SEX FOR WORK:
HOW POLICY AFFECTS SEXUAL LABOUR, AN ARGUMENT FOR LABOUR LEGITIMACY AND SOCIAL CHANGE
EMILY VAN DER MEULEN
A DISSERTATION SUBMITTED TO THE FACULTY OF GRADUATE STUDIES IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY
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M Canada Abstract
This dissertation examines the implications of federal legislation for sex workers' labour rights in order to make recommendations for labour legitimacy and social change. Specifically, the chapters look at four key areas: the historic trends and current framework of the sex work-related sections of the Criminal Code of Canada
(namely, s. 210, 211, 212, 213); variations in the regulation of sex work through an international policy comparison of Sweden, the Netherlands, and New Zealand; the potential for sex work labour organizing and industry-wide labour improvements; and the possibility of alternative policy frameworks for Canada's sex industry, specifically decriminalization. The dissertation concludes with a 5-point action plan that focuses on the necessity of a reconceptualization of sex work and sexual labour, the fundamental importance of decriminalization, the implementation of sex worker created health and safety guidelines for the sex industry, social and government support for sex workers unionization and association building, and the cessation of mandatory and excessive licensing schemes.
Drawing on a mix of texts, policy documents, and in-depth interviews with sex workers and allies from Canada's oldest sex worker run organization, Maggie's: The
Toronto Prostitutes' Community Service Project, this dissertation examines the following general questions: What strategies do sex workers employ in struggles for increased labour rights? How can sex workers and allies promote basic labour protections and standards within the industry? How can Canadian policy develop to
iv better support sex workers' rights? How can policy makers better engage with sex working communities in the policy development process? How can sex work research produce policy-relevant outcomes?
In an effort to build bridges and dismantle barriers between sex workers and feminist researchers, the methodology supported throughout the research process was that of Action Research. As such, sex workers and allies participated in the design of the project, provided feedback throughout the writing phase, and were involved in the dissemination of the results. A key priority of this dissertation was to shift from researching on sex workers to researching with sex workers. Accordingly, sex workers' expert opinions and narratives about the criminalization of their common work-related activities are central.
v Acknowledgements
While most major research projects are collaborative endeavors, this one was particularly so. The following mentors and colleagues, family and friends, comrades and allies played pivotal roles in shaping, guiding, and influencing this dissertation.
Kamala Kempadoo, Sarah Flicker, and Kate Sutherland's thoughtful and knowledgeable comments and feedback encouraged my intellectual growth and scholarly development. Through their insightful and challenging questions, my committee showed me how to become a more attentive researcher, writer, and thinker.
Their guidance was invaluable. I am also thankful for the important contributions and feedback of my defense committee: Leslie Ann Jeffrey, Leah Vosko, and Janet
Mosher.
An additional two mentors deserve mentioning. As an undergraduate student,
Emilia Angelova saw my potential and cultivated my desire for further study. Without her I would not have continued on an academic path. Similarly, during my Master's degree Magda Lewis' oft-repeated phrase "show me, don't tell me" set the
groundwork for developing my then combative writing style.
I am also very fortunate for a family that both encouraged me to pursue a
doctoral degree and believed in my ability complete it. My parents in particular were a
constant support. When others thought it impossible, my mother continued to believe
in my future successes and advocated on my behalf; she was my biggest supporter and my most ardent lobbyist. Over the years of research and writing, my father's sustained
vi interest and enthusiasm was both encouraging and heightened my drive to complete the project. To my whole family, thank you for your nurturing, your support, and your interest in the topic - Carol and Gary, Anna and Sunny, Julie and Torbjorn.
I owe a debt of gratitude to the friends who made the process enjoyable by providing the necessary community, social life, and space to commiserate over the past five years - Rob Heynen, reese simpkins, Elya Durisin, Kelly Fritsch, Aaron
Gordon, Irina Ceric, Jean McDonald, Jessica Grillanda, Nicola Luksic, and Julie
Dowsett. Additionally, my friends and colleagues in Women's Studies were indispensable in facilitating an academic network that included various study and support groups, co-published papers, joint panel presentations, and more - Vivian Lee,
Claire Carter, Jennifer Musial, May Friedman, Vicki Hallett, and Diana Gibaldi.
I would especially like to thank the Helena Orton Memorial Scholarship, the
Ethel Armstrong Award, the W. Jean Fewster Award, and the Social Sciences and
Humanities Research Council Canada Graduate Scholarship for their generosity.
And finally, none of this would have been possible without the support and encouragement of the current and former staff, volunteers, and board members of
Maggie's who agreed to participate and be interviewed for this study. Thank you
Alysa, Julia, Kara, Keisha, Lisa, Maria Belen, Patricia, Renee, Robert, Sarah, Sasha, and Valerie.
vii Table of Contents
Abstract iv Acknowledgements vi Table of Contents viii List of Tables ix List of Appendices x
Chapter 1: Introduction: Reframing Sex Work as Sexual and Emotional Labour ... 1
Chapter 2: Action Research with Sex Workers and Allies: Dismantling Barriers and Building Bridges 23
Chapter 3: Policy Perspectives on the Global Sex Trade: Debates on Eradicating, Managing, and Legitimating Sex Work 70
Chapter 4: International Approaches to the Regulation of Sex Work: Lessons Learned from Sweden, the Netherlands, and New Zealand 104
Chapter 5: From Vagrancy to the Subcommittee: Canadian Prostitution Policy Development and Transformation, 1860 to 2006 152
Chapter 6: How Canada's Criminal Code Affects Sex as Work: The Possibilities for Labour Organizing under Criminalization 209
Chapter 7: Concluding Recommendations: A 5-Point Action Plan for Labour Legitimacy and Social Change 260
Appendices A-K 293 Bibliography 318
viii List of Tables
Table 1.0: Demographic Breakdown of Interview Participants 63
Table 2.0: Questionnaire Reponses 65
Table 3.0: Section 210: Bawdyhouse Provisions 218
Table 4.0: Section 211: Transporting to a Bawdyhouse 223
Table 5.0: Section 213: Communication Provisions 225
Table 6.0: Section 212: Procuring Provisions 229
Table 7.0: Recommendation, Rationale, and Responsibility 264
ix List of Appendices
Appendix A: Informed Consent 293
Appendix B: Demographic Questionnaire 296
Appendix C: Interview Guide 298
Appendix D: 1999 Swedish Penal Code 302
Appendix E: Revised 2005 Swedish Penal Code 303
Appendix F: Beyer Speech to Parliament 308
Appendix G: NZPC Summary of Laws 310
Appendix H: Section 210 Criminal Code 313
Appendix I: Section 211 Criminal Code 314
Appendix J: Section 213 Criminal Code 315
Appendix K: Section 212 Criminal Code 316
x Chapter 1
Introduction: Reframing Sex Work as Sexual and Emotional Labour
This is the topic that everybody has an opinion about. If you're talking about quantum physics people would admit that they don't know anything. But when you are talking about sex work, everybody has an opinion — they all think they know how the women live and how they are mistreated. It's unbelievable. They assume that they don't need to learn.
Patricia Diaz (sex work ally, interviewed January 20, 2008)
For more than 25 years, sex workers and allies across Canada have been fighting for their rights and well being, challenging the stigma and stereotypes that reduce their social worth and expose them to exploitation and violence (Brock and
Scott 1999). The two main foci of this struggle, both in Canada and internationally, have been legal and social reform. Regarding the former, sex workers and allies almost unanimously advocate for the complete decriminalization of adult consensual prostitution-related activities (NZPC n.d.; SPOC n.d.; Shaver 1985; Pheterson 1989;
Delacoste and Alexander 1998; Lowman 1998; Leigh 2004; Allinott et al. 2004; Self
2004; Betteridge 2005; Childs et al. 2006). Regarding the latter, sex workers and allies most often advocate a shift in social and political conceptualizations away from
1 prostitution as violence and towards sex as work (Truong 1990; Queen 1997; Chapkis
1997; Brock 1998; Kempadoo and Doezema 1998; van der Veen 2001; Kempadoo
2004a; Albert 2001; Bruckert, Parent, and Robitaille 2003; Betteridge 2005; Sanders
2005; Bruckert and Parent 2005; Childs et al. 2006; Bernstein 2007). In solidarity with the Canadian and international sex workers' rights movements, this dissertation is a
Toronto-based case study that examines the implications of federal legislation on sex worker's rights in order to make recommendations for labour legitimacy and social change.
In order to contextualize the political and theoretical framing of sex work that I employ throughout this dissertation and to elucidate the concepts of 'sexual labour'
and 'emotional labour', this introductory chapter opens by drawing on the work of key theorists Arlie Hochschild (1983), Thanh-dam Truong (1990), Wendy Chapkis (1997),
Kamala Kempadoo (1998, 2004), and Teela Sanders (2005). If Joanna Phoenix (1999) is correct that".. .research on prostitutes forms a chain of interlinked ideas, notions and arguments, constituted within the gaps and spaces created by other research on prostitutes and prostitution" (Phoenix 1999, 35), than the intention of the first section is to both show the overlaps, connections, and intersections of the main theoretical and political positions on sex work as well as to explicate what are still relatively new ways of thinking about the topic; that is, as sexual and emotional labour. The final two
sections of the introduction present a note on the impetus and goals of the research project as well as a chapter-by-chapter breakdown and outline of the subsequent dissertation.
2 Sexual and Emotional Labour
In an effort to advance the conceptualization of sex work in relation to labour- based discourses, I turn to the work of scholars who have been particularly influential in developing theoretical frameworks that explicate sexual and emotional labour
(Hochschild 1983; Truong 1990; Chapkis 1997; Kempadoo and Doezema 1998;
Kempadoo 2004; Sanders 2005). Additionally, each of them has informed the labour politic of sex work employed by this dissertation and each has contributed to my own thinking about sex workers' workplace resistance strategies.
The term 'sex work' is used throughout this dissertation as this is the term most often used both by the sex workers and allies that I interviewed as well as by the larger sex workers' rights movement. Indeed, since it was first coined in the mid
1970s (Leigh 2004, 66-69), 'sex work' has become the preferred phrase of choice for the larger international labour, human, and health rights movements of sex industry workers. As sex workers themselves argue, one can indeed have sex for work
(Almodovar 1993; Highcrest 1997; Delacoste and Alexander 1998; Tea 2004; Leigh
2004). Accordingly, this dissertation conceptualizes sex work as a job that frequently requires physical and emotional labour and can be viable, flexible, and often times, well paying. Sex work is not presented here as an identity marker or psychological characteristic but instead, as Kamala Kempadoo (1998) argues, "as an income- generating activity or form of labour" (Kempadoo 1998a, 3). I argue in favour of the important reconceptualization of sex work as sexual labour and recognize that there
3 are a multiplicity of individuals1 working in a multiplicity of sex work jobs who are affected by laws, stigma, and stereotypes as well as the social, moral, and political condemnation of their involvement in the sex industry. As Mary Childs et al. (2006) contend, "Although there is considerable diversity among sex workers, they share the experience of systemic discrimination, marginalization and social alienation" (Childs et al. 2006, 222).
In Arlie Hochschild's (1983) early work, she develops the concept of emotional labour. While she focuses specifically on the labour-related experiences of flight attendants, much of her analysis can be, and has been, applied to the context of sex work, including the gendered nature of the work. She describes emotional labour as "the management of feeling to create a publicly observable and bodily display.
.. .this labor requires one to induce or suppress feeling in order to sustain the outward countenance that produces the proper state of mind in others" (Hochschild 1983, 7).
Women predominantly fill jobs that require emotional labour , according to
Hochschild, as women are "traditionally more accomplished managers of feeling in private life" and indeed "do more emotional managing than men" (Hochschild 1983,
11, 164-170; emphasis in original). This particular type of labour is differentiated from other forms of labour, including physical labour, in that the jobs performed by factory workers, farmers, or fishermen, for example, necessitate what Hochschild sees as a
1 Including men, women, and trans individuals. 2 Jobs that require emotional labour have three common characteristics: first, they necessitate direct interactions between the worker and the public; second, the labourer must evoke an emotional reaction from the other person or client; third, workers' emotional activities are subject to control from their employers (Hochschild 1983, 147).
4 suppression of feeling in one's self and not an inducement of feeling in others. One of the main negative consequences and human costs associated with emotional labour is the high risk of burnout. Specifically, when "the worker does not see her job as one of acting" and when she is too invested in identifying with her job, she will likely feel heightened amounts of stress, will personalize inappropriate behaviour towards herself, and may even stop caring about her work and become "detached from the people that she serves" (Hochschild 1983, 186-187). In response to this burnout
Hochschild advocates the following:
...many experienced workers develop a 'healthy' estrangement, a clear separation of self from role. They clearly define for themselves when they are acting and when they are not; they know when their... acting is 'their own' and when it is part of the commercial show. .. .by differentiating between an acting and a nonacting side of themselves, they make themselves less vulnerable to burnout. (Hochschild 1983, 188)
In this way, Hochschild is essentially endorsing a separation of a 'work self from a
'private self in order to maintain a healthy work/life balance. As is argued below, this is a strategy that many sex workers similarly employ (Chapkis 1997; Phoenix 1999;
O'Neill 2001; Sanders 2005).
Wendy Chapkis (1997) utilizes Hochschild's concept of emotional labour and applies it to the context of work in the sex industry. She argues that the ability to
"summon and contain emotion within the commercial transaction may be experienced as a useful tool in boundary maintenance..." (Chapkis 1997, 75). Illustrated through interview excerpts with Dutch and American sex workers, Chapkis contends that strategies of'boundary maintenance' can be an effective tool for interactions with
5 clients. And while she concedes that the performance of emotional labour can have negative consequences for the worker, she argues that sex workers are no more or less implicated than other emotional labourers (Chapkis 1997, 78). Chapkis further draws on Hochschild, who was drawing on Marxian theories of worker alienation, to argue that if sex workers were afforded greater control over their workplace conditions, they may experience greater workplace satisfaction3 (Chapkis 1997, 80-82).
Building on both Hochschild's and Chapkis' work, Teela Sanders (2005) argues that sex workers purposefully differentiate their workplace sexuality, identity, and emotions from other areas and aspects of their lives. She writes:
In the context of prostitution, emotion work is carried out on feelings in private. Women work on their internal feelings to separate, change and revise one set of feelings that are appropriate during sex work while reserving another set of emotions or feelings for private interactions. [...] Sex workers perform emotion work by managing their own boundaries, feelings and identities. (Sanders 2005, 325)
Sanders demonstrates that there are a diversity of 'emotional management' techniques and strategies employed by sex workers in order to distinguish their work self from their private self as well as to increase their financial rewards and saleability. Some of these techniques include defining physical boundaries and avoiding certain sexual activities, psychological defence mechanisms including using condoms as a barrier, rituals around dressing and bathing, and preferring to provide domination services over subordination services (Sanders 2005, 325-327). Perhaps the most common
3 Hochschild argues that the less control a worker has over her work, the more likely it is that she will "either overextend herself into the job and burn out, or she will remove herself from the job and feel bad about it" (Hochschild 1983, 189).
6 emotional management technique, according to Sanders, is the creation of a
'manufactured identity' that sex workers adopt specifically for work. She demonstrates that this identity is both "a strategy to protect individuals further from the negative repercussions of working in a clandestine and illegal activity" and also a particular "business strategy" (Sanders 2005, 329).
Hochschild, Sanders, and Chapkis similarly contend that emotional management techniques, manufactured identities, and the separation of work life from personal life are strategies used by workers who perform emotional labour, including sex workers. Unsurprisingly, radical feminists, to be discussed in further detail in
Chapter 3, argue against these types of strategies, as they insist that sex work cannot be analogized to other forms of labour. For example, radical feminists Andrea
Dworkin (2004) and Sheila Jeffreys (2004) discuss disassociation, or the separation of work life and personal life, to illustrate the psychological harms that sex workers face in the sex industry. Writing from the radical feminist perspective is grounded in the belief that the commercialization of sex is in itself degrading (Shaver 1988, 82;
Weitzer 2005a; Weitzer 2005b). This position maintains that sex work represents the violent sexual oppression and slavery of women and that sex workers are reduced to bought and sold objects for men's possession (Sloan and Wahab 2000; O'Connell
Davidson 2002; Outshorn 2005). As such, radical feminists argue strongly in favour of the eradication or abolition of the entirety of the sex industry (Barry 1979; Jeffreys
2006). Radical feminists further contend that sex work is fundamentally different from other forms of work based on an essential difference; the innateness of women's
7 sexuality. Within the radical feminist paradigm, "Sexuality is regarded as one of the most intimate aspects of the self. It is integral to and cannot be separated from the self; therefore, a prostitute who sells her sexuality is also selling her 'self" (van der Veen
2001,33).
Marjolein van der Veen (2001) critiques this radical feminist understanding of women's sexuality as problematic in "its embracing and reductionist conception of the
'self.' The selling of sexuality (or a sexual service) becomes the defining feature of that person: a sex worker is defined by that particular identity rather than by the multiple, other identities she may have as mother, sister, daughter, artist, and so on"
(van der Veen 2001, 35). Indeed, radical feminists object to a labour-based analysis of sex work and instead see it as fundamentally more alienating and destructive to women than other activities or employment (Pateman 1988; Farley 1998; Farley 2004;
Ekberg 2004). Kamala Kempadoo (2004) similarly critiques the radical feminist position of sex work and describes this theoretical stance as: "wedded to a notion of grand, singular theory to explain the oppression of women, and which depends on an homogenizing, fixed, and ahistorical understanding of male dominance and constructions of sexuality and gender" (Kempadoo 2004a, 262).
In order to create what she calls "a more complex feminist prostitution politics" that builds bridges between the various feminist factions, Wendy Chapkis advocates for the development of a 'hybrid perspective' (Chapkis 1997, 213). This hybrid perspective combines aspects of radical feminist thinking with other feminist theories and political positions that support sex workers' rights to fair and just work,
8 as will be discussed further in Chapter 3. She posits that a newly amalgamated theoretical framework might help to cease the feminist infighting and allow new coalitions to form. Maggie O'Neill (2001), however, is not convinced of the feasibility of such a project. O'Neill argues, "the ways in which we might achieve these goals are fraught with problems of difference involving rights, liberties, and the fundamental means through which any or all might be achieved" (O'Neill 2001, 25).
Thanh-dam Truong (1990) also critiques feminist theories on prostitution and argues that feminist theories, like other social theories, have adopted a dualistic approach to thinking about sexuality, specifically, male/female, marriage/prostitution, and public/private (Truong 1990,44). By articulating the embedded assumptions and dualisms in these three themes, Truong identifies the limitations of conceptualizing sex work in dualistic or dichotomist terms as it "bypasses complex social processes"
(Truong 1990, 55). Instead, Truong advocates an understanding of sex work that recognizes the complexity and intricacy of systems of prostitution within "deeply- rooted dimensions of social inequality exacerbated by social change such as agrarian change, urbanization, foreign currency crisis, international labour mobility, and militarization" (Truong 1990, 55). She argues for a more nuanced way of conceptualizing sexual labour:
.. .there is a category of labour derived from the utilization of the body - its sexual elements - as an instrument of labour. This category of sexual labour is historically specific and may encompass class and race dimensions. To understand the dynamics of this category of labour, biological issues must be recognized as part of the social process and the human body must be understood in terms of its historical conception. (Truong 1990, 91)
9 Essentially, Truong is arguing that a comprehensive and dynamic understanding of prostitution as sexual labour begins with an analysis of geo-social location, social construction, historical specificity, biological differences, and the socio-economic organization of waged work with a specific focus on sexuality and women's labour.
Or as Kempadoo similarly asserts, the organization of sex work, "captures not only simply a profession or occupation, but also the organization and structuring of sexual and erotic labour through gendered, racial, and economic processes" (Kempadoo
2004a, 260).
Adding to Truong's theorizations on sexual labour, Laura Maria Agustin's
(2007) work on migration and labour markets highlights the relations between sex work and the global economy in a critique of discourses surrounding 'trafficking' and what she calls the 'rescue industry.' She draws attention to the contradictions between migrants and sex workers' own understandings of their travel and work experiences to the ways in which social workers, policy makers, feminists, and others in the business of 'helping' improve people's lives deny agency in an effort to manage and control the migrants they endeavour to rescue. Agustin argues that the social invisibility of migrants in the informal housework and caring industries renders them "passive subjects rather than as normal people looking for conventional opportunities, conditions and pleasures, who may prefer to sell sex to their other options" (Agustin
2007, 8). She further articulates that the way we conceptualize sexual labour is galvanized around a number of different factors and processes in addition to gender.
10 For example, racialization, globalization, industrialization, and migration all play important roles in what constitutes sexual labour and the construct of the sex worker.
As Truong, Kempadoo, and Agustin have argued, there are many forms and practices of migrant labour that parallel or have similar constitutions to sex work.
Wet-nurses, nannies, live-in caregivers, maids, and others in the housework and caring industries exemplify the gendered and racialized "underside of globalization" along with sex workers (Ehrenreich and Hochschild 2002, 3). The increase in patterns and movements of migration in recent decades is what Barbara Ehrenreich and Arlie
Russell Hochschild (2002) term a "world-wide gender revolution" caused, in part, by a
"care deficit" in Western nations (Ehrenreich and Hochschild 2002, 3, 8). This deficit of caring draws migrant workers from less affluent contexts to fill the holes and provide emotional and sexual labour services. By drawing on international examples of gendered migration and women's work in care-giving industries, Ehrenreich and
Hochschild make visible the more often invisible side of women's sexual and emotional labour and explicate how processes of globalization facilitate intimate dependencies.
Others too have drawn comparisons and made connections between patterns of
sex work and other feminized and racialized labour arrangements. Sanders, for example argues in favour of a more complex understanding of sexual labour through her analysis of women's work; her research reveals the similarities and differences between the sexualization of women's service work more generally with how sex workers experience the sexualization of their work more specifically. She writes, "Sex
11 workers engage in emotional labour for male clients, not only through physical relief but, like beauty therapists, provide pampering, frivolity and empathy. [...] ... the
'aesthetically pleasing performance' is expected in most service work industries, especially those that boast a predominantly female workforce" (Sanders 2005, 331).
She further argues that sex workers who engage in emotional management techniques are able to mitigate the negative consequences of their jobs and are therefore perhaps no better or worse off than other female labourers (Sanders 2005, 337). Indeed, she posits, "Prostitution is a consumer industry where sexuality is explicitly for sale, but it can be argued that this is not vastly different from other feminized workplaces where sexuality is capitalized on, not only by female workers but also by employers"
(Sanders 2005, 337). In this context, the labour activities and responsibilities of sex workers are seen and understood in relation to other types of analogous or comparable gendered work.
Similar to the complex and nuanced labour-based conceptualizations of sex work as articulated by Chapkis, Sanders, Kempadoo, Troung, and Agustin, the discursive strategies of the Canadian sex workers and allies that I interviewed for this project involved locating and describing their activities in labour frameworks. As such, it is with a labour analysis that this dissertation defines 'sex work' as the commercial sexual exchange that occurs between consenting adults. Similar to
Elizabeth Bernstein's (2007) definition, I employ the term sex work as "a nonstigmatizing and broadly encompassing designation for all forms of sexual labour"
(Bernstein 2007, 17-18). Additionally, as Kemapdoo articulates, sex work is "not a
12 universal or ahistorical category, but is subject to change and redefinition. It is clearly not limited to prostitution or to women, but certainly encompasses what is generally understood to fall into these two categories" (Kemapdoo 1998, 7). Perhaps the most comprehensive and compelling definition of sex work is that articulated by Truong.
According to Truong, prostitution can be defined as:
...a set of social relations which involves the provider of sexual services, the receivers or buyers and the regulators. [...] The nature of the social relations of prostitution concerns the regulation and control of the exchange of sexual services, the distribution of material gains, and the constitution of prostitutes (as providers of sexual services) as subjects. These aspects vary with history and the particular sites through which prostitution is practiced [sic]. Therefore a definition of prostitution must allow room for these variations. (Truong 1990, 15)
In the interest of supporting both global and local coalitions between various sex industry sectors and the individuals that work within them, this dissertation describes
Canadian sex work and sex workers very broadly, including women, men, and transgender/transsexual peoples who work as adult entertainment dancers, phone sex operators, actors in adult rated films, erotic web cam operators, escorts, massage attendants, professional dominants and submissives, and street-based workers, among others. Indeed, the bringing together of diverse sectors of the sex industry in addition to making connections between the sex industry and other comparable industries, allows for the greater possibility of building lines of solidarity and insisting, as
Kemapdoo asserts, "that working women's common interests can be articulated within the context of broader (feminist) struggles against the devaluation of'women's' work and gender exploitation within capitalism" (Kemapdoo 1998, 8).
13 Additionally, this broad definition and understanding of what constitutes sex work has been informed by the sex workers' rights organization that this dissertation is largely revolved around, Maggie's: The Toronto Prostitutes' Community Service
Project.4 As will be discussed in the subsequent chapter, current and former staff, members, and volunteers of Maggie's participated in the creation and design of this study and were interviewed about their experiences and perspectives on the criminalized status of sex work in Canada. The organization's policies and procedures, specifically those in the Operations Manual, define and describe their inclusive definition of sex work. For example, section 4.4 of the 'Principles and Beliefs' policy reads, "All sex work is equally valid, whether it be stripping, prostitution, phone sex or performing in pornography," and section 5.1 of the 'Aims and Objectives' policy reads "Maggie's aims to bring together people from all fields of sex work, including prostitutes, strippers, pornography performers and phone sex workers, to work together to improve their position in society" (Maggie's n.d., n.p). Reconceptualizing sex industry workers as sexual and emotional labourers recognizes the diversity of sexual jobs that fall outside of what is typically defined as prostitution. Further, it is not uncommon for sex workers to move from one sex industry job to another; the ten current and former sex workers who filled out the pre-interview questionnaire for this research project indicated that they have worked in a variety of sex industry locations and have performed a number of different sex industry jobs.5 For example, six of the
4 See http://www.maggiestoronto.ca 5 See Chapter 2, Table 2.0 for more detail.
14 ten have worked for escort agencies, five as independent escorts, four have worked as street-based sex workers, four in massage parlours, three as exotic dancers, two in pornography, two in domination, and two in phone sex, in addition to other activities.
However, as this dissertation focuses more specifically on the impact of
Canada's federal laws on sex workers' labour conditions, I concentrate my analysis on sexual and labour-related activities that are criminalized under one or more of the four key sections of the Criminal Code (namely, s. 210, 211,212, 213). Therefore, while my definition and usage of the term sex work encompasses a diversity of commercial sexual activities and jobs held within the sex industry, this research pays particular attention to street-based sex work, escorting, and erotic massage, whether they be incall6 or outcall7, independent or working for a third party. As such, sex work is used interchangeably with prostitution, escorting, and massage except where the differentiation of labour-activities is relevant to the context of the situation. In those instances, I include further descriptive language. This research does not focus on sex workers employed in legal and quasi-legal sex industry jobs such as dance, phone sex, pornography, BDSM, and the internet. While some of their work activities traverse a fine line between legality and illegality (as do aspects of escort and massage work), and while these areas of the sex industry can also face substandard labour conditions that could benefit from labour organizing and improved workplace protections, they
6 'IncalP sex work is when the client travels to meet the sex worker and sexual services are preformed where the sex worker resides. This includes a brothel, the sex worker's house, a massage parlour, an apartment, or room that the sex worker or her manager owns or rents. 7 'Outcall' sex work is when a sex worker travels to meet the client in a location that the client has arranged. This includes meeting a client at his hotel room, his house, or another location.
