advertise sexual services, and managerial relationships are illegal, too (read: "pimps" and "madams" will not be allowed to operate).
This law is what the government imagines to be an appropriate response to last year's strikedown of Canada's sex work laws. In December 2013, after a challenge by Terri-Jean Bedford, Valerie Scott, and Amy Lebovitch, the Supreme Court ruled that the laws surrounding living on the avails of sex work, operating a brothel, and communicating for the purposes of sex work were unconstitutional. It was a 9-0 decision. Chief Justice Beverley McLachlin wrote at the time:
"Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes… it is not a crime in Canada to sell sex for money."
Government had one year to create and implement new laws, and as December approaches, this is where they're choosing to go: in a direction that promotes violence against sex workers.
The old laws, sex workers told me nearly a year ago, were racist, classist, and sexist. Now, we're jumping right back into the same territory. According to those in the industry, these laws will actually cause more harm to trafficked individuals, rather than less, as the government claims. They will disproportionately affect indigenous women, making life more dangerous for them. And they will make the sale of sexual services illegal, despite the government's careful politicking.
Let's start with the issue of legality. Naomi Sayers is a law student at the University of Ottawa, and a former sex worker. She's been closely following the progression of Bill C-36 on her blog Kwe Today.
"[The bill is close to] outright criminalization," she says. "You can't work indoors, you can't work outdoors. You can't communicate, you can't advertise. These are key parts of operating a business… This says a lot about how conservatives view women."
And because youth can reasonably be expected to be just about anywhere, there will be much wider grounds to arrest sex workers.
Laura Dilley is the executive director of PACE society, a sex worker led support organization in Vancouver's Downtown EastSide. The government claims only clients will be charged, but Dilley says sex workers will face issues with the law as well.
"Now, [sex workers] A) can't make a living, and B) if they do try to make a living, their clients are going to be really paranoid, really scared about getting caught by the police. So sex workers are going to have to go into darker alleys, make more provisions for these clients."
That might include measures like having sex in dark industrial areas, where there's no one around to look out for them. And that will be unsafe because sex workers won't have a chance to adequately screen clients. They'll be too rushed, trying to quickly conduct business in public without getting caught. They'll also have to live in fear of being "excessively monitored," Dilley points out. Police often know who is doing sex work, and they can simply follow those people around until a client shows up.
The new laws will make life harder for sex workers, especially street-based sex workers. And in street-based sex work, there is an overrepresentation of indigenous women, just like there's an overrepresentation of indigenous women in jail in this country. One of John Lowman's studies from the late '90s suggests that up to 70 percent of Vancouver's street-based workers on the Downtown East Side were indigenous. In another 2005 study, it was found that 52 percent of the women working in Vancouver's lowest-paying tracks were young indigenous women.
Sayers is an indigenous woman herself, and she explains that under this law, as with the old, indigenous women will be more likely to be charged and arrested. This holds especially true because of the "communication for the purposes" clause, which most often pertains to street-based workers soliciting clients in public.
"Everyone is guilty of that offence," Sayers says. "This increases the opportunity for policing in public spaces, and we know police over-police indigenous women in public spaces."
"They're always around to arrest [sex workers,] yet they're never there to protect them from the violence."
Because it's now illegal to buy sexual services, those who are trafficked will also be in much greater danger, according to Dilley. She says "99 percent" of all clients are good people who are simply purchasing a service, and now, if they notice a provider looks underage or appears to be trafficked, they won't be able to report to police for fear of being persecuted. And because of added legal risks on sex workers themselves, they too will be largely unable to report to police if someone in their agency appears to be in trouble.
If the government had bothered to pay attention over the past year, it would see that evidence points to decriminalization as the better option, both for sex workers and society as a whole. No fewer than 306 academics have sent an open letter to the government warning of the bill's dangers. British medical journal The Lancet published a piece this summer stressing that decriminalization of sex work leads to decreased rates of HIV transmission. Canadians voted in a government-issued poll, and we said selling sex should not be illegal. And sex workers protested across the country, asserting their right to police their own bodies.
Sex workers have been fighting the controversial principles of the bill, before C-36 was even written. They've shared their experiences with government, letting them know there's a stark difference between those who are trafficked, and those who choose to do sex work. But there was no meaningful consultation with sex workers in the development of these laws. The few times they were invited to speak to government in an official capacity, they were infantilized, ignored, or escorted from the room by security.
One of many problems in the construction of this law is the fact that government conflates sex workers with victims of human trafficking, refusing to make any distinction. The government claims the bill's aim is to protect victims of human trafficking. But it also admits an intention to end prostitution, and tars all sex working people as trafficking victims. In a country that already has stringent human trafficking laws in place, there is no need for a law such as this to exist.
I ask Dilley what sex workers can do to organize and protect one another now that the dreaded C-36 is close to being law. She says efforts to stay safe and work together will be pushed underground, and sex worker responses to the law will have to depend largely on how police choose to operate in a given area. Police could, for example, say they saw a youth close-by and arrest a sex worker on that basis.
"There are so many ways in which they can create a charge when really, there's no need. [The law] is really problematic in that way. In Vancouver, she says, the police are more progressive in working with sex workers, but it could be nearly impossible for women in more rural areas to organize and find support.
Sayers says that private, sex worker-only message boards will now be more dangerous to use, as well. Those boards are used to discuss problem clients or areas, and they're a mode sex workers use to keep one another safe.
"This law says, 'We don't want to keep you safe, we don't want you working together, and we don't want safety mechanisms in place for you,'" Dilley explained. "It's based on a moral agenda, not because they want to base their legislation on evidence."
She says the law is sure to face another Charter challenge, but that "government is willing to have more murdered and missing women in Canada in the meantime."
When C-36 passed third reading, I phoned Valerie Scott to check in. She, too, said these laws, like the old, will eventually be deemed unconstitutional. Those behind Sweden's anti-sex work laws say the same. But that could take about five years to prove. Someone has to be arrested and charged, and then make the decision to come forward and fight it. That takes time.
The Sex Professionals of Canada issued this statement on its website in the wake of Senate approval:
"Know this: we live to fight another day! In all of human history, no government, no army, no religion has ever stopped sex work, nor will they be able to stop what is now a global sex workers [sic] rights movement."
If you disagree with the laws, Sayers says, the best thing to do is to reach out to organizations supporting sex workers (emphasis on supporting, not victimizing) to see how you can help.