15 are more often impacted by the Criminal Code's 'Sexual Offences, Public Morals and
Disorderly Conduct' legislation (namely, s. 150 through 182) and as such will not be discussed in detail here.
A Note on Impetus and Goals
The impetus for this research arose from two key areas of my life: first, through my political commitment to sex work activism and my involvement as a member of the Board of Directors of Maggie's since the summer of 2006; and second, through my many years as a labour and union organizer for the Canadian Union of
Public Employees (CUPE). My understanding of sex work politics and the importance of sex work labour organizing are situated in these areas of my life. As such, much of the theoretical and methodological framing for this project are embedded in my personal and political involvement in the industry and in my work with Canada's oldest sex worker-run organization. While I was an ally of the sex working community though my other political organizing activities prior to joining the Board of Directors at Maggie's, it was through my increasing involvement with the organization that I was able to build a relationship of trust and solidarity necessary for a collaborative research project. Further, in addition to wanting the research to be as participatory as possible, I was particularly interested in working on a project that could have a beneficial impact on the community involved. Fittingly, the interviews were conducted with current and former members of Maggie's and it was action research principles and philosophies that guided the research design and implementation.
16 According to action researchers Mary Brydon-Miller, Davydd Greenwood, and
Patricia Maguire (2003), action research can be defined as "a participatory, democratic process concerned with developing practical knowledge... in the pursuit of practical solutions to issues of pressing concern to people..." (Brydon-Miller, Greenwood and
Maguire 2003, 10-11). Action researchers affirm that communities are capable of identifying their research needs, supporting the research process, and implementing their own solutions (Borda and Rahman 1991; Whyte 1991; Reason 1999). Therefore, it was in consultations and meetings with Maggie's that the design for the dissertation was created and with it came the explicit hope that the project might lead to progressive outcomes. Similar to Christine Bruckert, Collette Parent, and Pascale
Robitaille's (2003) research with sex workers in Montreal and Toronto, this research
"endeavour[s] to produce knowledge that can be useful to sex workers and that can open the way for social change" (Bruckert, Parent, and Robitaille 2003, 10).
A primary goal of the project was to examine the ways in which sex working communities have affected policy debates and legislative decisions as well as how legislation, in turn, affects sex workers' working conditions. In order to successfully investigate the complex interactions that occur between marginalized labour communities and policy makers in the process of policy development, a mix of methodological approaches is key. As such, the research employed in-depth interviews in combination with policy analysis and secondary source materials to examine contending views about the nature of policymaking and the consequences of legislative decisions. The chapters, as outlined below, look at four key areas as they
17 relate to Canadian federal policies and sex workers' labour rights: the historic trends
and current framework of the sex work-related sections of the Criminal Code of
Canada; variations in the regulation of sex work through an international policy
comparison of Sweden, the Netherlands, and New Zealand; the potential for sex work
labour organizing and for industry-wide labour improvements; and the possibility of
alternative policy frameworks for Canada's sex industry, specifically
decriminalization.
Starting with this introductory chapter's argument for a labour-based
conceptualization of sex work, the subsequent chapters flow from the general to the particular, from theory to policy, from international to Canadian. The following
chapters begin with a discussion of the methodological and theoretical challenges of
research on sex work before moving to a review of the regulatory and policy
frameworks that shape sex work ideologies. The dissertation then turns to the
international arena to present three case study examples by way of explicating the
ways in which the ideologies presented in the previous chapter play out in specific
contexts. From these international examples it becomes possible to understand the
implications and consequences of different policy models on sex workers' working
conditions. The dissertation continues to narrow its focus through a more detailed look
at the history and development of sex work legislation in Canada. The current
Canadian legislative context is subsequently examined in relation to sex workers' own
perspectives, critiques, and analyses. The final chapter then concludes with a concrete
18 and tangible 5-point action plan that includes recommendations for labour legitimacy and workplace improvements for Canadian sex industry workers.
Drawing on a mix of texts, policy documents, and in-depth interviews with sex worker labour activists, organizers, and allies, this dissertation examines the following general questions: How does federal legislation impact on the organization of sexual labour in sex industry workplaces? What strategies do sex workers employ in struggles for increased labour rights? How can sex workers and allies promote basic labour protections and standards within the industry? How can Canadian policy develop to better support sex workers' rights? How can policy makers better engage with sex working communities in the policy development process? How can sex work research produce policy-relevant outcomes?
Chapter Breakdown and Outline
Sex workers' own narratives are of central importance to this study. Indeed, as
Ann Weatherall and Anna Priestley (2001) argue, "sex workers' testimonies are crucially important because they have unique insights" (Weatherall and Priestly 2001,
325). As such, in each chapter I have endeavored to include as many sex worker voices as possible, both from the dissertation's interview transcripts as well as writings from current and former sex workers around the world. Fittingly, the dissertation's subsequent chapter introduces action research as the methodological framing of the project. Chapter 2 begins by highlighting the complicated and problematic history of much research on sex work. Often disregarded in the research process, sex workers
19 and allies have critiqued studies on sex work as not reflecting the realities of sex workers' lives (Wahab 2003). In an effort to rectify this history and to build bridges with sex working communities, I argue for the importance of participatory research methodologies despite their limitations for doctoral students. Chapter 2 concludes with an outline of the specific research methods, activities, and sites of study for this project.
The dissertation then moves to trace the debates within and across differing theoretical and policy approaches to the regulation of sex work. More specifically,
Chapter 3 puts forward arguments in favour of locating understandings of sex work in relation to labour-based discourses. In order to contextualize different ways of understanding sex work, the chapter reviews the three common regulatory and philosophical approaches that inform the legal, social, and political governing of the sex industry, namely abolitionism, legalization, and decriminalization. Chapter 3 demonstrates how the key three frameworks both inform, and are informed by, various feminist theories and conceptualizations of sex work.
Based on the theoretical and policy frameworks as outlined in Chapter 3, the fourth chapter presents three international case-studies as examples of how the policy perspectives and debates play out in specific countries. This chapter focuses on three distinct and divergent national regulatory frameworks that were informed by the theoretical and philosophical conceptualizations of sex work. Sweden supports an abolitionist perspective that criminalizes the purchasing of sexual services but not the selling. In the Netherlands, sex work is legalized and workers are subject to a series of
20 complicated laws and regulations. And in New Zealand sex work is decriminalized and sex workers have participated in the creation of health and safety guidelines.
Based on the international research, recommendations can be put forward on which policy framework best supports sex workers' rights and how to best improve the current Canadian legislative context.
The fifth chapter starts by looking back at the socio-political climate prior to the enactment of Canada's first Criminal Code in 1892. By tracing the history and creation of the Criminal Code in relation to the social and moral movements of the nineteenth century it is possible to contextualize more recent policy developments and legislative decisions. Accordingly, this chapter presents a chronology of prostitution policy development from the Contagious Diseases Acts in 1865-1870, though the
White Slavery Panic of the early 1900s, into the 1970s and the repeal of the Vagrancy legislation, to the most recent federal review of the prostitution laws in 2005, the
Subcommittee on Solicitation Laws. The chapter concludes with the voices and critiques of sex workers and argues that in order to develop progressive legislation, sex workers must be part of the policy process.
Next, Chapter 6 presents a discussion of the key findings from my interviews with sex workers and allies involved with Maggie's. Relying primarily on excerpts from the transcribed interviews, this chapter argues that the criminalization of prostitution activities leads to negative consequences and increased labour-related harms for sex industry workers. Interview transcripts were coded and grouped into themed areas based on sex workers' common experiences of the four main sections of
21 the Criminal Code of Canada, namely sections 210, 211, 212, and 213. Additionally,
and also based on the interview responses, this chapter presents ideas and suggestions
for improving sex workers' labour rights in Canada. From grassroots organizing
within individuals workplaces, to sector specific associations and groups, to large
scale unionizing, chapter 6 argues that sex industry labour organizing, in combination
with the decriminalization of the industry, is necessary for improving sex workers'
working conditions.
In addition to synthesizing the key points and arguments made throughout the
dissertation, the concluding Chapter 7 puts forward a series of five social and policy
recommendations based on the amassed research. The recommendations focus on the
necessity of a reconceptualization of sex work and sexual labour, the fundamental
importance of decriminalization, the implementation of sex worker created health and
safety guidelines for the sex industry, social and government support for sex workers
unionization and association building, and the cessation of mandatory and excessive
licensing schemes. In action research style, it is my hope that the recommendations
can be used as lobbying and advocacy tools by Maggie's and other sex worker
organizations in future political organizing campaigns.
22 Chapter 2
Action Research with Sex Workers and Allies: Dismantling Barriers and Building Bridges
The most admirable thinkers within the scholarly community... do not split their work from their lives. They seem to take both too seriously to allow such dissociation, and they want to use each for the enrichment of the other.
C. Wright Mills (The Sociological Imagination. New York: Oxford University Press, 1959. 195-196)
Following from C. Wright Mills' assertion above that admirable thinkers do
not disassociate their lives from their work, this dissertation represents a joining of my
political and activist commitments with my academic and research interests. As an
activist, a sex work ally, and a labour organizer prior to beginning my doctoral
dissertation, I was well aware of sex workers' critiques of feminist and academic
research and researchers. As such, when I began this project one of my key interests
was in finding ways that research and knowledge production could be turned into a
beneficial community project supported by all stakeholders. In seeking to find more
inclusive and innovative research methods, I learned about action research
methodology. It immediately struck a chord with my personal and political
23 commitments as it strives to constantly check, challenge, and critique the complicated and often problematic dynamics present in academic research settings.
Divided into two main sections, this chapter engages with research on sex work, feminist research, and participatory research. The first more in depth section, titled Methodological Approach, provides a detailed discussion of the methodological framing of the dissertation. I will begin by discussing the complications of research on sex work. Participatory research methods are particularly important in building bridges to calm the relationship of distrust between many sex workers and feminist researchers/academics. Next, I will introduce action research as the guiding philosophy behind this dissertation by looking at how it has been defined and the principles it promotes. While ideologically very important, especially in projects with sex workers, action research does not always provide the practical supports necessary in actually conducting the research. Last, I will assess the specific challenges faced by students who support participatory methods in their doctoral work. From the proposal stage, through data collection, and ending with publications after the study is complete, students face a variety of barriers when engaged in action research.
The second section, titled Research Assessment and Activities, outlines the specific activities, methods, and sites of study for the project. It is here that I will describe the interview methods used, the policy research conducted, and the rationale for the case study approach and focus on Maggie's: The Toronto Prostitutes'
Community Service Project. Further, I will discuss my own attempts to engage in action research for the dissertation and will evaluate my success and failures.
24 Ultimately, this chapter argues that employing participatory research methods, namely action research, is fundamental for research on sex work if the study is to have validity with sex working communities and if the results are to lead to beneficial social change.
While it might not be possible to ensure that all of action research's guiding principles have been met during the process, researchers should nevertheless make strides in this direction.
Methodological Approach
The methodological approach, from which the priorities and commitments of this research project were created, was originally informed by the long and tremulous history of feminist research on sex work. In an effort to not recreate this history and to instead build bridges between the academy and sex working communities, participatory research methods and philosophies, specifically action research, have been employed.
Sex Work Research
An unfortunate consequence of much research on sex work is that it can reaffirm the perception that sex workers lack the agency or ability to navigate the legal system and create suitable working environments for themselves. Despite the reality that sex work organizations have long organized to change public policy and public perception, rarely have researchers documented their efforts (R4SW 2 1999). Within
25 the existing literature, there is often a lack of analysis around sex worker agency and voice (Leigh 1998; McLeod 1982). Some researchers have tended to pathologize women in the profession by focusing primarily on identifying 'who' sex workers are and 'why' they have entered into the trade (Vanwesenbeeck 1994). Others have studied sex workers as marginal people, unable to participate in effective decision- making on their own behalf and have emphasized histories of poverty and lack of education (Mathews 1989; West 1998). Still others have chosen to focus on sex workers' histories of incest and sexual abuse or on the over-representation of socially disadvantaged groups such as Aboriginal populations, immigrants, gay or lesbian individuals, and drug users (DoJ 1989; Gorkoff and Runner 2003). Sex workers as exploited, oppressed, and abused women are not uncommon depictions (Greene 2001).
Notably, most research studies have focused on aspects of the street-based trade, neglecting indoor work almost altogether (Parsons 2005,1). As Stephanie Wahab
(2003) argues, "the absence of praxis in most studies conducted 'on' sex work has, among other things, contributed to a production of knowledge that many sex workers claim does not reflect realities" (Wahab 2003, 626). To date, comparatively few studies have examined how sex workers engage in policymaking, labour organizing, and social transformation. The common theme underlying the above examples of sex workers' victimization is congruent with radical feminist philosophies on sex work, as will discussed in the next chapter.
Often glossing over complexity and diversity in order to present homogenous images of the sex industry, feminist, specifically radical feminist, research does little
26 to help illuminate questions such as how sex workers are engaging in community change and in struggles for their human rights. Indeed, as Stephanie Wahab and
Lacey Sloan (2004) argue:
Although there is a broad spectrum of discourse and perspectives on sex work, the social science research overwhelmingly adopts a radical feminist perspective that views sex workers as victims of male aggression. Consequently, social science does not reflect the diversity of lenses through which we can study sex work or the diverse realities of sex workers' lives. (Wahab and Sloan 2004, 4)
Perhaps the most palpable example of research on sex work that incorporates a radical feminist positioning and neglects to include a discussion of sex worker agency is
Melissa Farley's (2007) online resource, Prostitution Research and Education (PRE)
(found at www.ProstitutionResearch.com). Established in 1995, PRE describes itself as a, "nonprofit organization that conducts research on prostitution, pornography and trafficking, and offers education and consultation to researchers, survivors, the public and policymakers" (Farley 2007, n.p.). With its radical feminist stance clearly articulated, Farley strategically presents examples of extreme violence towards sex workers as she neglects to account for the multiple and varied experiences within the industry; she conjoins domestic violence, sexual harassment, and rape with working as a dancer to pay college tuition (Farley 2007, n.p.). As a self-professed feminist,
Farley's studies of sex work do a distinct disservice to building bridges and solidarity between other feminist researchers and sex workers.
Many marginalized communities are wary of outsider and/or academic researchers due to histories of exploitative research methods and ulterior motives
27 (Borda 2001; Minkler 2004; Bournot-Trites and Belanger 2005; Benoit et al. 2005).
This unease and distrust is particularly evident between sex working communities and non-sex working feminist researchers (R4SW 1 1998). Indeed, it is not surprising that many sex workers are cautious of participating in research projects and choose to participate only if current or former sex workers are members of the research team
(R4SW 1 1998; R4SW 7 2004). Tawnya Dudash (1997), a feminist researcher and strip club dancer, recalls in her interviews with fellow dancers, "many felt that sex workers are constantly misrepresented by academics and journalists from outside the industry, and I was told by several dancers that they would not consent to an interview by anyone, male or female, who was not a sex worker" (Dudash 1997, 99). Similarly,
Sue Metzenrath (1998) writes:
For far too long researchers have been using sex workers as guinea pigs without any benefit accruing to sex workers as the result of research. Essentially academic careers are made on our backs. [...] In many countries sex workers already refuse to be involved in research because they can't see anything in it for them. After all, why would sex workers give freely of their information and knowledge and then it is used to suppress their livelihood? (Metzenrath 1998,11).
Maggie O'Neill (1996) too cautions against feminist researchers who, after completing their field research, "[return] to the campus, institution, or suburb where they write up their data, publish and build careers - on the backs of those they took data from"
(O'Neill 1996, 463). While certainly not all sex workers feel the same, Dudash's,
Metzenrath's, and O'Neill's comments clearly articulate the distrust and possible challenges that those who engage in research with sex workers may face.
Feminists who attempt to design non-exploitative research projects with sex
28 workers, according to Frances Shaver (2005), will likely be faced with three distinct challenges. First, the fact that the sex industry is as broad as it is diverse makes it difficult to collect representative data (Shaver 2005, 296). Second, since sex workers are still a highly stigmatized and marginalized group, there are unique confidentiality and privacy concerns about participating in research studies (Shaver 2005, 297).
Third, due to the long history of perceiving sex workers as victims, they are overwhelmingly dichotomized into simplified categories of good or bad, workers or exploited (Shaver 2005, 297). In order to overcome these three challenges, Shaver argues that researchers must engage in strategies that include participant-centered and harm reduction philosophies and acknowledge the diversity of the sex industry and sex workers (Shaver 2005, 314). A further useful strategy to overcome barriers in sex work research is to actively include sex workers themselves into the research design and process.
In 1998, the Health Care and Culture Center of Vrije University, the
Netherlands, brought together sex work researchers from around the world in its inaugural journal, Research for Sex Work (R4SW 1 1998). The journal, which focused on the social, cultural and health needs of sex workers internationally, was formed out of a dialogue among NGOs, research groups, and academics researching sex work and
HIV. A common theme among the articles (written by both sex workers and non-sex working researchers) was a critique of current and past research on sex work. Many of the articles recommend the greater inclusion of sex workers in the design and implementation of the research projects in order for the research results to better
29 support the needs of the community that it involves. For example, Metzenrath argues,
"If researchers are going to be sensitive to the needs of sex workers, service providers, legislators and those developing policy on the sex industry, then research should not only be driven by the personal and academic interests of researchers alone but they should try to support the research needs of sex workers and their supporters"
(Metzenrath 1998, 11). Similarly, in the subsequent volume of Research for Sex
Work, Priscilla Alexander (1999), prostitutes' rights advocate, founder of the North
American Task Force on Prostitution, and founding member of the California
Prostitutes Education Project, argues, "Ultimately, the only way to ensure that health care is provided in a way that is acceptable to sex workers is to involve them in the design, implementation, and evaluation of the programme. But not in a token manner"
(Alexander 1999, 14). While Alexander is arguing for greater inclusion in program design, her position in support of sex worker involvement can be applied to the research setting as well.
Sex workers' concerns about participating in research projects can be, at least somewhat, addressed through the greater inclusion of sex workers in the project design, collection, and dissemination. Wahab and Sloan argue that effective research on sex work is that which actively includes sex workers in the process (Wahab and
Sloan 2004, 3-5). They put forward four recommendations for academics researching with sex workers:
1. Researchers must collaborate with the sex workers they seek to study. This collaboration must include all aspects of research design, theoretical framework, methods, and dissemination.
30 2. Researchers must be cognisant of issues of social, political, economic and personal power and seek to equalise power relationships with the sex workers they study. This can be accomplished by acknowledging that sex workers are the experts on their own lives; researchers are the experts on research methods, and we all stand to learn from one another.
3. Researchers must bring the results back to the sex workers they study to ensure that the researchers' interpretation of the data is accurate.
4. Sex workers and sex work organisations are encouraged to hire their own researchers to conduct research of relevance to sex workers. Or, sex workers and sex work organisations are encouraged to obtain training or consultation that would enable them to conduct their own research. (Wahab and Sloan 2004, 5)
By working towards more egalitarian relationships that are built on trust and solidarity, non-sex working researchers may be able to conduct studies in ways that effectively respond to sex workers critiques of research more generally.
In recent years, there has been a growth in Canadian sex work research and publications that have been conducted and written, at least in part, in collaboration with sex working communities (Brock 1999; Lewis and Maticka-Tyndale 2000;
Lowman 2000; Sutdhibhaslip 2002; Bruckert, Parent, and Robitaille 2003; Lewis,
Maticka-Tyndale, Shaver, and Schramm 2005; Maticka-Tyndale, Lewis, and Street
2005; Sorfleet 2005; Jeffery and MacDonald 2007). Members of Sex Trade Advocacy and Research (STAR), for example, built community partnerships and alliances with sex worker organizations and trained individual sex workers to conduct the interviews during their multi-year study of sex workers' health and well-being (STAR 2004).
Also recently, Toronto and Vancouver-based legal advocacy organizations have worked in partnership with individual sex workers and sex work organizations to
31 conduct research and produce reports that advocate for legal and social change
(Allinott et al. 2004; Betteridge 2005; Childs et al. 2006). Three key reports from
Canadian legal organizations include Pivot Legal Society's Voices for Dignity: A Call to End the Harms Caused by Canada's Sex Trade Laws (Allinott et al. 2004) and
Beyond Decriminalization: Sex Work, Human Rights and a New Framework for Legal
Reform (Childs et al. 2006), as well as the HIV/AIDS Legal Network's Sex, Work,
Rights: Reforming Canadian Criminal Laws on Prostitution (Betteridge 2005).
More specifically, Pivot's Voices for Dignity is a compilation of the key themes raised by 91 sex workers interviewed about the consequences of the criminal law on their health, safety, and lives in Vancouver's downtown eastside. It additionally presents a legal analysis of the ways in which the criminal law is unconstitutional and indeed violates the protected rights enshrined in the Canadian
Charter of Rights and Freedoms. This report was submitted as expert testimony to the
Subcommittee on Solicitation Laws, to be discussed in Chapter 5. Pivot's second major influential report regarding the sex trade, Beyond Decriminalization, takes an in-depth look at the relevant areas of labour, employment, income tax, human rights, immigration, and family law that can be modified and used, post-decriminalization, to protect sex workers' rights. Through focus groups and one-on-one interviews with sex workers from a wide diversity of sex industry sectors, this seminal report will prove to be an indispensable resource if the Canadian sex work framework becomes decriminalized. And third, the HIV/AIDS Legal Network's Sex, Work, Rights, delves into the relationships between criminal law and sex workers vulnerability to
32 HIV/AIDS. It further presents a detailed Charter analysis to argue that criminal laws both disproportionately affect female sex workers and violate their constitutional rights. All three reports have assessed the ways in which Canadian criminal laws negatively affect sex workers' health and safety and all three reports have included specific recommendations for improvements based on the sex workers' expert opinions and involvement in the research process. By incorporating participatory methodologies in their research design and by including a diversity of sex workers' voices in their final reports, this recent wave in Canadian research and publishing presents important findings that sex workers themselves have participated in creating.
Similar to the encouraging Canadian examples of collaborative sex work research, Maggie O'Neill and Rosie Campbell (2006) showcase a research project that garnered positive outcomes for those involved due to the use of participatory methods.
In an effort to build bridges between street-based sex workers and local residents,
O'Neill and Campbell conducted a research project in a community where residents identified street prostitution as "a significant issue... in terms of their well-being and community safety" (O'Neill and Campbell 2006, 34). The local community (sex working and non-sex working) was involved in the research process from the outset; agencies were consulted and resident co-researchers were trained to conduct the interviews. During the fieldwork phase, the research team interviewed members of the community, local agencies, and both indoor and outdoor sex workers to assess the impact of prostitution and to make policy recommendations on how to best 'manage' its effect for all involved. Through the use of participatory methods and by actively
33 including sex workers (and other residents) in the process, O'Neill and Campbell were able to help facilitate a research project that was supported by all stakeholders. They argue, "constructive and inclusive consultation is required to develop policies and practices that promote civic renewal and active citizenship" (O'Neill and Campbell
2006, 33-34). As Teela Sanders (2006) similarly contends, "Collaborative research partnerships that work alongside informants, offering directorship and control to those who are normally subjected to the research process is a step towards reducing the exploitative nature of social science research" (Sander 2006, 463). Action research is one such methodology that goes a long way towards dismantling barriers and building bridges. It provides an important and innovative methodological framework that challenges conventional research methods and conforms to sex workers' critiques.
Action Research Methodology
What is currently understood to be action research (AR) grew out of a number of academic disciplines over the past 80 years (Pain 2004). At the end of the 1930s, social psychologist Kurt Lewin, one of action research's founders and the person often cited for coining the term, began to incorporate action-oriented activities into his field experiments on experiential learning and group dynamics (Burgess 2006,421; Minkler
2004, 686; Whitehead et al. 2003, 6; Koliba and Lathrop 2007, 53; Marsick and
Gephart 2003). According to Bjorn Gustavsen (2001), Lewin posited, "that an action research experiment must not only express theory but it must express theory in such a
34 way that the results of the experiment can be fed directly back into the theory"
(Gustavsen 2001, 17). In other words, an action research methodology is one in which theory can be articulated through and in action. In Lewin's early understanding of action research, the relationship between the research process and the results and outcomes becomes one that is intertwined and overlapping and leads to further social action (Minkler 2004).
In the 1970s, decades after Lewin's action oriented psychology experiments,
Orlando Fals Borda (2001) and some of his colleagues in Sociology, Anthropology,
Education, and Theology were becoming disillusioned with conventional research methodologies and the little beneficial impact their research was having on the
communities in question (Borda 2001). According to Borda, left-wing academics were
"increasingly preoccupied with life conditions which appeared unbearable in communities..." and they wanted their research to have more tangible results (Borda
2001,27). He explicates the veritable upsurge of participatory and democratic methods of research in the 1970s as researchers made increasing efforts to work with marginal communities as opposed to on them. He writes, "Efforts at institutional reconstruction of this type went on independently and almost simultaneously... without any one of us being aware of what our colleagues were doing. It was like telepathy" (Borda 2001, 27). Where Lewin's action research of the 1930s and 1940s advocated that there should be action outcomes with the aim of solving social problems, Borda's participatory action research of the 1970s promoted participatory
35 methods and design that actively included community members in the research process.
More recently there has been a dramatic growth in the literature and practice of action-oriented, participatory, and community-based research methodologies (Pain
2004; Burgess 2006; Dick 2006; Washington 2004). Indeed, in 2003 a group of academics supportive of increased community involvement in research studies co- founded a journal fittingly titled, Action Research. In the introductory article of the first volume, three members of the journal's editorial board defined action research as,
"a participatory, democratic process concerned with developing practical knowledge...
It seeks to bring together action and reflection, theory and practice, in participation with others, in the pursuit of practical solutions to issues of pressing concern to people..." (Brydon-Miller et al. 2003, 10-11). In addition to bridging theory, practice, and action, a basic principle in AR is that the people in a particular setting are capable of identifying their own research topics and priorities (Borda and Rahman 1991;
Reason 1999). In an AR study, then, the local community participates in the design and research process, the analysis of the results and releasing of data, and implementation of action-oriented solutions (Whyte 1991; Brydon-Miller et al. 2003;
Pain 2004). According to AR principles, the research process, results, and outcomes should have tangible benefits for the community involved (Flaskerud and Anderson
1999; Reason 1999).
AR depends and insists upon a research practice that is democratic and egalitarian in nature as "its goal [is] to support marginalized people in speaking,
36 analyzing, building alliances and taking action" (Reid 2000, n.p.). Indeed, AR actively promotes and encourages the direct participation of those with whom the study involves. Partnerships are formed between the academic researcher and the local researchers in order to "[take] collective action on a particular problem as it is defined by those who are affected" (Baker Collins 2005,11). The researcher, then, "becomes facilitator, collaborator, and teacher in support of those engaging in their own inquiry"
(Patton 2002, 269). In effect, AR is rooted in a practice that is "all inclusive, action- oriented, interactive, and empowering; geared not only towards observation, it aims at changing the location of both the researcher and the participants" (Phillips 1997, 102).
This process recognizes the diverse contributions from all participants and encourages collective action, evaluation, knowledge production, and social change (Reason 1999).
Action research can be viewed "as a continuum of definitions and philosophies, rather than a single approach" (Whitehead et al. 2005, 7). Sex workers who are critical of conventional research methods for the general lack of sensitivity to sex workers' needs and lack of sex worker involvement in the process would likely support action research principles.
Similar to C. Wright Mills' assertion at the start of the chapter that admirable thinkers do not divorce their lives from their work, the editors of the inaugural Action
Research journal argue that those who engage in and support participatory and community-based research equally prioritize their political convictions and their academic work. Brydon-Miller et al. argue that action researchers are:
37 ... basically a hybrid of scholar/activist in which neither role takes precedence. Our academic work takes place within and is made possible by our political commitments and we draw on our experiences as community activists and organizers to inform our scholarship. .. .on the whole those of us who define ourselves as action researchers are not the world's greatest rule-followers... On the other hand, we do tend to be political and concerned with achieving real outcomes with real people. (Brydon-Miller et al. 2003, 20)
If it is the case that those who engage in action research are often already engaged with the local stakeholders as organizers and activists, as Brydon-Miler et al. suggest, then the common insider/outsider dichotomy is problematized. According to feminist researcher Nancy Naples (2003), insider research is understood to be research that is conducted by a member of the community in question, whereas outside research is when a non-group member designs and conducts the project (Naples 2003, 46). In the action research context, the insider/outsider dichotomy is challenged because the academic/outsider/activist researcher partners with the local stakeholders to create a more inclusive setting where the local stakeholders have input into the design of the project and will benefit from the results. In the context of research on sex work, non- action oriented and non-participatory research conducted by 'outsiders' has been an historical point of contention and a reason why some sex workers choose not to participate in research altogether, as discussed above. Research on sex work that is being conducted with sex workers by sex worker allies who are politically engaged members of the sex working community will likely not meet the same level of resistance that an 'outsider' feminist academic might.
Orlando Fals Borda and Mohammad Anisur Rahman (1991) discuss the positions of insiders/outsiders (or external/internal participants) in the action research
38 setting and argue, "both types are unified in one sole purpose - that of achieving the shared goals of social transformation" (Borda and Rahman 1991, 4). Borda and
Rahman acknowledge that the researchers and the local stakeholders come to the research setting with different skills, knowledges, and techniques but they say that there is the potential for a more equal sharing of power when the diversity of knowledges and skills are equally respected and validated. Borda and Rahman critique the subject/object dualism of conventional research (researcher vs. researched) and instead argue that we must move towards a subject/subject relationship in an attempt to equalize the power imbalance (Borda and Rahman 1991, 4-5).
According to some, the inclusion of local stakeholders in the research project and an equalizing of power imbalances can actually lead to more valid and reliable results based on local expertise:
... action research is much more able to produce 'valid' results than ordinary or conventional social science. This is because expert research and local knowledges are combined and because the interpretation of the results and the design of actions based on the results involve those best positioned to understand the process: the local stake holders. (Brydon-Miller et al. 2003, 25)
In action research, the local stakeholders are the subjects within, rather than objects of, the research process (Mclntyre 2006, 633). Michael Quinn Patton (2002) notes, "The ultimate in insider perspective comes from involving the insiders as co-researchers through collaborative or participatory research" (Patton 2002, 269). Of course, not all social scientists support the view that local stakeholders should be active participants
39 in the research setting, that they have valuable skills and knowledges to contribute to the process, or that action research presents the potential for an equalizing of power.
For some, action research's principles and methods create a positive and inclusive environment where spontaneous decisions can be made and where issues of race and gender can be analyzed. For others, action research is "long on ideology and short on methodology" (Fong Chiu 2003,174). Its lack of rigid framework denotes a blurring and confusion of methodological stances and an "inability to establish a coherent constructive methodological discourse" (Fong Chiu 2003, 166). For Leonard
Krimerman (2001), action research's insistence that people in a particular setting are capable of identifying their own needs and studying themselves is incorrect. He asks,
"Why, for example, should homeless women be credited with more insight into their impoverishment that anyone else? People are often self-deceived about the factors responsible for their own situation..." (Krimerman 2001, 68). To expand on his stance, Krimerman uses the example of the now infamous and highly controversial
o 1974 Milgram experiments. In this instance, research subjects obeyed the orders of scientists, against their own moral judgment, even when the subjects believed that they were harming another human life. Krimerman draws on this example to argue that
'citizens' are largely unable and unwilling to participate in action-oriented research
8 Stanley Milgram, a psychologist at Yale University, devised an experiment to study obedience to authority figures. The experiment measured the willingness of study participants to obey the authority of a scientist. The role of the scientist was to persuade the participants to administer electric shocks to a second participant, increasing the voltage in intervals. In actuality, the second participant was an actor instructed to cry out in pain as the shockes were received. Milgram found that a significant number of the participants were willing to administer lethal doses of the electric shocks upon the request of the scientist (Milgram 1974).
40 projects because they simply obey the orders of scientists/authority figures. He posits,
"... most ordinary people, at this point in time, would not want to engage in
[participatory action research] or be capable of doing so. They would rather, and
happily, turn over public life and social inquiry to academic professionals or 'experts'"
(Krimerman 2001, 77). He further argues that it is only "'liberal' social science -
designed and conducted by professional researchers -... that would enable people to
break free of their (currently slavish) dependence on expert authority" (Krimerman
2001, 7). Of course, one could use the example of the Milgram experiments to argue that it is not 'ordinary people' and 'citizens' who should be discouraged from
engaging in research activities, but the scientists themselves. Krimerman's misuse of the Milgram experiments to argue against participatory research methods speaks to a
misunderstanding of action research altogether. Had the 'ordinary people' in question participated in the design and planning of the study, it is highly likely that Milgram's
research into obedience to authority would have looked entirely different. Milgram's
experiments did not even conform to the very first principle of research ethics as
identified in the Nuremburg Code:9 "Voluntary consent of the human subject is
absolutely essential. The subject must be in a position to make an enlightened
decision. This includes such factors as... complete information on the nature, duration,
and purpose of the experiment and an explanation of any risks" (Bournot-Trites and
Belanger 2005, 199).
9 The Nuremburg Code contains ten principles about research ethics that were developed during the 'doctor trials' of Nazi physicians who conducted horrific 'experiments' against concentration camp prisioners (Bournot-Trites and Belanger 2005, 199).
41 Other, and more compelling, critiques of AR come from feminist researchers who argue against its "gender-blind politics" (Reid 2000, n.p.). Some feminist researchers have long critiqued research practices that do not sufficiently examine relations of gendered subjugation and have instead argued for methodologies that more adequately represent and reflect on women's diverse experiences and knowledges (Harding 1987; Harstock 1987; Smith 1987). Notable feminist researcher
and founder of feminist epistemology Sandra Harding (1987), for example, has argued
in favour of incorporating feminist analyses that go beyond simply 'adding women'
into research practices (Harding 1987a, 3-5). In her discussion of the distinctiveness of feminist research from more traditional social science research, she asserts that
feminist research not only stems from women's experiences but is also designed for women insofar as the "goal... is to provide for women explanations of social phenomena that they want and need" (Harding 1987a, 8). Further, in effective feminist research, the researchers themselves are positioned within the same 'critical plane' as the research topic; in other words, "the researcher her/himself must be placed within the frame of the picture that she/he attempts to paint" (Harding 1987a, 9). Harding
argues that the 'subjective' element of researcher inclusion in the research process
actually increases the reflexivity of the research and contributes to the "best feminist
analysis" (Harding 1987a, 9). This positioning of oneself in the research project, or
'standpoint' as Nancy C. Harstock (1987) contends, opens the entire process up to
scrutiny and analysis.
42 While many action researchers have been inspired by feminist research principles and practices (Maguire 2001), few have acknowledged these linkages and have made systematic attempts to create an action research with feminist practice
(Reid et al. 2006, 316). Women's voices have tended to be marginalized within action research when they have not been specifically addressed (Pain 2004, 657). Indeed,
Patricia Maguire (2001) asks us to consider, "Without grounding in feminism, what would action research liberate us from?" (Maguire 2001, 66). Recently, notions of a feminist action research (FAR) have developed in an attempt to transform the male dominated structures of action research itself and to infuse it with critical feminist theory (Reid 2000; Reid et al. 2006). Feminist action researchers argue that it is through feminism and action research together that research can become a potential ableing factor in challenging systems of oppression (Reid 2000; Boontinand 2005;
Reid et al. 2006; Maguire 2001). Colleen Reid et al. (2006) utilize feminist action research tools in their study with low-income women to reduce social isolation. They define FAR as:
... a conceptual and methodological framework that enables a critical understanding of women's multiple perspectives and works towards inclusion, participation, and action, while confronting the underlying assumptions researchers bring into the research process. Feminist participatory action researchers seek to facilitate building knowledge to change the conditions of women's lives, both individually and collectively, while reconstructing conceptions of power so that power can be used in a responsible manner. (Reid et al. 2006,316)
Similarly, Jan Boontinand (2005), writing for the Global Alliance Against Trafficking in Women, advocates a feminist participatory action research model in her research on
43 trafficking, women, and Cambodia. She argues in favour of a methodology that incorporates the basic principles of feminist research (focusing on the lives of women, the possibilities for change, and the accessibility of knowledge production) with the basic principles of action research (combining investigation, evaluation, and action)
(Boontinand 2005,182-83). Indeed, the inclusion of feminist praxis in action research methodology is important if action research is to achieve its stated goals of social change, especially in women's lives.
Where feminist research puts gender and sexism at the forefront of inquiry and shifts control of the research process from the traditional hands of male academics into the hands of female researchers and female participants (Maguire 2001; Lennie et al.
2003), anti-racist research similarly puts race and racism at the center of its inquiry and practice (Varcoe 2006). Anti-racist activists and scholars are explicitly critiquing the absence of discussions of race and racism within action research contexts (Bell
2001; Varcoe 2006). Similar to action research gaining inspiration from feminist politics, American civil rights and Black Nationalist movements have been "firmly rooted in action research tradition," yet rarely, if ever, credited as contributors to its early theoretical development (Bell 2001, 49). Ella Edmondson Bell (2001) argues, "in the USA where the fight for racial equality has historically dominated the landscape, an eerie silence lurks when it comes to discussing action research techniques to dismantle racial oppression" (Bell 2001, 49). The understanding that both sexism and racism, and therefore feminism and anti-racism, work to determine our lives, led M.
Ann Philips (1997) to create a feminist and anti-racist participatory action research,
44 FARPAR. She argues, "While PAR researchers understand that research can be a tool for social change, addressing imbalances of power, mostly around issues of economic marginalization, FARPAR researchers can use the research process to address power differences related to race, class, and gender" (Philips 1997, 102).
Perhaps the important lesson to be learned from feminist and anti-racist researchers is that action research does indeed hold the potential to transform research practices when it is used in participatory and self-reflexive ways. Unlike more conventional methodologies, the flexibility of AR allows for situations of collaboration that can lead to new, more meaningful, and less exploitative research processes (Reason 1999). Ideally, action research will do more transforming towards egalitarian ways than simply tweaking current research practices. Indeed, as AR continues to benefit from the greater inclusion of feminist and anti-racist priorities, there is the greater possibly of a meaningful shift from traditional research on communities to action research with communities.
Sex worker researcher and academic Deborah Brock (n.d.) provides an interesting example of the importance, and yet difficulty, of this transition from research on to research with. Brock self-reflexively admits to a significant methodological change in her thinking and research practice with sex workers. She writes, "I don't want to talk about prostitutes as if they are subjects of my research study, as I did in my first book on prostitution" (Brock n.d., n.p.). She goes on to discuss the importance of active collaboration between researchers and sex workers, in particular, one that does not always require agreement between the parties; action
45 research principles are enacted when sex workers' voices are weighted equally to that of the academic/researcher in disputes. In her comments about a joint-book project with sex worker activist Valerie Scott, Brock argues that their disagreements,
"enlivens our text, making it more engaging and challenging for the reader" (Brock n.d., n.p.). Certainly in a situation of true collaboration where Brock's and Scott's voices are weighted equally, their disagreements can create a pedagogical environment where power imbalances are problematized. In actuality though, it is extremely difficult to create such an environment when one member stands to gain more than the other from the collaborative project. I am reminded here of Sue Metzenrath's and
Maggie O'Neill's comments that numerous academic careers are built on sex workers' backs (Metzenrath 1998,11; O'Neill 1996, 463). Indeed, Brock further comments,
"When prostitutes are research collaborators, [they] are not under the microscope...
When academic researchers allow oppressed groups to speak for themselves, it requires a very different methodology" (Brock nd., n.p., emphasis added).
Interestingly, Brock presents a context that on the surface sounds as though it supports action research principles, yet she writes about academic researchers 'allowing' marginalized groups to speak for themselves. In a truly collaborative context, whether it is research based or a joint-book project, neither party would have the ability or authority to 'allow' the other their voice. Despite her self-reflexivity and best of intentions to research with sex workers, Brock inadvertently falls victim to reinforcing the kind of academic/sex worker context that has been critiqued by sex working communities. It is here that Lui Fong Chiu's (2003) assertion that participatory
46 methodologies are perhaps more ideological than practical is most compelling. While action research presents important participatory ideas on collaborative research for
social change, there are many logistical and practical questions about how one actually goes about doing this. Is it possible to have an AR project that truly supports equal participation with researchers and stakeholders where collaboration and self- reflexivity are central?
Colleen Reid (2000), as a then self-described first time researcher, admits to being seduced by the promises of equality and inclusivity outlined by AR. In her study with low-income women she found that".. .power imbalances were often enforced and that the research site often inhibited a truly collaborative research environment" (Reid
2000, 169, emphasis added). Through her reflection on the completed study, Reid found that she was better able to understand her complex position as researcher and her unwitting reproduction of some of the dynamics she originally set out to undermine (Reid 2000). Akin to other action researchers, Reid struggled throughout the action research process, from logistical constraints at the design and implementation stage through to unbalanced power relations during data collection.
She posits, "as an academic researcher I needed to acknowledge my position of power while consciously managing my responsibility as a person who has access to research and its power" (Reid 2000, n.p.). While the acknowledgement of a position of power and privilege is an important first step, the question remains, what happens after? In what ways is the socially conscious researcher to engage in research? Issues with and struggles over power shape our daily social practices; power is inescapably present in
47 all of our actions, reactions, and interactions (Lennie et al. 2003, 64). Reid argues,
"Perhaps a goal of [action research] should be to understand power relations in all of their complexity, rather than an unrealistic leveling of power relations in an organized setting" (Reid 2000, n.p.). Despite the logistical and philosophical challenges, Reid continues to endorse participatory methods of research and greater inclusion of stakeholders in the research design (Reid 2000).
Naples similarly discusses the challenges that she faced in a participatory research project with a woman who was a survivor of childhood sexual abuse (Naples
2003). Despite her best of intentions for a collaborative venture, Naples found that they each had different goals for the project and that, in the end, the woman was essentially participating just to help her. Naples and her co-collaborator were not benefiting equally from the project, which made it difficult to achieve equitable results. She writes, "Despite my theorizing about an alternative approach to knowledge construction and commitment to feminist participatory research, the product clearly privileged my voice" (Naples 2003, 190). Since power relations are inescapable and since it is often the case that there is an imbalance in who benefits from the project, perhaps a more successful tactic is to work toward mitigating the possible discrepancies and disparities created through and during the research process but to be cognizant that true equality will likely not be achieved and that some voices will be privileged over others.
48 A Student's Action Research
For her doctoral dissertation at the University of Toronto, Stephanie Baker
Collins (2005) used a participatory action research model to "honour the knowledge and wisdom of those living in difficult circumstances," to listen "to the voices of households who are poor," and to "provide a deeper understanding of the multi dimensions of poverty" (Baker Collins 2005, 9). Baker Collins argues that participatory research serves a number of key goals, including: the incorporation of voices from marginal populations; to honour community knowledge; to shift the role of researcher to listener; to work towards social justice; to fulfill basic human needs
(Baker Collins 2005, 10). While on the one hand these goals and objectives are highly valuable, on the other hand they can be difficult to accomplish, especially for some.
Students who endeavor to follow action research principles and utilize action research tools for their dissertations are confronted with a variety of complications and challenges. As Baker Collins attests, "engaging in participatory research as part of a doctoral dissertation brings with it a specific limitation regarding participation at each stage of research" (Baker Collins 2005, 12). In many cases, the challenges faced by students will be similar to the challenges faced by the tenured academic. This section, however, will focus exclusively on students.
Prior to conducting dissertation research, students are required to produce a thorough and original proposal to be approved by the students' supervisory committee and his or her academic department. The dissertation proposal generally includes details about the project design including the area of research, the goals of the thesis,
49 the theoretical perspectives, and the methodology (Burgess 2006, 420). If either the supervisory committee or the departmental review committee do not endorse participatory methods in the students' research design they might not support the proposal moving forward. In a best-case scenario, both committees support participatory methods and will give the proposal to the university's ethics review board for institutional approval. The ethics review board has the ultimate decision making power and can accept, reject, or recommend amendments to dissertation proposals. Since both the sex industry and participatory methodologies are contentious topics, the ethics committee may decide to not approve the project based on three primary concerns: the methods proposed (for example, interviews and participant observation); the location of the fieldwork (for example, illegal brothels and red light areas); and institutional reputation (for example, media headlines and public concerns)
(Sanders 2006, 451-452). Essentially, prior to beginning the research, students and other academic researchers must seek approval from a number of institutional bodies that may or may not support the proposed design and methods of the project, which can make it difficult to include the local stakeholders in the design phase.
Dissertation committee, departmental, and ethics requirements and forms are heavily regulated and often leave little room for adjustment and modifications. In action research, though, decisions about the project should happen in collaboration with local stakeholders (Borda and Rahman 1991; Whyte 1991; Brydon-Miller et al.
2003). If the proposed research design identified by the stakeholders and developed through a consultative process with the community members is incongruent with the
50 regulations and requirements of the students' supervisory committee, the departmental committee, or the university ethics regulations, the student might not be institutionally sanctioned to participate in the project for his or her doctoral work. Students do, of course, have the option of designing the research project without consultation with the local stakeholders and then working to incorporate participatory and action oriented methods after it has been officially approved. This option is not the most egalitarian but given the layers of potential barriers and university protocols on dissertation proposals, it may be the most feasible.
Baker Collins argues that one of the advantages for students who wish to engage in action research is that the research project itself is not bound by the same rigorous time constraints as for faculty members (Baker Collins 2005, 12). Unlike faculty members who might have specified and regulated time limitations on their externally funded research projects, students often have generous institutional times to completion guidelines. But for how long can one afford to be a student? With the rising cost of tuition and general living expenses many people cannot afford to remain students for extended periods of time and therefore may not be able to foster the kinds of inclusive environments needed for true action research. Additionally, doctoral students are often required to submit their dissertation proposal months in advance of conducting the research to allow time for it to travel through the various institutional channels and committees. Conflicting expectations can arise over timelines where local stakeholders may not be willing or able to postpone the research, in which they participate, to such an extent (Minkler 2004; Benoit 2005,271). External funding
51 demands, life circumstances, and job changes may make it difficult for local
stakeholders to wait while the student's proposal receives university approval. Indeed, time and other logistical restrictions put on students by their home institutions can
create significant barriers early in the action research process.
Additionally, and perhaps more similarly to tenured researchers, students are
faced with institutional expectations of producing publishable original and
independent articles and chapters. Issues of intellectual property and copyright
legislation as well as questions of authority and ownership over the research results are particularly important (Bournot-Trites and Belanger 2005, 204). The common phrase
'to publish or perish' is especially relevant in this context. If researchers are working
in the spirit of collaboration and partnership, decisions over the dissemination of data, how and where articles are published, and co-authorship will happen by agreement between researchers and stakeholders. As other action researchers have articulated
above, it is common for the two parties to have different needs and expectations from the research process, which can lead to an imbalance in power (Minkler 2004, 689).
While some argue that action research has the potential to be a truly libratory model
for social science research, academic researchers may find it a difficult methodology
due to practical and logistical concerns related to dissertation proposals, ethics review
boards, time constrains, and rights of publication. Despite the difficulties academic researchers may face, action research's principles and tools are important in
considering how to engage in participatory and collaborative research processes.
52 Research Assessment and Activities
The specific research activities for this dissertation were divided into three key phases: policy analysis; a literature review; and one-on-one interviews. Each phase was informed and guided by action research principles and I endeavored to use action research tools where feasible. Both the project itself and the specific interview questions were designed in collaboration with sex work activists from Maggie's. In some ways, the project was successful in incorporating participatory methods and in other ways not.
Action Research Assessment
Prior to my direct involvement with the sex workers' rights movement through
Maggie's, I had been involved peripherally as a sex-positive, Marxist feminist and
HIV/AIDS and queer rights activist. For over eight years before joining the Maggie's
Board of Directors I worked and volunteered at a number of feminist, social justice, labour-rights, and queer organizations in three southern Ontario cities. My involvement in the 16th International AIDS conference organizing committee where I worked specifically on the community-development section of the conference and helped to facilitate the 'Sex Worker Networking Zone', combined with my background as a labour organizer with the Canadian Union of Public Employees
(CUPE) and Teaching Assistant in a course on HIV/AIDS for multiple years, led me to want to conduct research on a social justice topic. At the outset of my doctoral
53 degree, and prior to considering action research as my methodological framework, I intended for my dissertation to study sex work and HIV. Upon mentioning this to a
Montreal-based sex worker rights activist I was immediately persuaded to choose a topic in collaboration with my local sex working community; a topic that could assist
in the community's organizing efforts. It was then that I began to reconsider my methodological approach and decided that I wanted to work on a collaborative project.
Shortly thereafter, in the late summer of 2006, Maggie's had heard about my involvement with the international AIDS conference and my publications on
international sex work policies and asked me to join their Board of Directors; a position I immediately accepted. Originally founded in 1986, Maggie's is an
organization nan by and for women, men, and trans people working in the sex trade and is a catalyst in the sex workers' rights movement in Canada. Its mission is to provide education and support to assist sex workers in their efforts to live and work with safety and dignity. One of the key activities of the organization is to improve working conditions for Toronto-based sex workers; Maggie's board, staff, and volunteers have been organizing toward labour legitimacy and health and safety
standards in the sex industry for well over two decades.
Unlike other feminist researchers who might encounter hostility or
apprehension when attempting to conduct research on sex work (Dudash 1997;
Metzenrath 1998; R4SW 1 1998; R4SW 7 2004), my participation as a member of the
Board of Directors and prior commitment to sex workers' rights, HIV/AIDS, and
labour organizing meant that I received supportive and enthusiastic responses when I first mentioned wanting to work on a collaborative project. Through the fall of 2006 and into 2007 my dissertation research was a topic of conversation at numerous board meetings as well as one separate meeting devoted entirely to the project. As we brainstormed ideas for research that would be useful, Maggie's staff and board members kept coming back to the importance of labour organizing and labour standards in the sex industry. In the end, it was decided that it would be helpful to have data collected about the impact of the prostitution-related sections of the
Criminal Code on sex worker's labour rights as well as how sex workers impact policy formation. In action research style, it was the community members who identified the topic for the research project (Minkler 2004, 687). In addition to their early involvement in deciding the overall topic for the dissertation, Maggie's board and staff were also involved later in the design stage when early drafts of the proposal were sent out for specific feedback and suggestions. All comments on the dissertation proposal were incorporated into the final version prior to it being submitted to my supervisory committee and departmental review committee.
The data collection and other research activities began upon approval from the university ethics board. The only part of the data collection process that was collaborative was the creation of the interview questions. As the material gathered from the interviews would help to inform policy recommendations and suggestions for future labour organizing campaigns, it was particularly important for the local stakeholders to be able to participate in the process. I met with a group of Maggie's board and staff to discuss the more general interview areas as well as the specific wording of the questions. The interviews themselves were transcribed within a week of being conducted and were sent to each interviewee for approval. Individuals were encouraged to modify their transcript and were asked only to return them to me once they were fully comfortable with how our conversation was documented. Most interviewees made only minor changes to their transcripts and some, not at all.
Seeking final approval from the participants themselves before analyzing the data set was particularly important and allowed for greater participation and collaboration in the data collection process. As Brydon-Miller et al. argue, greater inclusion of stakeholders in research can lead to more valid and reliable results based on local expertise (Brydon-Miller et al. 2003). Further, since research on sex work has frequently denied sex workers' their own voices, participant review of the transcripts was particularly meaningful (Wahab 2003, 635).
While I was politically committed to working towards the greater participation of current and former members of Maggie's in the research process, I was simultaneously committed to my involvement in the organization and to sex workers' rights more generally. Over the three years that I have been a member of Maggie's, I acted as the Board of Directors treasurer and secretary, I designed and produced a series of educational and promotional postcards, I attended international sex worker conferences in Las Vegas and San Francisco, and I participated in the Maggie's contingent of the City of Toronto's annual Pride festivities and the City of Toronto's
Nuit Blanche 24-hour art festival. I further coordinated day-long Maggie's information tables at a downtown Toronto neighbourhood Business Improvement Association
56 street festival that had an explicit anti-prostitution philosophy and I participated in tabling at a 'Canadians for Choice' event. Additionally, I helped update the organization's policies and operations manual, I attended two day-long strategic planning and board development days, I assisted in the creation of new outreach positions and programs for the organization, and I fundraised over $10,000 for labour organizing and promotional projects. I was invited to represent Maggie's and participate in a strategic organizing day with other key sex work activists from across the county hosted by the Canadian HIV/AIDS Legal Network. I also worked with a small group of Maggie's members and staff to develop and present a five week course for the Toronto Women's Bookstore titled, "Everything You Wanted to Know About
Sex Work - but didn't ask." Academically, I acted as the Maggie's representative in a cross-Ontario study of women and HIV, I co-guest lectured in undergraduate university classes with Maggie's staff and members, and I co-published two journal articles, one with a member and one with a staff. Further, when I was the Course
Director in a course I developed on sex work and labour, I brought in members and staff of Maggie's as guest lecturers. In these and other ways, I have endeavored to fulfill my political commitment to the sex workers' rights movement and to Maggie's.
A primary goal of action research is that the results should lead to social justice goals and should have tangible benefits for the community involved (Brydon-Miller et al. 2003; Whyte 1991; Minkler 2003). As Jacquelyn Flaskerud and Nancy Anderson
(1999) argue, the results of the research project should be returned to the community stakeholders (Flaskerud and Anderson 1999, 341). As such, I synthesized the results of Chapter 4 so that a plain language synopsis of international policy frameworks could be included on the Maggie's website and used as future resource information. After
creating the international policy synopsis, I solicited input and advice from my fellow board members to confirm their approval of the material for the website. Additionally,
Chapter 6 of the dissertation includes first person accounts of workplace satisfaction
and suggestions for improvements. These suggestions are based on experiences and
opinions of sex workers and allies who have been part of labour organizing
campaigns, both in the sex industry and outside of it. Ideally, the suggestions for
change will be used by the organization to assist in its labour organizing and
workplace rights campaigns. And finally, the dissertation concludes with a chapter
devoted to concrete policy recommendations that can be used as lobbying and
advocacy tools by Maggie's and other sex work organizations. A draft of the 5-point
action plan was given to each interviewee for feedback so as to make sure that it
incorporated each person's key suggestions for social, labour, and legislative change. I had email, phone, and face-to-face conversations with those interested to discuss the
concluding recommendations and solicit their feedback for incorporation prior to
submitting the dissertation for defense. Indeed, I have made efforts to include practical
applications and recommendations of political relevance to sex workers' rights
activists and organizations in this dissertation, a copy of which will be given to
Maggie's for inclusion in the resource library.
58 Research Activities, Methods, and Sites of Study
In order to study the effects of federal policies on sex workers and the effects of sex workers on federal policies, I separated out the main research activities into three phases: first, an analysis of three international sex work policy examples;
second, a literature review of writing on sex work, feminism, and emotional labour; and third, in-depth qualitative interviews with sex workers and allies associated with
Maggie's. While different methods were used during each phase, the data collection processes often overlapped and informed my analysis and understanding of the next.
For example, I was reading the work of key feminist theorists during the months that I was conducting the in-depth interviews and I was analyzing the international policy examples and reports as the interview questions were being collaboratively designed.
The first phase of the research consisted of an analysis of Canadian, Swedish,
Dutch, and New Zealand public policy reports and documents related to their respective sex work laws. The policy review purposefully considered which
individuals were consulted and documented as expert knowledge producers as well as how often sex workers themselves figured in the various reports. Where possible, the
voices of sex workers were included to either support or oppose the findings of the policy documents. The findings from this first phase of my dissertation research
contributed to Chapters 4 and 5. The second phase of the research included a thorough
overview and synthesis of literature in three main areas: feminist theories and debates
on sex work and their relation to theories of sexual and emotional labour; the
effectiveness of different international prostitution policy frameworks; and literature
59 on action research methods and research on sex work. These three reviews provided the basis for my introduction, literature review, and methodological framing of the project as seen in Chapters 1,2, and 3. For the third and final research phase I conducted in-depth interviews with self-identified sex worker activists, labour organizers, and allies. Interviewees were informed of the purpose and content of the study and were told that they could refuse to answer any and all questions of their choosing.10 Prior to conducting the interviews, participants were asked to fill out a short demographic questionnaire.11 Questions included background information about the interviewee's age, racial and gender identity, involvement in the sex industry, and past labour organizing history. The questionnaire served as an assessment of the interviewee's experiences and knowledge of the three topic areas and was used to guide the interview process. For example, interviewees who answered that they presented at the Subcommittee on Solicitation Laws were asked modified questions than those who had not presented.
All of the interviews conducted adhered to the considerations outlined in the
Tri-Council Statement: Ethical Conduct for Research Involving Humans and were sensitive to and respectful of human dignity, especially those of vulnerable persons.
Confidentiality was preserved and anonymity was adhered to except in cases were interviewees chose to have their legal names recorded and included in the study. In these instances, interviewees were asked to sign the appropriate section of the
10 See Appendix A: Informed Consent Form. 11 See Appendix B: Demographic Questionnaire.
60 Informed Consent document to waive their anonymity. Participants who wished to remain anonymous chose their own pseudonym and personal identifiers were edited out of the transcribed materials.
All participants were self-identified sex worker activists, organizers, and key allies in Toronto and had experience in sex work advocacy, community development, and/or labour organizing. Further, all interviewees were current or former members and allies of Maggie's making the interview sample a small and targeted group.
Maggie's was the organization chosen as the site of the study for two key reasons.
First, due to the breadth and depth of the sex industry, achieving a representative sample of sex workers is extremely difficult (Shaver 2005, 296; Benoit et al. 2005,
264-265). As such, a case study approach that focused on a particular segment of the diverse sex working community (labour activists and organizers) from a particular geographic location (Toronto) and affiliated with a particular community group
(Maggie '5) was the most feasible approach and could provide relevant in-depth data through qualitative interviews. Second, my personal involvement with Maggie's situated me well to conduct the research as I already had the necessary connections and support of the individuals and organization who would participate in the study.
However, due to the limited number of interview participants and their common activist background, the interview materials cannot be taken as representative of all sex work, nor all sex workers' experiences and perspectives. As the sex industry is incredibly diverse and heterogeneous, achieving a representative sample of sex workers is nearly impossible (Shaver 2005, 296; Benoit et al. 2005, 264-265). Perhaps
61 a well-funded, multi-site study made up of researchers from across the country could achieve a more representative sampling. Given the logistical limitations of a doctoral dissertation, however, the case-study approach was most realistic way to provide primary data through qualitative interviews.
The individuals involved with Maggie's, with their wealth of knowledge and expertise, provided the ideas for the focus of the project and for establishing the research priorities. Initially, all current staff and board members were asked if they would like to be interviewed; further interviews were arranged through snowball sampling methods including referrals and word of mouth (see Table 1.0 below for demographic breakdown of interview participants). Most interviews were roughly an hour in duration with the shortest at forty-five minutes and the longest at three and a half hours. All interviewees received a $50 honorarium for participating in addition to light snacks and drinks during the interview. Additionally, if the participant traveled to the interview location they were given two tokens to cover the cost of public transit.
Participants were given the option of conducting the interview at my house, at their own home, or at the Maggie's office. Only one person chose the Maggie's office, the rest were evenly divided between my house and their own homes.
62 Table 1.0
Characteristic Number Interviewed (percentage)
Gender (N=12) Female 9 (75%) Male 1 (8.5%) No Response 2 (16.5%) Race (N=12) White/Caucasian 7 (58%) Black/Afro Caribbean 3 (25%) Latina 1 (8.5%) No Response 1 (8.5%) Sex Work Status (N=12) Current 7 (58%) Former 3 (25%) Ally 2 (17%)
In order to ensure that the research would pose no more than a minimal risk and that participants were fully knowledgeable about the study, I followed a number of important steps: the Informed Consent document was written in language accessible for a diverse demographic; interviews began with a discussion of roles and responsibilities of the participant and researcher; participants were informed of my legal responsibility to inform the appropriate authorities if certain illegal information was divulged; interview questions focused strictly on the activist and labour organizing activities of participants; participants were offered to view the interview guide in advance of the interview for their own reference; participants received a list of support and advocacy organizations should they require additional assistance after the interview.
63 Interview participants ranged in age from 29 to 49 (with an average of 36 years old) and their age of entry into sex work ranged from 17 to late 20s (with an average of 20 years old). Regarding length of time worked in the sex industry, the minimum number of years recorded was 'several' and the longest was 'decades' (with an average of approximately 13 working years). While the Maggie's members and allies who chose to be interviewed came from diverse sectors of Toronto's sex industry, they all shared the common experience of being politically engaged in the sex workers' rights movement. Some of the interviewees had been involved in lobbying for sex workers' rights for multiple decades and had labour organizing experience outside of the sex industry, whereas others were newer to political activism. The interviewee with the longest involvement with Maggie's had participated for 23 years, whereas two other interviewees had only been involved for one year (see Table 2.0 below).
All interviewees were asked the same series of questions focusing on three topic areas: first, the interviewees' assessment of how Canada's four key federal laws
(Sections 210 to 213) impact their workplace rights and safety; second, their past and present labour organizing activities both within and outside of the sex industry as well as their thoughts for future improvements; and third, their community engagement with Canada's public policy process, specifically the Subcommittee on Solicitation 10 Laws Review. While standardized interview questions were used, there were instances when interviewees were asked to elaborate on certain topics. The questions
12 See Appendix C: Interview Guide.
64 Table 2.0
Characteristic Number Interviewed (percentage)
Age (N=12, Average =36) 29-31 3 (25%) 32-34 2 (17%) 35-37 2 (17%) 38-40 3 (25%) 41+ 2 (17%) Age of Entry into Sex Work (N=10, Average=20) 17-19 4 (40%) 20-22 3 (30%) 23-25 2 (20%) 26-29 1 (10%) Number of Years Working in Sex Industry (N=10, Average=13) 3-5 3 (30%) 6-10 1 (10%) 11-15 1 (10%) 16-20 3 (30%) 21+ 2 (20%) Previous Sex Industry Jobs (N=10*) Escort Agency (in or outcall) 6 Independent Escort (in or out call) 5 Street 4 Massage Parlour 4 Dance 3 Porn (internet and video) 2 BDSM 2 Phone Sex 2 Performance/Burlesque 2 Other (including Brothels, Bars, Peep Shows etc) 3 Labour Organizing Background (N=12) Sex Industry Only 5 (42%) Non Sex Industry Only 3 (25%) Both Sex industry and Non Sex Industry 3 (25%) Neither 1 (8%) Years Involved with Maggie's (to 2008) (N=12, Average=7) 1-8 7 (58%) 9-15 2 (17%) 16-20 1 (8.4%) 20+ 1 (8.4%) No Response 1 (8.4%) * Most interviewees worked in multiple sex industry establishments
65 themselves were a mix of 'Experience and Behaviour Questions', 'Opinion and
Values Questions', 'Knowledge Questions', 'Sensory Questions', and
'Background/Demographic Questions' (Patton 2003). The final transcribed material from the interviews contributed to the analyses in Chapters 5, 6, and 7.
Conclusion
Research on sex work, as previously discussed, tends to focus on violence directed at street-based workers and neglects to consider the diversity of experiences and people working in the industry (West 1998; Greene 2001; Parsons 2005; Wahab and Sloan 2004). For sex worker activists and organizers, the over-simplification and over-generalization is a source of frustration. This dissertation research could prove to be an effective intervention into the dominant discourse of sex work and victimization by looking instead at how sex workers can change policy and improve their workplace conditions.
If action research is to be defined as, "a participatory, democratic process concerned with developing practical knowledge" (Brydon-Miller et al. 2003, 10-11), with an understanding that people in a particular setting are capable of identifying their own research needs (Borda and Rahman 1991), then this dissertation uses action research as it methodological framework. However, it was I who approached Maggie's with the idea of conducting a research project; Maggie's was not articulating a need for research prior to my initial suggestion. This meant that while there was overall
66 support and interest in the project, it was not "high on the agenda of the affected community" (Minkler 2004, 687). Indeed, while the local community was certainly involved in the creation of the research questions, the design of the project, and the modification of their interview transcripts, other aspects of the research process were not collaborative endeavours, including the policy, literature, and interview research processes, the writing of the dissertation, and the releasing of some of the results. Sex workers and allies involved with Maggie's did not have the time, resources, or interest in data analysis or interview coding. As Caroline Wang et al. (1998) contend, while there are advantages and benefits to participatory research, "many tasks associated with the [AR] process may be burdensome, impractical or even infeasible for some participants" (Wang et al. 1998, 84). Further, proponents of action research argue that the collaborative process provides an opportunity for the empowerment of local stakeholders to "improve their living conditions (or address their situation) through taking action themselves" (Boontinand 2005,181). Members and allies of Maggie's have been addressing their situations and taking action for themselves for over two decades prior to my involvement with the organization. In this way, while I hope that the process and results from my doctoral research will be at least somewhat useful and beneficial, in no way do I take credit for the 'empowerment' of any individual.
Action research proved to be helpful in terms of the participatory model on which the dissertation is based but less helpful in terms of the concrete tools that can be used in support of greater stakeholder involvement. As a student faced with institutional demands of original and independent research, it was difficult to follow all of action researches guiding principles. Indeed, while some claim that action research has the potential to be a truly libratory model for social science research, many others have justified and warranted critiques of it. Some of these criticisms relate to issues of power and privilege (Reid 2000), a lack of a coherent methodological framework (Fong Chiu 2003), and logistical concerns relating to financial accountability, geographic location, and time allotment (Baker Collins 2005).
It is imperative to recognize limitations and the complications of an action research methodology and to not be 'seduced by it promises', as Colleen Reid has argued.
While there are indeed many possible benefits to participatory research, as Wang et al. question, "Should we strive for full participation at each stage of a... project?" (Wang et al. 1998, 85). Perhaps offering the option of participation is a more effective approach (Wang et al. 1998).
Action research principles, however, did prove to be useful in addressing some of the critiques of feminist research put forward by sex working communities.
Creating a more collaborative research context that actively encouraged sex worker and ally participation was successful in gaining the support of those involved. It is likely, though, that a prime reason why I was not faced with the same hostility as other feminist researchers was my prior involvement in the organization. Because of this, in the context of my dissertation research the dichotomization of the insider vs. outsider researcher was problematized (Naples 2003). As a feminist and a student, I was an
'outsider', yet as a sex work activist and ally of the sex working community, I was an
'insider'. As Borda and Rahman argue, perhaps a more useful description of this
68 research context is that of the subject/subject relationship (Borda and Rahman 1991).
This is not to argue, of course, that simply because the dissertation used action research tools in an action research context that there was an equal sharing of power or that all parties stood to benefit equally. While interviewees received an honorarium for their participation in the project, they did not stand to benefit nearly to the same extent as I did; upon successful completion, I will receive my doctoral degree, they, obviously, will not. As such, while it is important to support the active collaboration and involvement of local stakeholders in the project itself, stakeholders should not be expected to contribute an equivalent amount of time or resources to the project unless they receive an equivalent advantage once it is finished; contributions should be commensurate to the benefits received. It is my hope that members of Maggie's will see this dissertation as part of their own making and will feel as though they have benefited from their involvement in the process. It is also my hope that my comrades at Maggie's will find it a useful tool in future campaigns for sex workers' rights.
69 Chapter 3
Policy Perspectives on the Global Sex Trade: Debates on Eradicating, Managing, and Legitimating Sex Work
In suggesting that prostitution is immoral because it involves the sale of one's body, feminists fail to understand the distinction between selling one's labour and selling one's body. A prostitute does not sell her body, she sells sexual services analogous to the sale of labour.
Pasqua Scibelli ("Empowering Prostitutes: A Proposal for International Legal Reform." Harvard Women's Law Journal. V. 10. 1987: 142)
Over the past two centuries, near countless books have been written on sex work and the sex industry from a diversity of theoretical and political positions and frameworks. Indeed, one could look at sex work texts in the areas of sexology (Miller
2000; Gemme 2003), criminology (Boritch 2003), harm reduction (Stoller 1998;
Allinott et al. 2004), HIV/AIDS (Law 2000; Sterk 2000; Evans 2005), personal narratives (Hollander et al. 1972; Almodovar 1993; Leigh 2004), or sex workers' rights (Pheterson 1989; Delacoste and Alexander 1989; Jenness 1993). One could trace the generations of feminist debates on the topic (Goldman 1970; Bell 1987;
Jeffreys 1997; O'Neil 2001; Stark and Whisnant 2004; Levy 2005) or one could look more specifically at youth involved in prostitution (O'Connell Davidson 2005), male
70 sex workers (Allman 1999), trans sex workers (Highcrest 1997), or sex workers' clients (Winick 1962; Lowman and Atchison 2006). Similar to the previous chapter, one could look solely at writings about research on sex work (O'Connell Davidson
1994; Wahab 2003; Shaver 2005; Lewis et al. 2005; Parsons 2005). One could either focus exclusively on the Canadian context (Brock 1998; Hanger and Maloney 2006;
Jeffrey 2004) or consider writings on international prostitution, trafficking in women, and sex tourism in Majority World contexts (Kempadoo and Doezema 1998; Thorbek and Pattanaik 2002; Brennan 2004; Kempadoo 2005; Agustin 2007). It is also possible to compile an effective genealogy of sex work (Bell 1994; Bell 1995) or follow more of an historical teleological approach (Rosen 1982; Walkowitz 1982; Backhouse 1985;
McLaren 1986; Bullough and Bullough 1987; Gilfoyle 1992).
Since this dissertation is primarily about prostitution policy and its effects on sex workers' labour rights, however, this chapter will review the three common regulatory approaches that inform the legal, social, and policy frameworks for governing and conceptualizing the sex industry. As such, the chapter will highlight the key theoretical and political positions on sex work: first, abolitionism and prohibitionism, which seek to reduce and eventually eradicate prostitution all together; second, legalization or regulation, which attempt to control and manage sex work and sex workers through state laws; and third, decriminalization or deregulation, which legitimates the sex industry and positions it within the same sorts of labour frameworks as other industries. In this discussion I will pay particular attention to how different feminist theories and political positions have, both historically and more
71 recently, conceptualized sex work and prostitution in relation to the 'white slavery panic,' the trafficking discourse, the forced/voluntary dichotomy, sex workers' victimization vs. agency, the feminist 'sex wars,' and labour rights. Radical feminism in particular is highlighted below as this positioning of prostitution as exploitation has had the most influence over recent Canadian policy developments.
Theoretical and Political Positions on Sex Work
While there are numerous legal ways to govern the sex industry as well as multiple ways of conceiving of prostitution and sex work, the diversity of perspectives can be generally divided into one of three common theoretical and political positions: abolition and prohibition; legalization and regulation; and decriminalization and deregulation (Shaver 1985a; Shaver 1985b; Scibelli 1987; Davis and Shaffer 1994;
Brock 1998; Kuo 2002; Wijers 2004; Self 2004; Kempadoo 2004; Bernstein 2007).
Based on their different conceptualizations of sex work, each approach advocates for a different policy and legislative direction.
Eradicating Prostitution and Sex Work: Abolitionism and Prohibitionism
Policy models based on abolitionist and prohibitionist philosophies have at their heart the same goal, to rid society of the sex industry. Exactly how the state goes about doing this differs depending on how sex work and sex workers are conceptualized. While both abolitionism and prohibitionism define sex work as a
72 social evil that should be eliminated (Backhouse 1985), there are varying opinions, and therefore strategies, on the most successful way to do so. Typically, abolitionist policies and frameworks are those that advocate the eradication of prostitution through suppressing the exploiters and protecting the victims (Davis and Shaffer 1994; Wijers
2004), whereas prohibitionist policies and frameworks are those that advocate the criminalization of all parties (Scibelli 1987; Shaver 1985a; Shaver 1985b).
According to Silvia Davis and Martha Shaffer (1994), abolitionists support the criminalization of only the actions of individuals seen to be controlling or coercing sex workers. For example, Pasqua Scibelli (1987), Gunilla Ekberg (2004), and Art Hanger and John Maloney (2006) argue that abolitionist models protect prostitutes from the harms of perpetrators. Indeed, this framework supports the view that the way to abolish the sex industry is to actively punish those who are supporting it while at the same time help those who are exploited within it. Therefore, clients, 'pimps', and
'traffickers' are charged and penalized whereas sex workers are not (Wijers 2004).
Female sex workers are understood to be the victims of male sexual violence in need of rescue (Ekberg 2004). There are a number of European countries that support the abolitionist perspective and legal system (Self 2004). Sweden13 is possibly the most well known of the European examples but France, Norway, and Finland, among others, have all moved towards abolitionist systems in relation to sex work policy
(Ekberg 2004).
13 For more on the Swedish sex work context see Chapter 4.
73 While prohibitionism as state policy similarly strives to eliminate the sex industry in its entirety, policy frameworks differ from the abolitionist models.
According to Scibelli, prohibitionsm is a model in which, "prostitution is illegal and penalized by the criminal law. This regime is based on the belief that effective law enforcement and repression can and should reduce prostitution" (Scibelli 1987,117).
In Canada,14 for example, which supports a state-wide prohibitionist model to eradicate prostitution, many aspects of sex work are criminalized and both the client and the sex worker are punished through the judicial system (Brock 1998). In criminalized systems of prohibition, sex work is characterized as a social ill that harms the prostitute, the client, and the moral basis of society (Shaver 1985b). Prostitution is often seen as leading to the destruction of the family, to decreasing property values, and increasing neighbourhood crime; both the prostitute and the client are blamed for this moral and social decay (Weitzer 2006; Scibelli 1987). In this instance, criminal law reflects public perception so that both prostitutes and their clients are criminalized and ostracized (Davis and Shaffer 1994). In effect, under prohibition, the entire prostitution industry, its workers and supporters, are legally and socially stigmatized.
Historically, Canadian policies and theories of prostitution have largely conformed to prohibitionist philosophies. Aside from a brief moment in history, from
1865 to 1870, when Canada regulated the sex industry with the Contagious Diseases
Acts, laws on prostitution have been designed in support of its eradication15
14 For more on the current Canadian sex work context see Chapter 5. 15 For more on the history of Canadian prostitution policy development see Chapter 5.
74 (Backhouse 1985; Backhouse 1991; McLaren 1986). Influenced by the moral and social purity movements in Britain and the 'white slavery panic'16 in the United States,
Canada's early Criminal Code contained a complex series of laws that targeted the selling of sexual services as well as provisions against frequenting a bawdyhouse and living on the avails of a prostitute, but they interestingly did not target prostitutes' clients (McLaren 1986). The laws were primarily designed to protect women and young girls from the procurer and trafficker but contradictorily criminalized the very women and girls they were meant to protect (Backhouse 1991). Indeed, the very act of being a prostitute was criminalized (Backhouse 1991). Historian John McLaren (1986) argues that there were clear double standards and inconsistencies in the early Criminal
Code. While prostitutes were understood to be victims in need of protection, at the same time they were believed to be providing a necessary outlet for innate and natural male sexual needs, which should not be criminalized; prostitution was both a necessary evil and a social evil (McLaren 1986). As the moral reform movement grew and gained mainstream popularity across North America in the early parts of the twentieth century, the social positioning of prostitution as a necessary evil began to erode and prostitutes were increasingly characterized as social ills (Rosen 1982).
Canadian and American policies were accordingly created and adapted to prohibit
16 The 'white slavery panic' refers to a public concern and social movement dedicated to eradicating incidences of trafficking in women across national or state borderers for the purposes of prostitution, generally in the early part of the twentieth century (Rosen 1982; McLaren 1986; Jeffreys 1997; Donovan 2006).
75 occurrences of prostitution where the prostitute, the procurer, and later the client, were criminalized in an effort to eradicate the whole of the sex industry (Donovan 2006).
Despite having similar end goals, the eradication of prostitution, those who support abolitionism frequently argue against prohibitionist models for social and legal reform. Scibelli, for example, advocates that the criminalization of prostitution through prohibition actually "creates or exacerbates" the harms that sex workers face
(Scibelli 1987, 128). She goes on to postulate that under criminalization, "prostitutes who have been abused by clients or pimps are discouraged from reporting these crimes because of fear of prosecution" (Scibelli 1987, 129). Similarly, Ekberg argues against prohibition on the grounds that it "criminalizes the victims of prostitution" (Ekberg
2004, 1205). It is much more common for feminists who are against prostitution to advocate for abolitionist models than prohibitionist ones. Indeed, the feminist theory and political framework that overwhelmingly supports abolitionism as both a philosophical stance on the sex industry and as a political strategy is that of radical feminism (Dworkin 1981; Farley 1998; Barry 1979, 1995).
While often couched in the language of the nineteenth century abolitionists and the early Moral Reformers, radical feminists have been highly successful in influencing prostitution policy both in Canada and internationally (Hanger and
Maloney 2006; Sutherland 2004). Contemporary radical feminist theorizing on women's subjugation, with its "coherent subject whose identity is tied to gender"
(Sutherland 2004, 149), has largely conceptualized women's secondary status in relation to women's sexual subordination to men (Dworkin 1981, 1997; Millet 1990).
76 Radical feminists have translated this ideological positioning into a clearly defined and well-articulated anti-prostitution stance, which has been, and continues to be, influential in informing public policy responses to prostitution-related issues. As Kate
Sutherland (2004) argues, "in making truth claims about women's experiences, radical feminists are able to make themselves intelligible in legal forums" (Sutherland 2004,
149).
Within radical feminist debates on sex work there has traditionally been a lack of focus on sex worker agency and instead an understanding that all sex workers are victims (Farley 1998, 2004). Radical feminists such as Kathleen Barry (1979, 1995),
Carole Pateman (1988, 2006), Sheila Jeffreys (1997, 2004), Janice Raymond (1998),
Melissa Farley (1998, 2004), Andrea Dworkin (2004), and Catherine MacKinnon
(2005), have written extensively about the abuses women endure in prostitution, often drawing on examples of extreme violence and using emotive words such a 'slavery' to describe these experiences. Further, they vehemently argue against conceptualizations of prostitution as sexual labour.
For example, Kathleen Barry (1979, 1995), the first Director of the abolitionist
Coalition Against Trafficking in Women, describes prostitution as a condition of sexual exploitation. She contends that prostitution has "developed from patriarchal capitalism" and is the "most extreme and most crystallized-form of all sexual exploitation" (Barry 1995, 11). In 1995, Barry published The Prostitution of Sexuality, an updated and amended version of her 1979 seminal text, Female Sexual Slavery. The more recent version challenges notions of voluntary prostitution and revises her
77 former position on 'choice' and the forced/voluntary distinction. Her new work dismantles the forced/voluntary dichotomy present in her older work in an effort to argue: "'choice' is turned into the rallying call for the promotion of sexual exploitation... as fostered by sexual liberals and the proprostitution lobby" (Barry
1995, 7).
In another early influential radical feminist text, The Sexual Contract, Carol
Pateman (1988) develops the concept of the 'sexual contract' to similarly critique the claim of 'choice' in prostitution. She argues that 'choice' in relation to sex work does not hold the same validity as 'choice' in regard to other kinds of women's work as prostitution is fundamentally different. She places prostitution within socio-political, historical, and geographic contexts to argue that at its roots, prostitution is not about labour but is instead about a particular 'sexual contract' that is fundamentally tied to patriarchal capitalism where men buy and sell sexual access to women (Pateman 1988,
2006).
Building on both Barry's and Pateman's work, Sheila Jeffreys (1997) puts forward another similar argument against the idea of 'choice' in prostitution. She maintains that concept of 'choice' has derived from masculinist philosophical ways of thinking and is particularly problematic in relation to ways of conceptualizing prostitution. She contends:
The language of choice puts the responsibility for prostitution upon women. [...] In relation to other areas of violence against women, asking the question why women stay... is recognized by feminists as victim-blaming. Only in relation to prostitution is this still seen as legitimate. (Jeffreys 1997,139)
78 Jeffreys writes of prostitution as sexual slavery, the foundation of women's oppression, a crime against women, and a form of violence. She coined the phrase
'prostituted women' instead of 'prostitute' to "bring the perpetrator into the picture" and to emphasize that "somebody must be doing something to the woman for her to be
'prostituted'" (Jeffreys 1997, 5).
More recently, in 2006, Jeffreys has advocated that prostitution "be placed within United Nations understandings of what constitutes a harmful traditional/cultural practice" (Jeffreys 2006, 386). She analogizes it to female genital mutilation, argues against the forced/voluntary distinction on the basis that all prostitution is forced, and even collapses together categories that should remain distinct such as prostitution/trafficking and women/girls. Indeed, Jeffreys argues both that there in an increasing "convergence between trafficking and prostitution, so that they have become hard to separate" (Jeffreys 2006, 386-387) and that analyses of prostitution should not separate women from children as they "experience similar damage"
(Jeffreys 2006, 390).
Other radical feminists have also problematically confused and collapsed divergent areas of analysis in an effort to homogenize their arguments. For example,
Andrea Dworkin (2004), who calls the sex industry "a euphemism for the sexual enslavement of women," has similarly argued that women and children cannot be separated in analyses of pornography and prostitution (Dworkin 2004, 138). Likewise,
Lee Lakeman, Alice Lee, and Suzanne Jay's (2004) sweeping generalizations and amalgamation of street-based sex work and indoor massage work allow their claims to
79 be easily challenged. They write, "... women in our streets and in our legalized prostitution sites (massage parlours) are only manageable to the men if they are heavily drugged and brutalized" (Lakeman et al. 2004, 249). Perhaps intentional or perhaps inadvertently, they make no mention or reference to research studies or academic literature in support of their homogenous and overly simplified assertion.
The radical feminist use of highly emotive language to describe the commercial sex industry is perhaps one of the most troubling aspects of their literature. Intended to evoke sympathy towards the 'victims of abuse' and anger towards 'male perpetrators of violence' the terminology is not only misleading, but often makes "sweeping claims... not supported by empirical studies" (Weitzer 2005a,
212) and "is designed for maximum shock value" (Weitzer 2005b, 935). For example,
Jeffreys describes the individuals involved in the commercial sexual exchange as
'buyer and bought' and the sex industry itself as creating its own 'distorted morality' in support of the 'abuse of women' (Jeffreys 2004, 389-394). Similarly, Dworkin draws on the language of 'sexual slavery', prostitutes being 'owned' by clients, and the 'buying and selling' of people to illustrate her arguments (Dworkin 2004).
Interestingly, while I have yet to read a text written by a sex worker or ally that claims that there is no abuse, violence, or unjust labour practices in the sex industry, there are plenty of radical feminist texts that claim all sex work to be violence, exploitation, and oppression. These claims make the radical feminist literature and absolutist arguments very easy to counter.
80 Other feminist accounts and analyses of prostitution allow for more complex and multifaceted conceptualizations of sex work (O'Connell Davidson 2002). Thanh-
Dam Truong (1990), for example, argues, "while slave labour in prostitution has existed and still exists today, it is not the only source of labour in prostitution"
(Truong 1990, 12). Not surprisingly, a body of feminist literature has developed in opposition to the radical feminist positioning of sex work and the often poorly researched and misleading use of examples and statistics. For example, Ronald
Weitzer (2005a, 2005b) has described considerable theoretical and methodological flaws in radical feminist writing including the tendency to universalize prostitutes' experiences by taking worse case scenarios to be representative of all sex work.
Weitzer argues that within the radical feminist literature on sex work, "Anecdotes are routinely presented as definitive evidence, and counterevidence is completely ignored"
(Weitzer 2005b, 937). Indeed, he asserts, "Radical feminism is the perspective that has done the most to distort our understanding of prostitution, yet it remains quite popular" (Weitzer 2005a, 211, emphasis in original). Similarly, Frances Shaver
(1988), Wendy Chapkis (1997), Julia O'Connell Davidson (1998, 2002), Martha C.
Nussbaum (1999), Marjolein van der Veen (2001), Jane Scoular (2004), Kate
Sutherland (2004), and Teela Sanders (2005) have problematized the radical feminist position and have instead described sex workers as active agents within a nuanced and complex sex industry. Radical feminist research that focuses solely on incidents of victimization tends to overlook many sex workers' everyday experiences of unfair
81 labour practices and economic exploitation in favour of the more extreme and less frequent experiences of violence (Bindman and Doezema 1997).
Notably, many radical feminist research studies have only considered the smallest sector of the sex trade, street-based prostitution, which tends to skew research results17 (Hoigard and Finstad 1986; Farley, Baral, Kiremire, Sizgin 1998; Farley and
Lynne 2004; Lakeman, Lee, and Jay 2004; Parsons 2005,1; Hanger and Maloney
2006, 5). As Weitzer argues, "The irony is that most research has been done on the least prevalent type of prostitution" (Weitzer 2005a, 215, emphasis in original).
Among sex work researchers, it is widely accepted that between eighty per cent and ninety per cent of sex work takes places indoors where there is often less exposure to violence (Shaver 1993; Weitzer 2005a, 214; Hanger and Maloney 2006). Even radical feminist Kathleen Barry agrees, "arrest, harassment, and fining of women for visible street prostitution generally takes place while police largely ignore prostitution in brothels, hotels, and clubs" (Barry 1995, 221). Indeed, indoor sex workers in Canada report less fear of harassment, abuse, or arrest than street-based workers (Lewis et al.
2005, 157). The radical feminist choice to focus almost exclusively on street-based work might be attributed to their desire for a coherent argument in favour of prostitution as violence and sexual exploitation. While some studies of street-based work contradict the radical feminist findings, there are a substantial number of studies on indoor sex work that directly oppose the radical feminist positionality and therefore challenge their universalizing conceptualization of the sex industry. By largely
17 For more on research and sex work see Chapter 2. ignoring the majority of the sex industry that occurs indoors, radical feminists are able to turn a blind-eye to the diverse realities of sex work.
Despite critique and research to the contrary, the radical feminist perspective, with its roots in the abolitionist movement, has been able to maintain legitimacy among some Canadian politicians (Hanger and Maloney 2006). As will be discussed in greater detail in Chapter 5, the recent Subcommittee on Solicitation Laws Review presents a prime example of the pervasiveness of the radical feminist agenda. Initially formed out of a recognition that the current Canadian regime of criminalization was ineffective, the Subcommittee's task was to review the Criminal Code "in order to improve the safety of sex-trade workers and communities overall, and to recommend changes that will reduce the exploitation of and violence against sex-trade workers"
(Hanger and Maloney 2006, 2). With its mandate already framed within the radical feminist discourse of exploitation and violence, it is not surprising that feminist organizations that espoused the radical feminist viewpoint were particularly successful in lobbying the members of the Subcommittee to, at least partially, recommend an abolitionist model for policy reform. The Conservative Party Subcommittee member, for example, expressed support for the victimization perspective on sex work, stating,
"the most realistic, compassionate and responsible approach to dealing with prostitution begins by viewing most prostitutes as victims" (Hanger and Maloney
2006, 90). As such, Subcommittee recommendations on how to improve Canada's prohibitionist policy model that criminalizes prostitution typify an abolitionist perspective (Hanger and Maloney 2006, 85-91). Indeed, while there is a large body of
83 research demonstrating the ineffectiveness of and harms caused by Canada's laws
(Canada 1998; Lowman 1998; Lowman 2000, 998; Robertson 2003, 13; Allinott et al.
2004), there is a reluctance on the part of politicians to conceptualize sex work in labour rights discourses (Hanger and Maloney 2006).
Managing the Sex Industry: Legalization and Regulation
The second common perspective or position on conceptualizing the sex industry is legalization, sometimes called regulation (Shaver 1985b, 494). This framework allows for certain forms of sex work to exist as long as the sex industry and its workers abide by specific, often stringent, rules and regulations. In this context, prostitution is simultaneously understood to be a necessary service and a public nuisance (van Doorninck 2002, 194). Unlike abolitionism and prohibitionism where sex work is a social evil that needs to be eradicated completely (either by punishing all parties or just the perpetrators), with legalization and regulation, sex work is a necessary evil that requires rules and regulations to be kept under control (Wijers
2004; Shaver 1985b, 494). In this way, prostitution and sex work are still conceptualized as social problems, but with legalization there is an understanding that prostitution will never 'go away' so it should therefore be regulated to mitigate its
i o most undesirable effects. Nevada, the Netherlands , and Germany are three internationally known examples where sex work is regulated though legalization.
18 For more on the Dutch sex work context see Chapter 4.
84 A theoretical and political perspective that conceptualizes sex work as consensual activity underscores legalization as a policy model. Indeed, in legalized contexts, there is an understanding that sex workers can, in fact, enter the industry and work within it free of coercion (Outshoorn 2001; Wijers 2004; Gregory 2005). In the prohibitionist context, sex workers' decisions to enter the industry are less relevant as the entirety of the industry itself is destructive to the good of society (Weitzer 2006).
In the abolitionist context, sex workers are decidedly victims of male exploitation and violence and therefore decisions to work as prostitutes are made with false consciousness (Farley 1998, 2004). Abolitionists argue against regulated sex work as they see all prostitution to be a violation of human rights (Doezema 1998a).
Conversely, within legalized systems, similar to decriminalized systems as discussed below, sex workers' self-determination and independent willingness to voluntarily enter the sex industry are central factors. Therefore, under legalization and regulation, discussions of prostitution are often underscored by categorizations of 'forced' and
'voluntary' sex work (Gregory 2005, 19-20).
The Dutch legalized sex industry, for example, is dependant upon the forced/voluntary discourse (Outshoorn 2001). While sex work is conceived of as an
"inevitable or even necessary evil that has to be accepted and controlled" (Wijers
2004, n.p.), how to best manage, police, and regulate the industry becomes of central importance. Although it was not legalized until the year 2000, Dutch public and policymakers have been conceiving of prostitution in terms of consent and coercion, or forced and voluntary, since at least 1985 with the introduction of the first in a series
85 of bills to overturn the then ban on brothels (Outshoorn 2004, 188). Alongside and embedded in the Netherlands' conceptualization of forced/voluntary prostitution were concerns about the trafficking of non-European Union sex workers into the industry
(Outshoorn 2004). Indeed, 'forced' sex workers were primarily understood to be victims of trafficking whereas 'voluntary' sex workers were Dutch citizens (van
Doorninck 2002). Discourses on trafficking have played an important role in the formation of Dutch prostitution policies and conceptualizations of sex work.
According to Bandana Pattanaik (2002), the term 'trafficking' became popularized during the late nineteenth and early twentieth century 'white slavery panic' and the cross-border movement of white women for 'immoral purposes' and prostitution19 (Pattanaik 2002, 217). At the time, trafficking discourses and anxieties over women's migration caused "suspicion among middle-class and elites, reinforcing ideologies about the entrapment and enslavement of, particularly, white, Western
European, and North American women into prostitution" (Kempadoo 2005, x).
Contemporary historians have argued that definitions of 'white slavery' were often confused and conflated with instances where women migrated or worked in the sex industry of their own accord (Rosen 1982, 113). The panic over trafficking lead the
United Nations to create the 1949 Convention for the Suppression of Trafficking in
Persons and of the Exploitation of the Prostitution of Others (Kempadoo 2005, xi;
Pattanaik 2002, 217-218). Within an abolitionist framework, and in order to protect
19 While the term became popularized during the white slavery panic, Jo Doezema (1998) writes of the "image of the 'trafficking' victim" as a "figment of neo-Victorian imaginations" and therefore originating in the late eighteenth century (Doezema 1998, 44).
86 vulnerable women and children, the 1949 Convention articulated, "prostitution and ... trafficking in persons for the purposes of prostitution are incompatible with the dignity and worth of the human person..." (Doezema 1998a, 38). At the time, sex work was not conceptualized within the forced/voluntary dichotomy and instead all prostitution- related activities were analogized and equated to trafficking. Following the ratification of the 1949 Convention, international debates on prostitution and trafficking largely subsided (Kempadoo 2005, xi).
By the mid-1970s, a growth in transnational migration and international tourism (Truong 1990) as well as a "growing prosperity and liberalization of... sexual mores" (Outshoorn 2005, 142) instigated an increase in international attention on prostitution, trafficking, and sex tourism. Within a decade, in the mid-1980s, new international feminist campaigns began to ideologically split from previous abolitionist and anti-trafficking discourses to instead conceptualize the sex industry in terms of consent and coercion (Doezema 1998a, 37; Murray 1998, 51- 53). Around the same time, sex workers in many parts of the world began organizing in support of their rights and against campaigns that tended to homogenize all sex workers as victims of trafficking (Pattanaik 2002, 218). Where once trafficking referred to the movement and migration of primarily white women, anti-trafficking campaigns over the last thirty years have focused on the "exploitation of Third World women forced into the sex industry in Europe" (Gregory 2005, 20). Indeed, there has been a shift in focus from the racialized dynamics of the white slavery discourse (the young, white, innocent female) to the more recent racialized dynamics of the trafficking discourse
87 (the poor, dark-skinned, Majority World, uneducated female) (Sutherland 2004, 160-
161; Kempadoo 2004, 258-259). As Jo Doezema (1998) asserts, "In the modern myth, the racism has changed focus: 'passive,' unemancipated women from the developing world are the new sex slaves" (Doezema 1998a, 44). Both the late nineteenth century white slavery discourse and the more recent trafficking discourse have been clearly underscored with racist, sexist, and colonialist stereotypes and imagery.
In an international policy context, the forced/voluntary sex work dichotomy has largely replaced earlier abolitionist models of reform (Doezema 1998a, 46). The first time that the new language of forced and voluntary sex work was officially entrenched in an international United Nations document was in 1993 with the
Declaration on the Elimination of Violence Against Women (Doezema 1998a, 40). It states, "Violence against women shall be understood to encompass, but not be limited to, the following: Physical, sexual and psychological violence... trafficking in women and forced prostitution" (Doezema 1998a, 40). The inclusion of the term 'forced' before prostitution marks a significant shift in understandings of the sex industry and women's ability to choose to enter in to it, much to the chagrin of radical feminists.
Despite the significance of this shift, the United Nations did not integrate the ideological change into other documents and therefore did not create a coordinated stance on prostitution policy (Doezema 1998a, 41).
Contemporary sex work researchers Kamala Kempadoo (1998, 2004, 2005),
Noulmook Sutdhibhaslip (2002), Susanne Thorbek (2002), Jyoti Sanghera (2005),
Joyce Outshoorn (2005), Melissa Ditmore (2005), and Laura Maria Agustin (2005,
88 2007) trouble poplar conceptions and understandings of trafficking. They present compelling arguments and case studies that demonstrate that much of this pervasive discourse is constructed through media and public policy. Jyoti Sanghera, for example, argues that dominant understandings of trafficking are based on a series of myths that result in misguided and poorly planned policy interventions and agreements (Sanghera
2005, 3). Denying neither the existence of trafficking nor its importance as a global phenomenon, Sanghera articulates that these myths lead to conclusions not based on evidence that have long lasting and far reaching consequences. Similarly, Melissa
Ditmore critiques the trafficking discourse for its equation with prostitution, which, she argues, does a disservice to the diverse realities of individuals trafficked into a variety of industries as well as to individuals who migrate to improve their life circumstances (Ditmore 2005). Ditmore further argues that the trafficking discourse is a gendered one; where trafficking is largely about innocent female victims who have been coerced into prostitution against their will by male traffickers, smuggling is largely about men guilty of committing the crime of paying a third party for assistance in entering another country (Ditmore 2005,109). Therefore, in this context, it is only men who possess agency.
Similar to Ditmore's assertion that the trafficking discourse is embedded with assumptions of guilt and innocence, Doezema argues that the forced/voluntary dichotomy problematically situates sex workers into one of two categories; women who voluntarily enter the sex industry are positioned as guilty whereas those who are forced are innocent (Doezema 1998a, 42-43). The guilty vs. innocent distinction is
89 apparent in non-governmental organization (NGO) and media reports and publications on both prostitution and trafficking. As Doezema asserts:
In reports on trafficking, it is often stressed that the women did not 'choose' to be prostitutes. Emotive words like 'duped', 'tricked', or 'lured', are used time and time again to show that the women involved did not know what they were letting themselves in for. (Doezema 1998a, 43)
The language used in such reports and publications has been adopted from the radical feminist and abolitionist conceptualization of prostitutes as innocent victims and prostitution as sexual exploitation. The forced/voluntary, innocent/guilty, and trafficked/smuggled dichotomies overlap and situate sex workers in many international contexts in increasingly precarious and vulnerable positions if found to be 'voluntarily' working.
While the legalized context differs from the abolitionist context in that voluntary sex work is understood to be possible, sex workers still face social stigma and discrimination in addition to overly punitive state regulations. This stigma and discrimination is largely due to problematic assumptions and dichotomies that liken prostitution to a necessary evil in need of management and control (Self 2004; van
Doorninck 2002). Methods of control such as mandatory licensing and registration, forced medical examinations, regulated brothels, 'red light' zones, and regulations on the nationality of sex workers are common under legalization (Shaver 1985b). Scibelli defines the state regulation or legalization of sex work as a context in which:
... prostitution is allowed but limited. Prostitution may be restricted by zoning or licensing. Zoning confines prostitution to certain areas or brothels; a licensing system may limit the number of prostitution and/or regulate their
90 activities. Regulatory regimes may recognize that prostitution may have some value to society. (Scibelli 1987,117-118)
Additionally, the government can impose strict fines and other penalties on those in violation (Wijers 2004). Since prostitution is regulated as labour but simultaneously stigmatized as a social problem, many sex workers want to remain anonymous for fear of social, economic, or familial reprisals (Wijers 2004; Self 2004). Anonymity can be impossible in a legalized system where licences are mandatory and often kept on public record (Farley 2004,1094). Regulations that are unnecessarily stringent can encourage sex workers to work in underground, illegal and often dangerous areas out of state view (De Rode Draad n.d. b; Norway 2004, 30-1). Illegal sex workers in legalized systems can "remain as exploited as prostitutes in criminalize regimes"
(Scibelli 1987, 118). Additionally, regulations can give excessive control to brothel owners, escort agency managers, and other employers of sex workers who can then make it difficult to organize for improved labour rights and protections (Wijers 2004;
De Rode Draad n.d. a). In Nevada, for example, each county can impose local restrictions on prostitution in addition to the state laws (Albert 2001; Chapkis 1997,
162-164). Some counties only allow brothel sex workers to leave the premises during daylight hours, others require prostitutes to have escorts when in town shopping, and still others only allow sex workers to leave brothel grounds on Sundays (Scibelli 1987,
145). While a number of Nevada counties have banned brothels outright others have instituted lengthy ordinances (48 pages in Lyon County) or extremely high licensing fees ($25,000 per quarter in Storey County) (Albert 2001, 44-5).
91 Due to these and other restrictions and regulations associated with legalized sex work, many sex workers advocate against it (Chapkis 1997,155; SPOC n.d.). The
Sex Professionals of Canada (SPOC), for example, argues that prostitutes should not be forced to work in specially designated areas nor should they have to undergo mandatory medical examinations (SPOC n.d.). They further state that they would choose to work in illegal ways within a regulated system instead of registering with the police as they "refuse outright to participate in any kind of government legalization schemes" (SPOC n.d., n.p.). Instead, members of SPOC advocate that international policies should follow models of decriminalization for the establishment of labour rights in the sex industry.
Legitimating Sex Work and Establishing Rights: Decriminalization and Deregulation
The third political and theoretical position on sex work is decriminalization, sometimes called deregulation. Discussions of prostitution policy can frequently confuse or conflate decriminalization and legalization (Thukral et al. 2005; Wijers
2004; De Rode Draad n.d. a; SPOC n.d.). It is not uncommon for people to misunderstand the key political and ideological differences between the two frameworks. As SPOC argues:
Many ordinary Canadians have their hearts in the right place, and will say things like, 'There is nothing wrong with prostitution, they should legalize it...' Unfortunately this majority of Canadians do not have access to the real info regarding decriminalization... And who can blame them for thinking this way? (SPOC n.d., n.p.)
92 Indeed, sometimes the term decriminalization is improperly used to describe any situation in which prostitution is not completely criminalized (McElroy 2007).
Both legalization and decriminalization see prostitution as inevitable (Farley
2004, 1088), yet there are key ideological differences in their social, political, and moral conceptualization of the sex industry. With decriminalization, sex work is seen as viable work that is entitled to labour protections and industry guidelines commensurate to other similar industries (PRA 2003). Legalization, while similarly seeing sex work as a potential job that requires protections and guidelines, also locates sex work as an unfortunate aspect of society that should be controlled and policed to the greatest extent possible (Davis and Shaffer 2004; Wijers 2004; van Doorninck
2002). Effectively, decriminalization refers to a policy framework where all prostitution-related offences are removed from the state's Criminal or Penal Code and sex work is understood to be a legitimate form of labour (SPOC n.d.). Unlike legalization, where strict state laws attempt to manage and control the sex industry, with decriminalization, prostitutes are liable to arrest but only under other criminalized areas, just as for any other citizen. Sex workers would be both protected by the
Criminal Code and subject to it in all work related, private, and public activities.
Prohibitionist and abolitionist discourses and policy models to eradicate prostitution gained fairly widespread prevalence in nineteenth and early twentieth century social movements. More recently, conceptualizations of sex work as sexual labour have been developing, largely by sex workers themselves. These conceptualizations position the commercial sexual exchange in work and labour-based
93 discourses and advocate for the decriminalization of the sex industry. While Karl
Marx (1844) analogized prostitution to labour in his early twentieth century writing, the conceptualization of sex as work, or sexual labour, did not gain popular currency until much more recently. Marx's oft cited phrase reads, "prostitution is only a specific expression of the general prostitution of the labourer" (Marx 1844,1959, v, footnote, emphasis in original; Pateman 1988, 201; Sloan and Wahab 2000,462; van der Veen
2001, 31; Agustin 2007, 58). Indeed, while Marx saw prostitution, along with other forms of labour, as inherently problematic, his conceptualization of prostitution as labour has been an important contribution to the ways in which prostitution is currently theorized.
Farley argues that the more widespread positioning of prostitution as
"legitimate service work" can be attributed to the sex worker's rights organization
COYOTE (Call Off Your Old Tired Ethics) in San Francisco, 1973 (Farley 2004,
1089). A new and growing discourse was beginning to form at the time from prostitutes and allies, one in which prostitution was re-framed as legitimate labour
(Chapkis 1997, 70; Sloan and Wahab 2000, 466-467; Bruckert, Parent, and Robitaille
2003, 2). Indeed, Lacey Sloan and Stephanie Wahab (2000) argue that the new sex workers' rights movement was founded on three basic tenets: first, that women can choose to enter into sex work; second, that sex work is legitimate work; and third, that women's civil right to be a sex work should not be violated (Sloan and Wahab 2000,
467).
As international attention on prostitution, trafficking, and sex tourism
94 increased through the late 1970s and into the 1980s (Doezema 1998a; Murray 1998), so too did sex worker organizing against feminist, abolitionist, and prohibitionist campaigns that largely defined them as victims (Pattanaik 2002). As Doezema asserts,
"Prostitution as a matter ofpersonal choice and form of work is a concept developed by sex workers that radically contradicts both the regulationist and abolitionist
20 versions of prostitute reality" (Doezema 1998a, 38, emphasis in original).
Simultaneous to the increase in international media attention on sex work was an increase in the diversification and expansion of sex industry jobs: Demand for sex led to a proliferation of new forms of sexual services, such as escort services, telephone sex, and peep shows, as well as the expansion of more traditional types of prostitution, such as street walking and room-renting in cheap hotels. (Outshoorn 2005, 193)
According to sex worker activist Carol Leigh (2004), also known as Scarlot Harlot, it was at a Women Against Violence in Pornography conference in 1978 that she coined the term 'sex work' to better describe the diversity of labour performed within the industry (Leigh 2004, 66-69).
Sometimes referred to as the 'sex wars,' the 1980s saw heated feminist debates on sexuality, lesbianism, abortion, sadomasochism, transsexuality, prostitution, and pornography (Vance 1984; Duggan and Hunter 1995; Sloan and Wahab 2000). Some of these debates were fought internally among different feminist factions (for example debates on race, gender, and sexuality), while others were fought primarily with the
20 Regulationists, according to Doezema, advocate for increased state control to manage the sex industry and conceptualize the prostitute as a 'fallen woman,' whereas the abolitionists position the prostitute as a victim who lacks agency (Doezema 1998, 38).
95 system (namely legal battles over sexual assault laws, birth control, and gay marriage)
(Duggan and Hunter 1995). Arguably, the most passionate and polarizing debates, which lead to many deep political and theoretical divisions still felt among feminists, were on prostitution and pornography (Burstyn 1985; Vance 1984; Chapkis 1997).
Legally and socially positioned as victims lacking agency by radical feminists, sex workers began organizing events, demonstrations, and conventions to both challenge the negative images and stereotypes and to mobilize for legislative and policy changes including decriminalization (Pheterson 1989; Outshoorn 2005, 143 - 144). Such large- scale events and conventions included 'Hookers Masquerade Balls' in San Francisco, drawing 20,000 supporters, and the First and Second World Whores' Congresses held in 1985 and 1986 respectively (Pheterson 1989). In the spirit of solidarity, other groups of feminists who rejected the radical feminist framing of women's sexuality and positioning of prostitution attempted to build bridges between themselves and sex workers by jointly coordinating events and conferences and by writing in support of sex workers' rights (Bell 1987; Burstyn 1985; Snitow et al. 1983). Indeed, interesting coalitions formed between sex workers and "those who similarly oppose [d] dominant notions of appropriate sexual behaviour," particularly those "engaging in sexual activity outside the legitimated boundaries of married, heterosexual monogamy..."
(Scoular 2004, 347).
Through the 1980s and 1990s there was a growth in literature and activism by sex workers who called themselves feminists as well as feminists who called themselves sex worker allies (Delacoste and Alexander 1988; Shaver 1988; Pheterson
96 1989; Bell 1987; Queen 1997; Bell 1994; Nagle 1997; Chapkis 1997; O'Connell
Davidson 1998; Nestle 1998; Leigh 2004). This new framework was commonly called
'pro-sex,' 'sex radical,' or 'sex positive' feminism (Bernstein 2007,11; Sutherland
2004; Bell 1994; O'Neill 2001, 16; Chapkis 1997, 12). Often within this literature, and often as a focus of their activism, sex workers and sex positive feminists advocated an understanding of sex work as a job that one has a right to choose (Delacoste and
Alexander 1988; Jenness 1993; Kempadoo 1998; Kempadoo 2004; Self 2004). Indeed, sex positive feminists and sex workers were jointly arguing:
Women have the right to sexual self-determination and to work as a prostitute. She should be able to work in decent labor conditions and migrate to do sex work elsewhere. Stigmatization of prostitutes... should be combated. Prostitution itself is therefore not the problem, but the context within which women engage in prostitution - such as forced prostitution and trafficking, as well as the often bad conditions under which the work is done - is problematic. (Outshoorn 2005, 145)
Similarly, Elizabeth Bernstein (2007) contends that writing from sex positive perspectives "sought to reconstrue sex work as a form of labor that was primarily distinguishable from other varieties of low-status employment by virtue of its better pay" (Bernstein 2007, 11). The sex positive feminist position further argues that those who were working within the sex industry deserved the "same human rights and civil liberties as other workers" (O'Neill 2001, 19). Within this political and theoretical framework, decriminalization was advocated as the best policy position to support sex workers' rights.
21 For a thorough discussion of the key differences between radical feminism and sex radical feminism as well as the diversity of perspectives within sex radical feminism see Wendy Chapkis' Live Sex Acts: Women Performing Erotic Labour. New York: Routledge. 1997.
97 Decriminalization and a labour-based conceptualization of sex work support the argument that sex workers should enjoy the same work place standards and benefits-as all workers under labour law (Allinott et al. 2004). As Jo Bindman (1998) argues, "An employment or labor perspective, designating prostitution as sex work, can bring this work into the mainstream debate on human, women's and workers' rights" (Bindman 1998, 65-66). Indeed, with decriminalization, and the removal of prostitution-related offences from the Criminal Code, sex workers' workplaces and labour conditions can be regulated to the same extent as other similar forms of labour under federal and provincial laws. Likewise, with decriminalization, harms or grievances faced by sex workers can be judged under different Criminal Code sections. For example, there are already provisions that protect the public from extortion, sexual assault, forcible confinement, threat with a weapon, public disturbances, and causing a nuisance. Further, any business causing a public disturbance or engaging in illegal activities can face fines and closure. Indeed, in decriminalized systems, brothels are subject to rules, regulations, and standards as are all businesses (PRA 2003). Street solicitation, as with other public activities, can be subject to nuisance, loitering, littering, and trespassing charges where appropriate.
Further, sex workers can be eligible for worker's compensation, health and disability insurance, statutory holidays, and would pay income tax (PRA 2003). Effectively, with decriminalization, sex workers are bound to the same workplace regulations, including health and safety standards, as all other workers and are able to organize unions, guilds, and associations to protect their labour rights.
98 As a particular policy framework, decriminalization and labour legitimacy for sex workers means that they can work without the threat of criminal charges or police harassment (PRA 2003). As Scibelli argues:
Decriminalization [is] necessary to give prostitutes control over their lives. Without fear of criminal sanction or public reprisal, prostitutes can organize to demand police protection and to control their own working conditions. (Scibelli 1987, 117)
Further, since licences are not made mandatory, sex workers can work collectively for increase solidarity and protection (PRA 2003). Indeed, sex workers can maintain their anonymity and can enter or exit the industry over different periods of their lives, as they choose to or need to, without state intervention or documentation. Essentially, decriminalization recognizes sex work as a work-related activity that many people, primarily women, rely on for economic survival.
New Zealand is currently the only country that fully supports this particular policy approach (PRA 2003). Prior to the 2003,
sex work in New Zealand was criminalized and sex workers were subject to a variety of fines and prison sentences for activities such as keeping a brothel or living on the earnings of a prostitute (NZPC n.d.). All adult consentual sex work was decriminalized on June 25, 2003 when the
New Zealand parliament passed the Prostitution Reform Act (PRA). Since then, the country's sex industry has operated under similar health and safety rules as other New
Zealand industries. The most impressive aspects of New Zealand's prostitution policies are the built-in protections that clearly illustrate the priority of sex workers 22 For more information on prostitution policies in New Zealand see Chapter 4.
99 labour rights; not surprising as sex workers and allies participated in the creation of industry guidelines (OSHS 2004; PRA 2003, NZPC n.d.). For example, the PRA empowers small groups of sex workers to work from their own homes rather than for a boss or manager (PRA 2003). These and other provisions in the PRA clearly demonstrate the country's conceptualization of prostitution as sexual labour.
From a political and theoretical position in which prostitution represents violence against women, it is not surprising that radical feminists would argue against the New Zealand context as well as decriminalization more generally. Melissa Farley
(2004), for example, argues, "When prostitution is understood as violence... unionizing prostituted women makes as little sense as unionizing battered women"
(Farley 2004, 1089). When prostitution is one's job, however, unionization and labour legitimacy are important in gaining fair workplace standards and guidelines. Shifting the theoretical and political position on sex work from abolitionism, prohibitionism, or legalization to the labour-based framework of decriminalization has been a central project of the international sex workers' rights movement over the past thirty years
(Pheterson 1989; Delacoste and Alexander 1998; Leigh 2004).
Conclusion
This policy review demonstrates, as Jane Scoular (2004) articulates, "there are limitations in viewing prostitution as straightforwardly paradigmatic, given the contingencies and diversity of the structures under which its [sic] materializes"
100 (Scoular 2004, 343). The myriad political positions, policy frameworks, feminist articulations, and histories of sex work make it a particularly contentious topic of discussion, debate, and research. Nevertheless, this dissertation argues, in solidarity with the international sex workers' rights movement, for the conceptualization of sex work as a legitimate form of labour. Further, this dissertation agrees with Chapkis and argues that sex work is "neither inherently empowering or oppressive but a contested terrain in which women must organize and demand their rights" (Chapkis 1997, 12).
To recognize sex work as a category of sexual labour denotes an important linguistic, ideological, and political shift away from abolitionist and radical feminist conceptualizations of sex work as sexual slavery (Barry 1979), the manifestation of misogyny (Rich 1983), or as sexual harassment and rape (Farley 2007; Dworkin
1981). It is also a shift away from regulationist conceptualizations of sex work as a necessary evil (Backhouse 1991; Wijers 2004) or in relation to the forced/voluntary dichotomy (van Doorninck 2002; Gregory 2005). The basis of similarly between radical feminists and those who critique them is the focus on the betterment of sex workers' lives. Exactly how and if the state should achieve this common goal is the point of contention. The radical feminist philosophical conceptualization of sex work as exploitation lends itself to a political position that advocates for state supported abolitionism. The method of abolishment is one in which women, as the victims, should not be punished. Indeed, this feminist policy position is against full criminalization, or prohibitionism, as it further punishes the victims.
101 The hesitation from many politicians and feminists to advocate for sex worker's labour legitimacy and decriminalization points to an unwillingness to accept the discussion that has developed from sex workers themselves, one which looks at sex work as a job rather than a form of violence or something that needs to be managed and controlled (Bruckert and Parent 2005, 95; Bell 1994; Leigh 1997, 230).
Defining sex workers as victims or as necessary but undesirable makes it possible to dismiss sex workers' experiential knowledge gained through working in the sex industry. The labour-based positioning of sex work, as work, and advocacy of decriminalization locates sex workers as deserving of full labour rights as well as actors and agent in their lives and work (PRA 2003; SPOC n.d.). While many sex workers' rights organizations advocate an understanding of sex work as a form of labour and a framing of sex work issues within health, human, and labour rights discourses (SPOC n.d.), radical feminist conceptualization of sex work and abolitionist agendas have been much more successful in influencing international policy decisions
(Sutherland 2004).
The following chapters challenge the radical feminist position on sex work and demonstrate instead that sex workers are deserving of industry-wide standards, health and safety guidelines, and the ability to organize unions, guilds, and associations. By drawing on the international policy examples of Sweden, the Netherlands, New
Zealand, and Canada as well as interviews with Toronto-based sex worker activists, labour organizers, and allies, this dissertation makes the case that labour legitimacy and social change are necessary to improve sex workers' working conditions. Indeed,
102 as Chapkis has argued, "... what makes prostitution abusive in some but not all instances is a question of the conditions under which the work takes place (the relations of production) rather than the conditions under which the sex takes place (for love, money, or pleasure)" (Chapkis 1997, 131, emphasis in original).
103 Chapter 4
International Approaches to the Regulation of Sex Work: Lessons Learned from Sweden, the Netherlands, and New Zealand
There is a constant interlay between current concept and current practice. They become casually interactive —practice rewrites conceptual construct; conceptual construct limits and shapes practice. ..our conception of an ideal is largely a reflection of current practice... that is, a response to the known.
Lenore Kuo {Prostitution Policy: Revolutionizing Practice Through a Gendered Perspective. New York: New York University Press, 2002. 34.)
In order to better understand the impact of different regulatory approaches as well as the ways in which conceptualizations of sex work influence policy formation and decisions, this chapter takes a close look at three distinct and divergent international examples whose legislative models were built on the theoretical positions outlined in the previous chapter. In an international context, policies regulating sex work vary widely from one jurisdiction to the next, ranging from complete criminalization to full decriminalization. England, for example, allows for an individual prostitute to work from home but not on the street (Devadasi 2006). In the
United States, Nevada has heavily regulated legal brothels in designated areas, generally outside city limits (Albert 2001). The Australian province of New South
104 Wales moved towards a model of decriminalization for sex work policy (OSHS 2004).
Conversely, in South Africa the sex industry is criminalized and sex workers are routinely charged under nuisance and loitering bylaws (Rotmann 2006). Roughly a decade ago, Taiwan voted to ban its once legal sex industry forcing licensed sex workers to change profession or risk arrest (Wang and Wang 2006). While some of these countries have actively consulted sex workers in policy formation, others have not.
By focusing on specific international case studies, Sweden, the Netherlands, and New Zealand, it is possible to explicate the relationships between the three common theoretical and philosophical approaches to sex work to see how they inform, and are informed by, the legal and policy frameworks that countries adopt. Indeed, it is important to understand the differences between these approaches and the consequences of these differences. Supporting a radical feminist and abolitionist perspective, Sweden criminalizes the purchasing of sexual services (clients) but not the selling (sex workers) (Svanstrom 2004; Ekberg 2004; Gould 2005). In the
Netherlands, the legalized system that was built upon the forced/voluntary discourse contributes to a social context in which sex workers are made to abide by stringent rules and regulations (Svanstrom 2004; Ekberg 2004; Gould 2005). And the New
Zealand case study demonstrates how the conceptualization of prostitution as sexual labour contributed to the successful decriminalized of the sex industry where sex workers actively participated in the creation of health and safety guidelines (NZPC n.d.; Weatherall and Priestley 2001; PRA 2003). An exploration of these international
105 examples contributes to a greater understanding and knowledge of the effectiveness of different types of policies and therefore allows me to put forth recommendations on how Canadian policy might develop.
This chapter is divided into three country specific case studies. Each includes a discussion of how the regulatory frameworks came to be legislated in that context and pays particular attention to the role of sex workers, sex workers rights' advocates, and feminists in the policy formation process. Each of the country specific sections will begin with an introduction to the legislation making processes and key parliamentary debates leading to the enactment of the country's current policy. It is both politically and pedagogically important to understand the process by which policy is created and implemented in order to be able to effectively participate in its development and change. Additionally, the country's current framework for the regulation of sex work will be explicated along with an overview of the debates on the successes and failures of that particular system.
Abolitionism: Sweden's Radical Feminist Stance
Since at least the early 1980s, Swedish feminists have almost unanimously advocated that all prostitution is violence against women and that laws should focus on the criminalization of clients (Svanstrom 2004, 225; Gould 2005, 212). In 1999, their goals were achieved. Over a twenty-year period, with only minor opposition, the government voted to criminalize the purchasing of sexual services (Svanstrom 2004).
106 This section will briefly outline the major changes to Swedish sex work policy from
1980 to 1999. This case study demonstrates a radical feminist framework that was not developed in consultation with sex working communities and instead is saturated with an understanding that all sex work is exploitative and should be abolished.
Key Policy Developments and Parliamentary Debates
Every four years Swedish citizens vote23 for whom they want to represent them in the parliament, in their county, and in their municipality (GOS n.d. c). These three elections represent the three levels of government, namely the national, the regional, and the local. The Swedish parliament, the country's highest elected decision-making body - the Riksdag24 - is voted by proportional representation (GOS n.d. f). The political party, or group of parties, that wins the most votes to the Riksdag become the
Swedish government (GOS n.d. f). Coalition governments are the norm as Sweden is a multi-party system. The 349 members of the Riksdag are responsible for making legislative decisions on the approximately 200 proposals, generally bills, put forward annually25 (GOS n.d. b; GOS n.d. f). When the Swedish government is planning to propose a new bill it will usually first assess public opinion through an independent
Commission, which can either consist of a group of public officials and experts or it
23 According to government statistics, there are currently approximately 6.7 million people eligible to vote in Sweden (GOS n.d. c). 24 Riksdag homepage here: http://www.riksdagen.se/default_56.aspx. Riksdag can be translated into English as "national day" (riks means "national" and dag means "day"). 25 Bills can consist of detailed proposed legislation, more simple proposals on changes to existing policies, or proposed guidelines for policies.
107 can be a smaller one-person inquiry (GOS n.d. b). The Commission is responsible for analyzing and evaluating the topic as well as producing a final report with conclusions
26 and recommendations. Before the government adopts the Commission's report and supports its recommendations, it first hands the report to external agencies, public interest groups, and others who will be directly affected by the proposed legislation27
(GOS n.d. b). After the external bodies have responded to the report and have submitted comments, a specific ministry28 will be responsible for drafting the bill and bringing it forward to the Riksdag who will in turn give it to an internal parliamentary committee for revie w29 (GOS n.d. b). Once the parliamentary committee has completed its internal deliberation, it submits its own report, with the original bill, to the Riksdag for a vote (GOS n.d. f). If the majority of the Riksdag approve the bill, it becomes law.
26 Final reports, published as part of the Swedish Government Official Reports series (Statens Offentliga Utredningar, SOU), are unfortunately not translated into English. http://www.sou.gov.se/ 27 It is at this point that the public can make interventions and the government is able to more fully assess public support and opinion. 28 The Ministry responsible for drafting the legislation will be the one most closely associated to it. For example, the Ministry of Labour would draft an amendment to legislation on labour protections. The Ministry of Justice and the Ministry of Integration and Gender Equality are responsible for areas including prostitution and trafficking. 29 Each parliamentary committee has representation from all political parties currently in the Riksdag. Any individual member of the parliament is empowered to put forward a counter- proposal, or private members motion, on government proposed bills (GOS n.d. b). If the Riksdag formally adopts the counter-proposal or motion the government has to amend its proposed bill accordingly. 30 There must be a majority of Riksdag members present to vote for a bill in order for it to pass and all votes are open to the public (GOS n.d. f). 31 All laws are published with the Swedish Code of Statutes (Svensk forfattningssamling, SFS) in Swedish only. They are available on the Riksdag website: http://www.riksdagen.se/default_56.aspx. Some government agencies and ministries have
108 According to Swedish feminist Gunilla Ekberg (2004), the women's movement of the early 1980s was unsatisfied with the then current system regulating sex work and began advocating for change (Ekberg 2004,1191). With a radical feminist conceptualization of sex work, Swedish feminists began to lobby the government to review and transform prostitution policy. Yvonne Svanstrom (2004) similarly contends that Swedish women's organizations in the early 1980s joined forces to demand a government examination of prostitution (Svanstrom 2004, 227). In response, the government initiated a Commission to investigate aspects of the country's sex industry (Gould 2002, 202; Svanstrom 2004, 227). In 1982, the
Commission's final report found that the prostitution was not a so-called 'woman question' or question of 'gender equality' but instead it was a question of 'human dignity' (Svanstrom 2004, 227). It was the results from this official investigation into prostitution that lead to the creation of laws that banned all public pornographic shows. In effect, this first major Commission on sex work brought to the policy arena the conception that prostitution was about the commercialization of women's bodies under patriarchy (Svanstrom 2004, 230). Over the next decade and into the early
1990s, roughly 30 bills were introduced to the Riksdag advocating that only the client should be criminalized in the sex transaction (Svanstrom 2004, 233). The common argument was that prostitution signifies female oppression and men's power over women and therefore prostitutes should not be punished under the law (Ekberg 2004;
translated various statues into English that can be found here: http ://www. sweden. gov. se/sb/d/3288
109 Svanstrom 2004, 227). Prostitution, it was understood, was not about women's sexuality, emancipation, or work; prostitutes were decidedly victims and should be treated as such.
In 1993, a second Swedish Commission was coordinated to re-investigate the county's sex industry. It was argued that during the decade since the 1982
Commission, the face and nature of the industry had changed and so a new
Commission was necessary (Gould 2002, 202). Both men and women from a variety of backgrounds (public and civil servants, police officers, administrators, social workers and more) were invited to join the Commission that was to be chaired by the then Minister of Justice (Gould 2002, 202). The final report, published two years later in 1995, recommended criminalizing both the seller (prostitute) and the purchaser
(client) of sexual services (Gould 2002, 202; Svanstrom 2004, 234). Public and political response to the report varied. Many disagreed with the report's recommendations to fully criminalize the sex industry on the grounds that prohibition would penalize the victim in the sex transaction, the prostitute (Svanstrom 2004, 234).
The police and courts also argued against the basic practicality of the recommendations (Gould 2002, 203). Others concurred, including both the
Conservative and Liberal Parties who argued that prohibition would only push the sex industry further underground (Gould 2002, 203). Some Swedish feminist politicians, including the women's organization of the Liberal, Democratic, and Center parties were in partial agreement with the Commission's report (Svanstrom 2004, 235). They contended that the way to abolish the sex industry, prostitution in particular, was
110 through partial criminalization or abolitionism, not full prohibition as recommended.
They argued that only the purchasers of sexual services should be penalized (Gould
2002, 203; Svanstrom 2004, 235).
Following the lead of a number of proposed bills from various political parties and in response to the growing public support of criminalizing clients, in 1998 the then
Minister of Gender Equality and the then Prime Minister introduced a 'Violence
Against Women Act' that included sanctions against the purchasers of sexual services32 (Svanstrom 2004, 235, 239; Bernstein 2007, 148). While there was some debate in parliament, the Moderates and Liberals were against the proposal and the
Christian Democrats wanted full prohibitionism, the proposed abolitionist bill to criminalize only the 'purchasing of sexual services' was approved by the Riksdag by a wide majority and came into effect on January 1st 1999 (Gould 2002, 203; Svanstrom
2004, 241). The Christian Democrats abstained from voting while the majority who voted against the bill were from the Moderate and Liberal Parties. Total numbers were
181 for, 92 against, and 63 absent (Svanstrom 2004, 240-1). The bill dictated:
A person who obtains casual sexual relations in exchange for payment shall be sentenced.. .for the purchase of sexual services to a fine or imprisonment for at most six months. (Ekberg 2004, 1192)
32 Also included in the Violence Against Women Act were provisions that "widened the definition of rape to include other acts in addition to sexual intercourse, increased social services for victims of domestic abuse, and stiffened penalties against genital cutting and sexual harassment" (Bernstein 2007: 148).
Ill The newly approved legislation was added to Chapters 6 and 23 of the Swedish Penal
Code. Tellingly, Chapter 6 outlines the rules and regulations regarding sexual assault, sexual coercion, child sexual abuse, incest, child pornography, procuring, and now, the purchasing of sexual services (MoJ-S 1999). The new legislation included two key provisions: first, that the person who sells the sexual service should not be punished; second, it toughened the laws surrounding procurement directed at managers, landlords, and others profiting off the selling of sexual services34 (MoJ-S
1999).
In theory, this legislation would target the clients and pimps and not the workers. In actuality, it is not that simple. For example, the procurement laws made it difficult for sex workers to obtain and maintain housing:
... sexworkers [sic] are forced to lie in order to rent premises, or alternatively they have to pay exorbitant rent. Either way, they constantly worry about being discovered. They also report often having to move (when discovered) and being treated badly by landlords... This law also makes it difficult for sexworkers to cohabit with a partner since it is illegal to receive any of a sexworker's income. (Ostergren 2004, n.p.)
More recently, in 2005, the Riksdag made further amendments to the sexual crimes sections of the Penal Code to include a number of stiffer penalties and lengthier prison sentences for those in violation (MoJ-S 2005a). The section on the purchasing of sexual services was modified to criminalize instances where a third party purchases
33 Full English text of Chapter 6 of the 1999 Swedish Penal Code can be found online here: http: //www, sweden. gov. se/sb/d/3926/a/47455 34 See Appendix D for Chapter 6, Section 8, of the 1999 Swedish Penal Code. It outlined the provisions for sexual crimes including procuring and financially exploiting a prostitute. 35 See Appendix E for full English text of the 2005 revised Chapter 6 of the Swedish Penal Code.
112 services for another individual. In effect, this made it possible to charge, "a person who takes advantage of a sexual service paid for by another person... for example, in which a business contact provides and pays for prostitutes" (MoJ-S 2005b, 3).
It has since been argued that the perceived threat of foreign-born sex workers,
criminals, and pimps were underlying factors behind the creation and implementation
of the 1999 bill (Gould 2001, 2002; Bernstein 2007,151). Other underlying factors of
support included the public fear of the migration of sex workers from other European
countries to Sweden and anxieties about the nation's entry into the European Union
(Gould 2002). Many Swedes saw it as unacceptable that other EU nations were beginning to legalize and accept sex work as a viable form of labour (Gould 2002,
206-7; Ekberg 2004, 1188). Indeed, six years before the 1999 bill came into effect, the
1993 Commission was already "disturbed by the liberal view on prostitution which was spreading throughout Europe" (Gould 2002, 207).
The changes to Swedish laws were, and continue to be, seen as feminist victories by politicians and women's organizations (Gould 2002, 204; Svanstrom
2004, 241-242; Bernstein 2007, 151). Sweden is the first country to fully support this particular policy framework and credits itself as being a pioneering trendsetter (Gould
2002; Ekberg 2004, 1190). The main instigators and current supporters of the bill can be found in Sweden's well-developed and influential women's movement. Sweden prides itself as being a progressive nation in support of women's rights (Svanstrom
2004; Ekberg 2004). Indeed, there has been a high level of state-wide gender equality
since the 1960s and as such Swedish women, compared to many other nations, have
113 great access to economic, social, and political rights and privileges (Gould 2002, 204-
5). Women make up approximately half of the Riksdag (Kulick 2005, 212) and they have been overwhelmingly successful in gaining national childcare policies, parental leaves, social assistance, and more (GOS n.d. h).
Unlike other countries with active women's movements that have been divided on contentious issues, the feminist movement in Sweden has been remarkably homogenous in its position on the sex industry (Kulick 2005). Gunilla Ekberg, special advisor to the Division for Gender Equality of the Swedish Government, argues that decriminalization and legalization of the sex industry "are seen as some of the most serious present-day threats to gender equality and the rights of women and girls to live lives free of male violence" (Ekberg 2004, 1190). Further, the women's movement has been extremely successful in influencing popular social conceptions of sex work to conform to radical feminist ideologies of prostitution as exploitation (Ekberg 2004;
Kulick 2005, 212). For example, the April 2005 Ministry of Industry, Employment, and Communications own fact sheet on prostitution contains the following opening sentence: "In Sweden, prostitution is regarded as an aspect of male violence against women and children. It is officially acknowledged as a form of exploitation... that constitutes a significant social problem, which is harmful not only to the individual prostituted woman or child, but to society at large" (MIEC 2005, 1).
One dissenting Swedish feminist voice is that of author, women's advocate, and newspaper columnist Petra Ostergren (2004). Ostergren interviewed twenty
Swedish sex workers over an eight-year period, from 1996 to 2004, before, during,
114 and after the abolitionist regulations coming into effect. She found that the majority of the sex workers interviewed saw the new laws as discriminatory and contributing to an increase in violence and stigma towards them:
All sexworkers I have spoken to mention the stigma attached to prostitution where the sexworker is seen as weak, dirty, mentally ill, addicted to drugs and alcohol and viewed as a victim. ... this makes the sexworkers afraid that it will be brought to public attention that they sell sex, so they do all they can to ensure their anonymity. This includes for some women lying to friends, family and neighbours. Several sexworkers say that they feel used by politicians, feminists and the media. They think that sexworkers are only listened to and being paid attention to if they say the correct things, i.e. that they find prostitution appalling, that they are victims, that they have stopped selling sex and will never go back, and that they are grateful to the current prostitution policy and to the policy makers. (Ostergren 2004, n.p.)
Swedish prostitution debates have not included discussions of the possibility of voluntary sex work or prostitutes' agency in decision-making. Instead, Swedes have solely focused on how to best protect the victims of sexual exploitation (prostitutes) from criminal men (clients) (Ekberg 2004). Notions of decriminalization or legalization have not been actively considered (Svanstrom 2004).
Current Sex Work Framework
The first reported effect of the legislation to criminalize only the purchasing of sexual services was an immediate dramatic decrease in the number of prostitutes seen
115 working the streets36 (Kilvington, Day, and Ward 2001, 84, 78; Norway 2004,10;
Ekberg 2004, 1193). A good deal of research, though, has led to conflicting conclusions and recommendations. For example, recent studies have suggested that the decrease in street-based sex work is less the result of legislative changes and due more to a greater ability to make arrangements with clients via cell phones and the internet (RFSU 2003,19, 31; Norway 2004,11; Cederberg 2004, 8). Other studies have suggested that street-based sex work is again on the rise and that it is possible that many of the women who initially left the streets only temporarily worked indoors where there was less visibility and more protection for clients (RFSU 2003). Still other studies have shown that the visible decrease in street-based sex work is due to a shift in the industry to more underground and less safe areas where there is more exposure to violence (Gould 2002, 203; RFSU 2003, 9; Svanstrom 2004, 244).
A 2004 Norwegian government study on prostitution in Sweden and the
Netherlands, titled Purchasing Sexual Services in Sweden and the Netherlands: Legal
Regulation and Experiences, concluded that it has been difficult to discern whether or not there has been a decrease in violence towards sex workers in Sweden since the
1999 passing of the law. Incidents of violence were not systematically reported prior to the legislative changes and so there are no comparative statistics (Norway 2004,
12). And yet, the Norwegian report outlines, "violence is an everyday occurrence for women involved in prostitution [in Sweden], Women tell of violence in the form of
36 Some reports indicate a 90% decrease (Kilvington, Day, and Ward 2001, 84, 78) others claim 50% (Norway 2004, 10), and still others profess a margin of 30%-50% decrease (Ekberg 2004, 1193).
116 major attacks, rape, threats with knives and with being locked up" (Norway 2004,12).
Indeed, one investigator in Malmo concluded, "the situation of prostitutes has deteriorated since the passing of new legislation" (Gould 2002, 203). Despite conflicting reports on the scope and extent of violence it can at least be concluded that the working and living conditions for sex workers has not improved since the 1999 abolitionist policy came into effect.
Both the Norwegian study and individual sex workers have argued that due to the decreased number of clients looking for sexual services (through fear of arrest and clients seeking sexual services in neighbouring countries), those that are left are generally more violent and aggressive towards sex workers (Sambo 2001; Norway
2004, 12-13; Ostergren 2004; Cederberg 2004, 32). The diminishing numbers of clients creates a more competitive market where women need to reduce their rates and are more likely to agree to sex without protection (Ostergren 2004; Cederberg 2004,
32) Women are also forced to make split-second decisions about whether to accept a client's offer, as any conversation in public could lead to his arrest (Norway 2004, 13;
Ostergren 2004). This effectively puts women in the situation of having to protect her client and does not allow her the necessary time to assess the situation and screen her potential client. At the 2001 Taipei Sex Worker Conference, Swedish prostitute
Rosinha Sambo (2001) presented on the situation in her country. She argued that with the new laws, sex workers are forced into the position of acting as protectors of clients
"in order to keep them. She's exposed to all sorts of criminals, psychos, sadists, because she must protect the customer" (Sambo 2001, n.p.). Based on her interviews
117 with sex workers, Petra Ostergren agreed: "it is now harder for them to assess the clients. The clients are more stressed and scared and negotiation outdoors must be done in a more rapid manner. The likelihood of ending up with a dangerous client is thereby greater" (Ostergren 2004, n.p.).
Despite the evidence from both sex workers and research studies, Swedish opinion polls show overwhelming support for the continued criminalization of the purchasing of sexual services and the public largely see it as a move towards increased women's rights. For example, a 2001 poll reported that 70% of the population supported this abolitionist form of criminalization (Gould 2002, 204). Further polls conducted in 1999, 2001, and 2002 demonstrated an approximate 80% approval rating of the sex work legislation (Ekberg 2004, 1204-1205). Swedish supporters argue that the new system has sponsored more collaboration between the police and social services and therefore has led to more sensitive treatment of prostitutes (Kilvington,
Day, and Ward 2001, 85). They also argue that women are more likely to report crimes and assault to police and other authorities and that the legislative changes are in the best interests of sex workers and the abolition of the industry.
Swedish sex worker Isabelle Lunds (2007) reports, "Even though the law supposedly aims at protecting sex workers, it is evident that the main purpose of the law is to protect society from a perceived social ill" (Lunds 2007, n.p.). She further challenges Sweden's nationalist pride of gender equity and questions how this is possible when sex-working women are viewed as victims lacking agency and the ability to make decision on their own behalf. She asks, "How will we ever achieve
118 equality if such prejudice and stereotypes are allowed to persist?" (Lunds 2007, n.p.).
Similarly, Carol Leigh (2004), sex worker and activist, argues against the Swedish
system: "Criminalization of clients adds to the stigma of the work and supports
governmental discrimination against prostitutes... The recent criminalization of clients
(purchasing sexual services) in Sweden has resulted in very few arrests of clients, but a substantial increase in the hardships of Swedish prostitutes" (Leigh 2004, 35).
Swedish sex worker activist Sambo outright dismisses the claim that prostitutes are more likely to call the police when needed, instead, she argues that sex workers are actually less likely to call the police because if fellow workers and clients find out, the sex worker will become stigmatized and clients will be afraid to visit her
(Sambo 2001). Ostergren's research led to a similar conclusion. She states,
"sexworkers are now more apprehensive about seeking help from the police when they have had problems with an abusive customer. They do not want to be forced to report the client" (Ostergren 2004, n.p.). Johannes Eriksson (2007), sex worker activist and member of ROSEA, a Swedish sex worker's rights organizations, argues that the
current system is "not very concerned with sex workers as human beings, but more with abolishing prostitution as an idea" (Eriksson 2007, n.p., emphasis in original).
According to sex work researcher Elizabeth Bernstein (2007), even Swedish police
officials themselves are unhappy with the legislative changes (Bernstein 2007, 151).
Bernstein's research took her to Sweden on a number of occasions between 1995 and
2003, both before and after the passage of the 'Violence Against Women Act'. In her
interviews with police officers she found that they "routinely complained about the
119 difficulties they faced in attempting to arrest clients..." (Bernstein 2007, 151). In reference to one of the illegal massage parlours in Stockholm, one officer went so far as to say, "These it is 'too difficult' to do anything about. It takes too much time, and it requires too much evidence" (Bernstein 2007, 153).
Further, as the Swedish case study shows, when sex workers are excluded from the decision-making and policy development process they feel overlooked and their involvement disregarded. It is difficult to create and implement effective policies in support of sex workers' rights if sex workers have not been actively consulted in the process. Swedish sex workers interviewed by Ostergren said they felt used by politicians unless they agreed with and supported the dominant radical feminist discourse that sex workers are victims in need of state protection. Ostergren writes,
"they think that sexworkers are only listened to and being paid attention to if they say the correct things, i.e. that they find prostitution appalling, that they are victims, that they have stopped selling sex and will never go back, and that they are grateful to the current prostitution policy and to the policy makers" (Ostergren 2004, n.p.). Ostergren further argues:
I have been concerned by the fact that the very women who are at the center of prostitution policy are so rarely heard and so often feel discriminated against. If equal rights for women is important, then the experience of sexworkers themselves must surely be central to our discussion, regardless of what position one takes on prostitution. (Ostergren 2004, n.p.)
Effectively, Swedish prostitutes and others are arguing that since the abolitionist laws on the purchasing of sexual services have come into effect, prices for services have decreased, sex without condoms and violence have increased, clients are forced to go
120 to neighbouring states, and the industry has been pushed further underground (Sambo
2001; Gould 2002; Norway 2004). Further, independent studies as well as individual sex workers are claiming that they are faced with worse working conditions and increased violence in general and from clients in particular (Cederberg 2004).
Legalization: The Forced/Voluntary Policies of the Netherlands
Often referred to as pragmatic, the Netherlands system of legalized prostitution was created upon notions of forced and voluntary sex work. The Dutch case study demonstrates a policy framework that on the surface appears to support prostitutes' labour rights but underneath is a harsh system with a thriving illegal underground where many sex workers are at increased health and safety risk. Indeed, some sex workers and sex work organizations claim that certain policies and state practices are too stringent and do more harm than help (De Rode Draad n.d. a; De Rode Draad n.d. b).
Key Policy Developments and Parliamentary Debates
The Dutch government is made up of three independent, yet intimately integrated, areas: the cabinet37, the parliament (States-General), and the courts
(judiciary) with the Queen, currently Queen Beatrix, occupying the position of Head
37 The Cabinet is made up of all of the appointed Ministers, the Prime Minister, and the State Secretaries (Staatssecretaris) and is responsible to the parliament.
121 of State38 (MIKR 2004, 7). The parliament, or States-General, is made up of two
•3Q
Houses - Lower House, called Second Chamber , and Upper House, called First
Chamber40 or the Senate. In order to create new or modify old legislation, a bill must pass through both Chambers. In the case of new legislation, the government will first give the proposal to the Council of State41 who is responsible for researching the legality of the bill and whether or not it is constitutionally sound42 (DHR n.d. a). The government will then either accept or reject the Council of State's recommendations before passing it to the Head of State, the Queen, who must append a royal message.
From there it is sent to one of the standing committees of the Second Chamber for review before it is debated, and possibly modified, by the full Second Chamber.43 If it passes the Second Chamber with a majority vote it will be sent to the First Chamber, or Senate, for ratification (DHR n.d. b). First Chamber does not have the authority to modify a proposed bill but must accept or reject it in its entirety (EKSG n.d.). If the
38 It is the role of the Queen to assist in some government and legislative processes, for example she has to co-sign all laws in order to validate them, and to appoint the Cabinet Ministers in communication with parliament. Though in practice, she does not participate in day-to-day decision-making 39 The 150 seats of the Second Chamber, called the Tweede Kamer in Dutch, and also called the House of Representatives, are elected by party-list proportional representation. Second Chamber is responsible for reviewing the actions of the Cabinet, for debating and discussing proposed bills, and for putting forth suggestions on Supreme Court Judges. The official English language website can be found here: http://www.houseofrepresentatives.nl/ 40 There are 75 seats in the First Chamber, called the Eerste Kamer in Dutch. The official English language website can be found here: http://www.eerstekamer.nl/. 41 Official English language website can be found here: http://www.raadvanstate,nl/. 42 Both Cabinet and members of the Second Chamber have the ability to initiate a bill or proposed legislation. The process for ratification is the same in either instance. 43 It is the standing committee's responsibility to do further research, compile information, request government briefings, and possibly survey public opinion and consult experts before writing a report on their views of the proposed bill (DHR n.d. a; DHR n.d. b).
122 bill is accepted in First Chamber it will be sent back to the Queen for her final
signature (DHR n.d. a).
As the Netherlands is governed by a multi-party parliament, with usually two
or three main political parties making up the majority, proposed legislative changes
are generally made through coalitions (DHR n.d. c). Coalitions are formed following a national election and the outset of a new government (Outshoorn 2002, 186). The parties that wish to form a coalition will get together and decide on which policies they will focus on over the coming four years. Coalition priorities and goals are
formalized through 'coalition agreements' that the different parties sign44 (Outshoorn
2002, 186-7) Often the process for building and solidifying party coalitions can take
up to a few weeks after an election.
Around the turn of the twentieth century, social and moral reform movements
that conceptualized prostitution as slavery endeavoured to see it eradicated along with
immoral behaviour,45 'houses of sin', and pimping (Boutellier 1991; Gregory 2005, 3-
4). Their goals were partially achieved in the Netherlands in 1911 with the passage of
the Morality Act outlawing all forms of exploitation, including keeping a brothel and
living on the avails (Boutellier 1991, 1; van Doorninck 2002,193; Gregory 2005,4).
For sixty years following the passage of the Morality Act, Dutch public debates were
relatively silent on sex work. It was not until the 1970s and 1980s that sex work was
44 For example, the full English text of the 2007 coalition agreement between the Christian Democratic Alliance, the Labour Party, and the Christian Union and be found here: http://www. government.nl/policy/balkenende4/regeerakkoord/index.i sp. 45 Including the use of contraception, homosexuality, and abortion.
123 once again at the forefront of debate and scrutiny. Around this time, a number of significant international phenomena were transpiring: there was an increase in transnational migration and tourism (Truong 1990); there was a rise in the radical feminist focus on prostitution and pornography (Duggan and Hunter 1995); and sex workers' rights organizations were beginning to form and mobilize (Delacoste and
Alexander 1988; Pheterson 1989; Jenness 1993; Kempadoo and Doezema 1998).
Sex work researchers have hypothesized other reasons for the renewed public interest in the Dutch sex trade as well as for the increase in sexual establishments, for the changing public conceptualization of prostitution, and for the growing tolerance of the industry. Sietske Altink (1995), for example, correlates the growth of Dutch sex clubs and establishments through the 1970s with the greater availability of contraceptive pills, antibiotics for sexually transmitted diseases, and extramarital sex.
She argues that brothel owners and operators began to capitalize on the intensification of sex and started to offer more diverse establishments and services (like sex clubs with rooms showing pornography or rooms with whirlpools) (Altink 1995, 41).
Similarly, Marieke van Doorninck (2002), of The International Committee on the
Rights of Sex Workers in Europe, explains that the sexual revolution and an economic upswing in the Netherlands of the 1970s led to an increased number and greater visibility of sex workers on the streets and working in brothels, both of which were still illegal (van Doorninck 2002, 193). Additionally, Katherine Gregory (2005) argues that part of the mounting tolerance of prostitution was due to the efforts of advocacy groups at the time. She contends that the increasing politicization of sex work
124 contributed to the burgeoning conceptualization of prostitution as a labour issue
(Gregory 2005, 4).
Prior to the 1970s, city ordinances regulated, and virtually outlawed, street soliciting and the Dutch Penal Code, still partly based on the 1911 Morality Act, banned brothels (van Doorninck 2002). In an attempt to keep the public peace, the
Dutch police were increasingly fining and jailing street-based sex workers, many of whom were addicted to heroin (van Doorninck 2002, 194). Street-based soliciting was deemed acceptable only in specific municipally regulated red-light areas and so long as the public was not disturbed (Gregory 2005, 5). Through the 1970s and into the
1980s, with a rising visibility and number of sex workers, the police continued their arrests (van Doorninck 2003, 194). As van Doorninck's research posits, "Time and again, this practice was criticized as counterproductive and many police officers, especially from the vice squad, were unhappy about it' (van Doorninck 2002, 194).
Indeed, the sex workers who were being charged had to work less safely to avoid arrest, the police were frustrated at having to deal with the problems caused by
"incompetent and half-hearted politicians", and the job of the vice squad at solving rape and assault cases was made harder as they relied on good relations with the street- based women for information (van Doorninck 2002, 194-195). Further, it has been documented that during times of heightened police raids, arrests, and crack downs, sex workers are more frequently assaulted, robed, and raped (van Doorninck 2002, 194-
195).
125 Partially in an effort to reduce the nuisance aspects of the street-based trade, city councils began to tacitly accept sex clubs and other businesses so that sexual services could be provided indoors. While brothels and other sexual service establishments were still illegal at the time, as long as the public was not being bothered, they were not of major concern (van Doorninck 2002, 195). In certain urban areas, due to the relative invisibility and segregation of the sex industry, prostitution was slowly becoming more of an acceptable activity (van Doorninck 2002, 196).
Indeed, there was a growing social and political tolerance of sex businesses (Altink
1995,42; Norway 2004, 26). van Doorninck postulates that the over arching framework which lead to the Netherlands policy change was the 'not in my back yard principle' (NIMBY). She argues that the growing public and state tolerance of the sex industry was based on a general level of indifference where "as long as you do not bother others, or interfere in their daily lives, you can do what you like" (van
Doorninck 2002, 194). She further articulates that as the sex industry grew through the
1980s so did the idea of legalizing it and cities began to gradually change their policies to allow for 'tolerance zones' (van Doorninck 2002, 195). Altink further suggests, "the demand for legalization was accompanied by a campaign to recognize prostitution as labour. This was initiated by prostitutes, supported by a small group of feminists"
(Altink 1995, 42). Both socially and politically there developed a kind of 'active tolerance' of sex work and the government began to put in place measures for zones and licenses (Norway 2004, 26).
126 Joyce Outshoorn (2001, 2004) argues that the Dutch parliament began to seriously consider legislative reform of the sex industry as "evidence emerged that women from the 'third world' were being trafficked to work as prostitutes" and municipal attempts to regulate sex businesses were being struck down by the courts
(Outshoorn 2001, 474). In order for brothels to become legal businesses, and for tolerance zones to exist, the 1911 prostitution-related sections of the Morality Acts had to be repealed and the Dutch Penal Code needed to be modified. The first major attempt to legalize brothels was made in 1985 with Bill 18202, 'Repeal of the brothel ban' (Outshoorn 2004a, 188). The then Minister of Justice proposed "to modernise the
Penal Code" around prostitution related offences and to remove the provisions for work camps for convicted pimps (Outshoorn 2004a, 188). During parliamentary debate the majority of Cabinet was in agreement to strike the ban on brothels in order to let municipalities fully regulate their own sex industries (Outshoorn 2004a, 188).
The groundbreaking originality of Bill 18202 was the differentiation between forced and voluntary sex work. The wording surrounding prostitution changed from the Morality Act's 'vices' and 'morals' to 'payment' and 'work' (Outshoorn 2004a,
188). At the time, it was a landmark proposition, one that still actively guides the
Dutch legal framework today (Outshoorn 2001,474-5). Bill 18202 was debated and passed by the parliamentary Second Chamber in 1987 but was delayed in the First
Chamber in 1989 before ratification (Outshoorn 2004a, 189-90). The Christian
Democratic Party opposed the labour-based concept of sex work on moral grounds
(Outshoorn 2004a, 190). Additionally, the bill ran into legalistic troubles with the
127 confusing definition of'coercion' in relation to trafficking (Outshoorn 2004a, 190).
Bill 18202 was temporarily tabled in 1989 until a new second bill could be drafted that
would clarify and improve the trafficking legislation. First Chamber was to wait until
it received a newly proposed trafficking bill from Second Chamber in order to debate
both in unison (Outshoorn 2004a, 190). In effect, Cabinet was mandated to create a
second bill that would clarify the trafficking legislation before further debates around
the repeal of the brothel ban were allowed to continue. Shortly thereafter, Bill 21027
'Trafficking of Persons', was introduced to parliament; and with it, a clearer
distinction between forced and voluntary prostitution46 (Outshoorn 2004a, 193).
While the proposed trafficking legislation, Bill 21027, supplied a tighter
definition of coercion it also stipulated that only European Union sex workers would
be considered 'voluntary' prostitutes (Outshoorn 2004a, 194). The bill argued that based on financial circumstances, women from less economically developed nations
are trafficked into the industry as victims of force (Outshoorn 2004a, 194). The proposed trafficking bill was fiercely debated in the Second Chamber in 1992 as some
members disagreed with the characterization of non-EU sex workers (Outshoorn
2004a, 194). Despite various objections, the bill eventually passed Second Chamber to be discussed in First Chamber alongside the still tabled brothels bill, Bill 18202.
Since the fate of both bills rested on the success of the trafficking bill, First Chamber's
46 Bill 21027 also included provisions for municipalities to enforce a zero brothels policy within their own jurisdictions as well as gender-neutral language to include the trafficking of men and boys (Outshoorn 2004a, 194).
128 constitutional inability to amend bills was waived (Outshoorn 2004a, 195). Members of First Chamber disagreed with sections of the proposed legislation and ordered the
Minister of Justice to remove the offending articles (namely, the conceptualization of non-EU sex workers and the ability of municipalities to institute brothel bans). These modifications were enough for First Chamber to approve the trafficking bill but there was still not a majority of support for the brothels bill (Outshoorn 2004a, 195). As van
Doorninck argues, "The first attempt to change the law in 1993 failed on moral grounds" (van Doorninck 2002, 196). In a twist of fate, Bill 21027 'Trafficking of
Persons' passed into legislation but the original Bill 18202 'Repeal of the brothel ban' was rejected. In effect this meant that brothels remained illegal but there were stiffer penalties for trafficking.
The next major effort to over turn the 1911 ban on brothels came in 1997 with
Bill 25437, the second 'Repeal of the brothel ban' (Outshoorn 2004a, 197-202). The primary concerns of Bill 25437 were to regulate sex workers, to let municipalities licence sex businesses, and to protect minors from entering the industry (Outshoorn
2004a, 198). The bill was a top priority for three cabinet parties and was therefore written into their coalition agreement (Outshoorn 2004a, 197). The proposed legislation was quite similar to the previous Bill 18202 and included the
'forced/voluntary' distinction, which was then becoming an increasingly socially acceptable frame (Outshoorn 2004a, 198). The key differentiation between the two
'Repeal of the brothel ban' bills was that Bill 25437 framed prostitution as sexual labour and prostitutes as sexual workers providing a service (Outshoorn 2004a, 198).
129 The bill, though, was not concerned about improving the status of the country's sex workers. Instead, it explicitly focused on the control, regulation, protection, and enforcement of the sex industry. As Outshoorn articulates,
The lifting of the brothel ban was portrayed as essential in order to control and regulate prostitution, protect minors from sexual abuse and 'protect' (not 'improve') the position of prostitutes. (...) In the memorandum to the bill the minister wrote that legalizing brothels would lead to the 'normalization, control, cleansing and regulation of the sex business'. (Outshoorn 2001, 483)
The bill was debated by Second Chamber and First Chamber between 1997 and 2000 and officially came into effect on October 1, 2000 (Outshoorn 2004a, 198-200).
After nearly twenty years of sex industry debates, the Netherlands officially lifted their ban on brothels, one year after Sweden criminalized the 'purchasing of sexual services' (van Doorninck 2002, 196-7). In a speech to parliament, the then
Minister of Justice argued, "Prostitution has existed for a long time and will continue to do so... prohibition is not the way to proceed... one should allow for voluntary prostitution" (Outshoorn 2004a, 185). He also noted that all kinds of forced prostitution would be 'combated vigorously'. According to one observer, van
Doorninck, the years of debate were useful to help integrate the mostly illegal sex trade into conventional society and provided the time for "both civil servants and sex club owners... to get used to the idea of doing business with each other" (van
Doorninck 2002, 197).
130 Current Sex Work Framework
According to the current Dutch definition, forced prostitution is trafficking in women, debt bondage, pimping without the consent of the worker, and underage prostitution (van Doorninck 2002, 196). Voluntary adult prostitution is seen and understood to be a consensual form of work, one in which workers, predominantly women, are eligible for health and safety benefits, medical benefits including sick leave, regular access to nurses and other health care providers, voluntary, free, and confidential STD testing and counselling, as well as free syringes and drug addiction counselling (Norway 2004, 27,40-43). Interestingly, because of the strong emphasis on consent, if a sex worker refuses to deliver a sexual service to a client she will not lose her social security as this particular brand of work is deemed 'special work' under the Netherlands labour regulations (De Rode Draad n.d. a; Outshoorn 2001, 483). The
'special work' status also means that employment offices do not advertise for vacant brothel positions (Norway 2004, 41). Of the estimated 25,000 practising prostitutes, about half are currently working in brothels47 (Norway 2004, 23). Local governments are responsible for issuing licences and strict health and safety standards are written into policy (van Doorninck 2002, 197; Wijers 2004).
The municipalities that have been most successful in creating and regulating safe areas for sex workers have been those that have actively solicited input from sex trade workers in conjunction with police services, residents, and brothel owners
47 In addition to its many brothels, the Netherlands currently hosts a number of 'red-light areas,' the largest and most well known of which is called De Wallen and is located in Amsterdam (Fletcher n.d.; Aalbers 2005). De Wallen is also called Walletjes or Rosse Buurt.
131 (Norway 2004, 31, 32, 43; De Rode Draad n.d. a; De Rode Draad n.d. b). In these instances, brothel inspectors and nurses are more likely to be welcomed into establishments and sex workers are more likely to call police when needed. In some districts the police have reported a 30% decrease in street crime since legalization
(Norway 2004,44). Not all districts, though, have actively consulted sex workers in policy development. Indeed, some municipalities and residents organizations have been vocal opponents of the legalization of the industry and have lobbied for a return to banning it. In fact, 43 of the countries local authorities (or 12%) have approved 'no brothels' policies and have banned the establishments within their borders (Norway
2004, 30).
Other municipalities have imposed excessively stringent and confusing licensing systems that are extremely difficult to navigate. Often each of the multiple offices required in the licensing process have their own framework to deal with sex work, and these can collide and contradict one another (Norway 2004, 30). Key departments include the police, fire services, health inspectors, building and housing departments, law offices, zoning offices, tax authorities, immigration, and more
(Norway 2004, 30). Indeed, "In some municipalities the brothel owners encounter so many strict and unreasonable regulations that it is difficult to operate illegally"
(Norway 2004, 31). Additionally, as previously mentioned, social stigma and discrimination remain in some jurisdictions so that many prostitutes do not want their sex work-related employment to be officially documented. In response to this system, some sex workers have chosen not to comply and find it in their best interest to refuse
132 licensing, remain anonymous and thus work in illegal and clandestine ways (Norway
2004,30-31).
Similar to the immediate aftermath of the legislative changes in Sweden, the
Netherlands also saw a sudden decrease in the size of its sex industry; with upwards of
35% shrinkage, only the largest corporately owned sex businesses survived (Bernstein
2007, 162). From her interviews with sex workers in the Netherlands in 2002 and
2003, Bernstein writes that many women who were working independently reported negative consequences of legalization including a worsening of working conditions and a lowering of prices for sex (Bernstein 2007, 162). Her research demonstrates, "a centralization of power had thus been achieved, pushing down prices for sex and narrowing the range of potential employers" (Bernstein 2007,162).
The Netherlands has historically hosted and employed un-documented and non-EU workers in the sex industry48 (Altink 1995; van Doorninck 2002; Wijers 2004;
Gregory 2005). Some researchers have claimed that prior to the legislative changes, migrant sex workers consisted of upwards of 50-60% of the sex trade (Bernstein 2007,
159). According to the Norwegian Report Purchasing Sexual Services in Sweden and the Netherlands, the demographic of sex industry workers has changed over the decades:
In the 1970s most [sex workers] came from Thailand and the Philippines. In the 1980s they came form Latin America and South East Asia. After the fall of the Berlin Wall many arrived from central and eastern Europe. In 1999 not more that 1/3 were Dutch. The other 2/3 represented 44 different nationalities.
48 The Netherlands has a population of approximately 16,500,000 with at least 2 million of foreign origin (MIKR 2004, 7).
133 Most came from the Dominican Republic, Colombia, the Chez Republic, Romania and Poland. (Norway 2004, 24)
Since the passage of the new legislation, any non-EU citizen found working in the sex trade is treated as an illegal immigrant under the Dutch Aliens Act49 (Norway 2004,
42). Within the legalized framework, brothel owners will lose their licences if found to employ un-documented, non-EU workers (van Doorninck 2002, 198; Norway 2004,
31). As such, many migrant sex workers are now finding themselves unemployed and at risk of deportation (van Doorninck 2002, 198; Gregory 2005). A former member of the sex workers' rights organization De Rode Draad stated, "At least 12,000 women were made illegal overnight" (Bernstein 2007,159). As a consequence, these sex workers are forced to turn to more dangerous and illegal sex clubs for work, of which there are many (van Doorninck 2002, 199; Wijers 2004; Gregory 2005). Amsterdam's mayor, Job Cohen, argued that many of the sex businesses in the city's red light district are actually a front for money laundering and trafficking of illegal migrants
(Coughlan 2006a). In 2006, Amsterdam city council voted to revoke 33 licences of sex business owners forcing the closure of 105 of the 350 red light district windows
(Sterling 2006). Sex business owners and sex worker activists have threatened to take the city to court for this move which, they argue, will force both legal and illegal prostitutes to work in less safe street-based areas.
49 It is primarily the Aliens Police that deal with non-EU sex workers as their primary role is "supervising foreign nationals... dealing with foreigners who are engaged in criminal activities... removing illegal aliens and taking measures to combat the abuse and exploitation of illegal aliens" (MIKR 2004, 18-19).
134 While industries are regulated to protect public and state interest, the sex industry in particular is governed to such a degree that it often inadvertently penalizes the workers and pushes them to underground areas. Through the Netherlands example of legalized and regulated sex work, it seems apparent that while the system was created to protect sex workers, it has inadvertently harmed many of those most vulnerable. Sex workers who were already the most marginalized and exploited were pushed further underground into increasingly dangerous circumstances (van
Doorninck, 2002 198-199; Gregory 2005). Indeed, in some municipalities, prostitution is still deemed socially objectionable behaviour and sex workers face discrimination, marginalization, and sometimes, legal ostracization. In effect, prostitution is legally and politically tolerated but is still socially unacceptable (van Doorninck 2002, 194).
The legalized system of the Netherlands appeals to many left-leaning policy makers because it seems to both respect the rights of sex workers and the interests of the government simultaneously. In actuality, many sex workers, in the Netherlands and in other countries, are arguing that some legalized systems are overly regulated by state powers (Self 2004; Wijers 2004). Francis Shaver (1985), for example, argues that the policy framework of legalization is most advocated by non-sex workers as "the solution most likely to serve the interests of both the public and the prostitutes. (...)
Unfortunately, such a solution is unlikely to satisfy the individuals working as prostitutes" (Shaver 1985b, 497). The series of rules and laws that sex workers are forced to abide by (licensing, forced finger printing, curfews, 'red light' zones) can be too stringent and often not in their best interests as workers.
135 Decriminalization: Sexual Labour in New Zealand
In June 2003, the New Zealand parliament passed legislation to decriminalize
prostitution (MoJ-NZ n.d.; PRA 2003). This means that the country's sex industry
now operates under similar health and safety rules as other New Zealand industries.
While it is still too early to judge the long-term effects of the system, sex workers
organizations, in New Zealand and around the world, are heralding this move as a
progressive and important change in support of sex workers' rights (Clamen 2005a).
The decriminalization case study demonstrates a third policy framework, one in
which sex workers labour and safety rights are paramount to the discussion.
Key Policy Developments and Parliamentary Debates
New Zealand is one of 53 independent nations that make up the British
Commonwealth of Nations.50 Each nation is independent of each other and can pass
their own legislation, can elect their own representatives, and has their own
Constitution. The Constitution dictates that the Queen of England51 and the House of
50 Sixteen of these 53 nations, including Canada and New Zealand, have Queen Elizabeth II as their sovereign Head of State and, as such, form the 'Commonwealth Realms'. 51 The Queen, or constitutional monarch, is not paid any money by New Zealanders, nor is any other member of the royal family, except when she is in residence or is acting on behalf of New Zealand abroad. It is the Governor General who acts as the Queens' representative and is financially supported by the government as de facto Head of State. The Governor General gives assent to bills passed through parliament and is constitutionally responsible for appointing the Prime Minister (DPMC 2001b, 9). The appointment, though, is only given to the leader of the party, or coalition of parties, that makes up the majority of the House of Representatives and has been elected by proportional representation.
136 Representatives52 make up the parliament, or legislature, and that each parliament has
a term of three years (CA 1986; DPMC 2001b, 3). The process for effecting
legislative change is a multi step procedure beginning with the House of
Representatives. In order to initiate a new bill, or to amend an old one, the proposal
must first be introduced to the House.53 When the time is appropriate, the House will
read and debate the proposed bill and will vote on whether it should be immediately
struck down or given to a Committee to be studied in greater detail (PNZ n.d.). If the
bill gets sent to a Committee, they will generally have six months in which to consult
the public, hold hearings, make amendments, and submit a report with
recommendations (PNZ n.d.). The Committee will then submit their final report back
to the House for a second reading and debate.54 At the end of the second debate, the
House will vote to either terminate the bill or to send it to a 'Committee of the Whole
House'55 (PNZ n.d.). This deliberation is less formal than the previous two debates
and allows for members to make speeches, discuss the specific sections of the bill in
more detail, and propose further changes (PNZ n.d.). Once the Committee of the
Whole House has come to an agreement on the final form of the bill, it is presented
back to the House for a third and final debate. Bills are rarely rejected at this point as
52 There are generally 120 seats in the House of Representatives. 53 A bill cannot be debated in the House until at least three sitting days after it has been introduced to allow members the time to familiarize themselves with it (PNZ n.d.). 54 During the second reading, the House will debate both the bill and the recommendations made by the Committee. 55 All members of the House of Representative are eligible to participate in the Committee of the Whole House.
137 the third reading is generally more of a summary of changes (PNZ n.d.). If the bill is
approved, it is sent to the Governor General for royal assent (CA 1986).
Labour Party Member of Parliament Tim Barnett (2007) reports that of the approximately 4 million inhabitants of New Zealand about 6,000 are regular or occasional sex workers, roughly 90% of whom are women (Barnett 2007,1).
According to Barnett, sex workers work in an assortment of locations:
Approximately 65% work in brothels; 10% are street-based, in a total of 8 locations in the 3 largest cities; 25% are home-based or work from rental properties in small groups. (...) Their clients seem to come disproportionately from people visiting from overseas or from elsewhere in New Zealand, from those with physical or mental disabilities and from those with relationship difficulties. (Barnett 2001, 1)
Prior to the decriminalization of prostitution in 2003, sex workers were subject to a wide variety of fines and prison sentences related to their work. The national sex workers' right's organization, the New Zealand Prostitutes Collective (NZPC), summarizes the principle charges that sex workers used to face:
- solicited for the purposes of prostitution (up to $200 fine); - kept a brothel (up to 5 years in prison); - lived on the earnings of prostitution (up to 5 years in prison); - procured anyone for the purposes of prostitution (up to 7 years in prison). (NZPC n.d., n.p.)
Further, sex work laws were biased in favour of clients; it was illegal to offer to sell sex in exchange for money, but legal to offer to buy sex or to accept money for sex
(Weatherall and Priestley 2001, 323). Essentially, the legal framework was one in which clients could approach sex workers but sex workers could not approach clients.
Interestingly, while aspects of sex work were criminalized, many social
138 institutions tacitly tolerated its activities, which were seen as contributing to the eventual decriminalization of prostitution. For example, Ann Weatherall and Anna
Priestley (2001) argue that the police encouraged sex workers to register with them and tax agencies were looking into feasible ways to implement taxation schemes
(Weatherall and Priestley 2001, 323). MP Barnett further argues that it was a combination of increasing knowledge and prevalence of HIV/AIDS in the 1980s with the election of the Labour Party to government that created the environment for new progressive national social policies, including: the decriminalization of gay sex; country-wide needle exchange programs; and government funding for the New
Zealand Prostitutes Collective (Barnett 2007, 1).
During the mid 1990s a coalition of women's, health, and human rights groups formed and began working towards the national decriminalization of the sex industry
(Barnett 2007,1). A bill to reform prostitution laws was introduced to parliament in
1999 and received its first reading in 2000, passing with a wide majority vote of 87 to
21 (Barnett 2007,1). Following two and a half years of research, consultations, committee reviews, public submissions, and amendments (including a mandatory review after five years) the bill was to be debated in parliament for a final time in third reading. On the day of the parliamentary vote, New Zealand's first openly transsexual
Member of Parliament and former Maori sex worker Georgina Beyer56 (2003) made a
56 During her seven years in parliament, Beyer represented the rural Wairarapa electorate, which, prior to her successful elections in the 1990s first as mayor and then as Member of Parliament, had a long conservative history of supporting the National Party. Beyer is a Labour Party member. See http://www.georginabeyer.com/bio.htm
139 short but moving speech in favour of the proposal. In Beyer's speech she talked about violence towards sex working communities and the lack of support that sex workers have in the face of such violence (Beyer 2003; GNZ 2003). She drew on her own background in the sex industry to further illustrate her point. Interestingly, she argued that the legislative changes could have prevented her from entering the industry altogether:
I support the bill, because, as everybody knows, I have had experience in the sex industry—and I am the only member of this Parliament to have had it. If I had had a law like this to protect me and give me some teeth for redress when I was 16 and 17 years old... then I might have been spared the 5 or so years I spent in that industry.57 (GNZ 2003, n.p.)
Beyer focused her arguments in favour of the bill on how it can prevent youth from entering the sex industry and can curb violence from clients (Beyer 2003). She further argued that the Prostitution Reform Act (PRA) could in fact 'clean up' the industry from organized crime as the decriminalization of sex work begets its social legitimacy:
We are bringing prostitution reform into the light with some of what is proposed in this bill, and the criminal element does not necessarily like to be standing in the glare of greater public influence over how an industry like this might be conducted within our society. It is about accepting that that occurs, and it is about accepting the fact that the people who work in this industry deserve some human rights. I plead with those members in this House who are wavering right up to the wire, to think, for heaven's sake, of the people of whom I have just spoken, including myself, who might be spared some of the hideous nature of the way society treats prostitutes... (Beyer 2003, n.p.)
Just after Beyer's passionate speech, on Wednesday June 25, 2003, the Prostitution
Reform Act was officially accepted by Parliament, after nearly three years of debate
(GNZ 2003; Barnett 2007, 1). The bill narrowly passed third reading with a slim one-
57 See Appendix F: Beyer Speech to Parliament for the complete text of her speech.
140 CO vote margin with 60 in favour, 59 against and one abstention30 (GNZ 2003; Barnett
2007, 1). The vote was a 'conscience vote' so that Members of Parliament were able to vote by personal conviction rather than along party lines (CommoNZ n.d.).
In addition to support from some politicians and women's groups, the New
Zealand Prostitutes Collective was active in advocating in favour of the bill during its development and in the years of debates that preceded the final favourable vote of the
PRA (NZPC n.d.; NZPC 2002). Despite the progressive outcome, the NZPC argue that the proposed bill changed as it went through parliamentary debates and hearings so that some of their original proposals were lost along the way (NZPC n.d.). An interesting inclusion in the PRA, however, is the mandatory use of safer sex protection for sex workers and clients; both the client and the sex worker can be criminally charged if he or she contravenes59 (PRA 2003). Even brothel owners and operators are responsible for taking steps to ensure that condoms and other safer sex supplies are being used on the premises. The PRA further stipulates, "a person may, at any time, refuse to provide, or to continue to provide, a commercial sexual service to any other person" without any sort of penalty (PRA 2003, n.p.). Further, sex workers no longer have to register with the police and can therefore keep their anonymity and they are allowed to work even if they have a police record, regardless of the conviction (PRA
58 The country's only Muslim MP, Ashraf Choudhary, from the Labour Party abstained (The Indian 2004). 59 Section 8.1a stipulates: "Every operator of a business of prostitution must — take all reasonable steps to ensure that no commercial sexual services are provided by a sex worker unless a prophylactic sheath or other appropriate barrier is used if those services involve vaginal, anal, or oral penetration or another activity with a similar or greater risk of acquiring or transmitting sexually transmissible infections" (PRA 2003, n.p.).
141 2003). The PRA also empowers small groups of sex workers to work from their own homes rather than for a boss or manager. An Operators Certificate60 is required for any individual or group who "owns, operates, controls, or manages the business" but there is a built in exception to this rule for small owner-operated brothels (PRA 2003, n.p.).
It is possible for up to four prostitutes to work together without an Operators
Certificate provided that "each of those sex workers retains control over his or her individual earnings" (PRA 2003; OSHS 2004, 16).
Current Sex Work Framework
The Health and Safety in Employment Act 199261 (HSE) along with the
Prostitution Reform Act 2003 are the two key documents that currently set out the provisions with which all New Zealand sex industry workers, managers, employers, and clients must comply. Specifically, the HSE Act62 provides the occupational health and safety guidelines for all places of work across the country (DoL 1992). In relation to the sex industry, this means that all brothels63, for example, at a minimum must be
60 Section 5 of the PRA ('Definition of Operator') outlines who exactly is responsible for having an Operators Certificate. 61 The HSE Act was first created in 1992 but was significantly changed and updated in 2002. Despite the 2002 modifications, it is still referred to as the 1992 HSE Act. 62 It is the responsibility of the Department of Labour to enforce the HSE Act is most New Zealand workplaces. In the maritime sector and aviation sector the HSE Act is enforced by The Maritime New Zealand and Civil Aviation Authority and it is the New Zealand Police who enforce the HSE Act when it comes to commercial vehicles (DoL 1992; DoL n.d.). 63 According to the Prostitution Reform Act, a brothel is "any premises kept or habitually used for the purposes of prostitution. It does not include premises at which accommodation is normally provided on a commercial basis if the prostitution occurs under an arrangement initiated elsewhere" (OSHS 2004, 11).
142 in good repair and must have fire extinguishers, but it also suggests that sex workers' outfits have to be comfortable to wear, that there needs to be non-allergenic lubricants and oils available, and that sex workers should have decent breaks between clients
(OSHS 2004, 17-18). The HSE Act further defines a 'place of work' very broadly and includes a vehicle and a client's house or hotel room in addition to the more common definitions of place of work like a brothel, escort office, or massage parlour (DoL
1992). In effect, this should mean that a client's house or car must meet the health and safety guidelines created to protect workers from harm. Similarly, in Section 10.1 of the Prostitutes Reform Act it stipulates, "A sex worker is at work for the purposes of the Health and Safety in Employment Act 1992 while providing commercial sexual services" (PRA 2003, n.p.).
One of the more important and interesting points of New Zealand's PRA is that the legitimization of sex work is of primary concern and sex workers themselves participated in the creation of industry guidelines (NZPC n.d.; PRA 2003). Indeed, the stated purpose of the Prostitution Reform Act is fivefold64:
... to decriminalise prostitution (while not endorsing or morally sanctioning prostitution or its use) and to create a framework that — (a) safeguards the human rights of sex workers and protects them from exploitation: (b) promotes the welfare and occupational health and safety of sex workers: (c) is conducive to public health: (d) prohibits the use in prostitution of persons under 18 years of age: (e) implements certain other related reforms. (PRA 2003, n.p.)
64 The NZPC further includes on their website an easy to read summary of the key points of the 2003 Prostitution Reform Act. See Appendix G: NZPC Summary of Laws.
143 Therefore, the intention of the PRA is to support the human rights, health, and safety of sex workers.
One year after the decriminalization of its sex industry, in 2004, the New
Zealand Department of Labour's Occupational Safety and Health Service published a
100-page brochure "for everyone involved in the New Zealand sex industry: sex workers both employed and self-employed, operators, owners and others such as sex worker organizations" (OSHS 2004, 6). The easy to read brochure outlines employer's and employee's legal responsibilities, health and safety guidelines that must be upheld in workplaces, facilities that are required in brothels, and guidelines on security and safety of sex workers (OSHS 2004). The Occupational Safety and Health Service's proposed guidelines were modeled on a publication developed by an Australian sex worker organization, the Scarlet Alliance, and the Australian Federation of AIDS
Organisations titled A Guide to Best Practice: Occupational Health and Safety in the
Australian Sex Industry (OSHS 2004). The Occupational Safety and Health Service further acknowledges the participation of the New Zealand Prostitutes Collective
"who provided industry-specific information and understanding of the sex industry in
New Zealand" (OSHS 2004, n.p.). It is apparent that workers' health, safety, and labour rights are the top priority, as opposed to the Netherlands where the principle focus of the legalization of the industry was to gain better control and to be able to better regulate sex workers. Indeed, the New Zealand Ministry of Justice's own website states, "this Act decriminalises prostitution in New Zealand, and introduces provisions to protect the health and safety of sex workers and their clients" (Mo J-NZ
144 n.d.). The difference between the control-based framework of the Netherlands and the labour rights-based frame of New Zealand is stark. For example, the foreword of the
Occupational Safety and Health Service's brochure ends with the following sentence,
"Like all New Zealanders, workers in the sex industry have the right to come home from work safe and well" (OSHS 2004, 7).
In 2005, Catherine Healy, a member of the New Zealand Prostitutes
Collective, presented on the new situation in her country at an international sex worker conference held in Montreal, Quebec (Clamen 2005a). In summarizing Healy's presentation Canadian sex worker activist Jennifer Clamen stated, "Contrary to popular myths, more people did not flock to the sex industry and sex workers in New
Zealand are now able to create Occupational Health and Safety Guidelines for their industry, and work without the burden of criminalization on their lives and work"
(Clamen 2005a, n.p.). It is important to note, however, that the legislation only applies to sex workers who are New Zealand citizens (PRA 2003). All individuals with permits granted under the Immigration Act 1987, whether they were given out before or after the legislative changes, will have their permit revoked65 if they work as a prostitute or if they operate or invest in a prostitution business (PRA 2003). Even permanent residents can face deportation if they are caught working as a sex worker or running a brothel (PRA 2003).
One area of difficulty in the New Zealand situation is the determination of the
65 Specific details can be found in Section 19. 1-5, 'Application of Immigration Act 1987' in the Prostitution Reform Act.
145 sex worker's employment status and therefore his or her right to join a union, to have paid time off for bereavement and sick leave, to have access to workers compensation and other benefits. The PRA does not outline when and if a sex worker is considered an employee (OSHS 2004, 18; PRA 2003). According to the HSE Act an employee is a, "person of any age employed to do any work (other than residential work) for hire or reward under a contract of service" (OSHS 2004, 20). But the HSE Act further outlines that, "independent contractors are not treated as employees under the Act (but they still have obligations under the Act, and obligations are owed to them)" (DoL
1992, n.p.). Similar but not exactly the same, is the definition of employee according to the Employment Relations Act 200066 (ERA). The ERA defines an employee as
"any person of any age employed by an employer to do any work for hire or reward under a contract of service" (ERA 2000, n.p.). The key difference is the inclusion of the phrase 'employed by an employer.' It goes on to specify, "whether a person is employed by another person under a contract of service, the Court or the Authority (as the case may be) must determine the real nature of the relationship between them"
(ERA 2000, n.p.). The Health and Safety in Employment Act makes it clear that in an exchange of sexual services, the sex worker is decidedly not the employee of the client, and vice versa (OSHS 2004, 12). On most sexual services related definitions, for example owner and operator, the HSE Act defers to the Prostitution Reform Act.
66 The ERA underwent major revisions and amendments in 2001, 2004, 2006, and 2007 but is still commonly referred to as the Employment Relations Act 2000. Full text of the 2007 amended version can be found online here: http://www.legislation.govt.nz/browse_vw.asp?content-set=pal statutes
146 Within the first few years of the June 2003 commencement of the PRA, the government of New Zealand was to create a committee to review its impact on sex workers' occupational health and safety, human rights, and general working conditions (Fitzharris et al. 2008). Comprised of "a nun, sex workers, brothel operators, a general practitioner, an academic, a city councillor, a criminologist, a city health official, social workers, representatives of non-governmental organizations
(NGOs), and a retired policeman", the Prostitution Law Review Committee met in
March of 2004 and began their nearly five-year study (Fitzharris et al. 2008, 3). In
2005, they release their first report regarding the number of sex workers in New
Zealand at the time of decriminalization. Three years later in 2008, after conducting research with sex workers, brothel owners, NGOs, and community groups as well as in depth literature reviews on international prostitution policies, the Prostitution Law
Review Committee released its final report.
The 177-page document contains a number of important conclusions, namely: that despite concerns, decriminalization has not noticeably increased "the numbers of people working in the sex industry" (Fritzharris et al. 2008, 13); that there has not been an increase in "under age involvement in prostitution" (Fitzharris et al. 2008, 16); that the PRA "has had a marked effect in safeguarding the right of sex workers to refuse particular clients and practices" (Fitzharris et al. 2008, 47); that "90% of sex workers... felt they had legal rights under the PRA" (Fitzharris et al. 2008, 14); and that while a majority of sex workers felt that the PRA "could do little about violence that occurred ... sex workers were now more likely to report incidents of violence to
147 the Police" (Fitzharris et al. 2008, 14). These encouraging changes were achieved within just a few years of the passage of the PRA, however, the final report also identified some areas of improvement that were still necessary. Once such area was written employment contracts. During the Committee's research they found that employer/employee contracts were becoming more common in brothel situations, yet not all sex establishments had them and sometimes the contracts themselves were of
"questionable quality" (Fitzharris et al. 2008,158). The Committee articulated that more and better-quality contracts could serve to clarify and improve working conditions for brothel workers, either as employees or as independent contractors
(Fitzharris et al. 2008, 151).
While sex workers in New Zealand are not conceptualized as exploited victims
(as in Sweden), nor annexed to certain city locations and heavily regulated and policed
(as in the Netherlands), there remains a "deeply ingrained moral and social stigma attached to working in the sex industry" (Fitzharris et al. 2008, 152). Perhaps partially due to the successful international lobbying efforts of radical feminists, this stigma continues to contribute to a context in which sex workers may not disclose their work status to family or friends. Indeed, while decriminalization and the legal changes regarding the New Zealand sex industry have had tangible positive effects on sex workers' labour rights and working conditions, there are still larger areas of social change that are necessary for sex workers' rights to be fully realized. Sex workers have come close to achieving labour legitimacy in New Zealand, however, as the
148 Prostitution Law Review Committee articulates, "the sex industry does not enjoy the
same degree of social legitimacy as other industries" (Fitzharris et al. 2008, 154).
Conclusion
Both abolition and legalization are flawed legal, social, and economic models
for prostitution policy. The abolitionist Swedish system was strongly advocated for by
radical feminists and policy makers despite warnings from police services and sex
workers (Sambo 2001; Lunds 2007; Eriksson 2007). As it stands now, sex workers are
working in dangerous, violent, and underground areas with much less protection and
even greater negative social stigma (Gould 2002; RFSU 2003; Norway 2004;
Svanstrom 2004). Sex workers are forced to quickly enter sex transactions with
clients, as they need to protect them from arrest (Norway 2004; Ostergren 2004). In the legalized Netherlands, policy changes have brought with them some labour
protections and health standards but many sex workers and allies are speaking out
against the system (De Rode Draad n.d. a; Wijers 2004; Self 2004). Their criticisms
derive from the impacts of the forced/voluntary discourse and the reality that state
control and regulations are often times so insidious and oppressive that working
outside the system, in illegal areas, can present a better option (Norway 2004).
Additionally, the underground sex trade is thriving where undocumented and migrant
sex workers are unable to report abuse out of fear of deportation (van Doorninck 2002;
149 Gregory 2005). The social stigma against prostitution still creates a system of discrimination and alienation of sex workers.
Conversely, in New Zealand, where the industry is decriminalized, sex workers participated in the creation of the legislative changes and were therefore able to create a political and social environment that respects their dignity and right to safe employment (NZPC n.d.; NZPC 2002; OSHS 2004). As prostitutes have argued for decades, it is necessary to understand that sex work is work (Delacoste and Alexander
1988). It is a financial pursuit that many women look to for economic security
(Kempadoo 1998a). Sex workers receive payment for providing a service. The perception of sex work as a public nuisance and blight on society stigmatizes the profession and affects the reality of prostitution. Criminalizing prostitutes only serves to increase the risks they are forced to take and further marginalizes their activities.
Policies that penalize sex workers create the conditions for exploitation within the industry.
Not only are Sweden, the Netherlands, and New Zealand interesting policy examples that represent divergent legislative frameworks for prostitution, they are also interesting examples of how social perceptions and understandings of sex work and sex workers affect the chosen direction for legislation in the first place. Additionally, they provide insights into which policy directions were created with the input and endorsement of sex working communities and which directions have been most successful in supporting sex workers' rights post-policy implementation. By looking at the assumptions and perspectives that underlie and inform these three legislative
150 frameworks, as well as how and where sex workers factored into the process, we can better understand why the consequences of these models differ from their original policy-making intention. These case studies demonstrate that underlying assumptions and conceptualizations of sex work directly contribute to the creation and implementation of particular policy models. In deriving international lessons-learned, then, the importance of public perceptions and understandings of sex work and sex workers should not be underestimated before, during, and after the policy development process. Indeed, a focus of the sex workers' rights movement, in addition to legislative change, should be a reconceptualization of prostitution as sexual labour and sex workers' rights to safe, fair, and non-stigmatized work. Of equal importance is the inclusion of sex workers in the policy consultation, development, design, assessment, implementation, and evaluation stages. Who best to participate and give thoughtful and constructive feedback on policy than those who will be most affected by it?
While it would be unadvisable to directly transport any of the above policy examples into the Canadian context given the various cultural, socio-economic, political and environmental differences between the three countries, it is important to assess the successes and failures of each approach in order to discover which aspects would be most beneficial for Canadian policy makers to consider implementing and what other reforms must coincide legal ones. As Shaver argues, "legal reform alone cannot change or modify the broader social problems and attitudes... a full array of social reforms must also be developed and implemented" (Shaver 1985b, 498).
151 Chapter 5
From Vagrancy to the Subcommittee: Canadian Prostitution Policy Development and Transformation, 1860 to 2006
I should like to point out at the outset something that may seem obvious to some, or which may come as a surprise to others, but which in any event needs to be kept in mind throughout: prostitution is not illegal in Canada. We find ourselves in an anomalous, some would say bizarre, situation where almost everything related to prostitution has been regulated by the criminal law except the transaction itself... Parliament has made prostitution de facto illegal if not de jure illegal.
Chief Justice Lamer (ss. 193 and 195.1 [l][c] of the Criminal Code [1990] 1 SCR 1123)
For roughly one hundred years, the Criminal Code of Canada remained
relatively unchanged in its criminalization of prostitution-related activities. First
created in 1892, this federal statute united the provinces and codified a new legislative
framework for the country. Since its inception it has had a tremendous impact on sex
working communities across the country as it has left the act of prostitution legal
while criminalizing the activities that surround it. This chapter traces the creation,
development, and subsequent modifications to Canadian prostitution laws. It will
begin by focusing on the socio-political climate from 1860 to 1915, both before and
after Canada's first Criminal Code, to explicate the impact of the Contagious Diseases
152 Acts, the Moral Reform Movement, and the 'white slave trade' in the formation of this early legislation. While Canadian policies and public perceptions at the time were influenced by Britain and the United States, this chapter will focus on the Canadian context in order to situate present day discussions and policies on sex work. Few historians or sex work researchers have written about the history of prostitution in
Canada and there are a limited number of published texts on the topic. However, notable Canadian legal historians Constance Backhouse (1985,1991) and John
McLaren (1985) have both published expertly researched and influential articles that focus on sex work in the decades surrounding the creation of Canada's first Criminal
Code. As such, their work will be heavily drawn upon.
Following the social and legal reforms of the early part of the twentieth century, few other changes were made to the sections of the Criminal Code of Canada that regulated prostitution until the early 1970s. After introducing the complicated and somewhat contradictory history of the foundational legislation up to the 1920s, this chapter will move forward roughly 55 years and outline the key legislative changes and governmental reviews of prostitution policy from 1970 to 2006. Beginning with the 1972 repeal of the Vagrancy Laws and the 1978 R. v. Hutt Supreme Court decision, the chapter considers how, if, and when sex workers have been part of the policy review and development process. Canada's two principal federal reviews of the laws pertaining to adult sex work, the Special Committee on Pornography and
Prostitution (1985) and the Subcommittee on Solicitation Laws (2005), will be
153 67 • discussed in greater detail. The activities of the federal reviews, their committee compositions, data collection methods, and subsequent policy reports will be discussed in relation to the inclusion of sex workers in the process.
The chapter's final section presents the voices of Toronto-based sex workers and their allies. By drawing primarily on the experiences of current and former sex workers' who presented at the recent Subcommittee on Solicitation Laws hearings, this section displays their procedural and structural critiques and assessments of the review process and the Subcommittee members. Transcribed interviews with sex worker activists and allies from Maggie's: The Toronto Prostitutes' Community
Service Project provide the qualitative data for the chapter's final section. In solidarity with sex worker activists, this chapter puts forth the argument that in order to successfully develop legislation that supports the social, political, and economic interests of sex workers, sex-working communities need to be active members of the policy development process.
History and Development of Sex Work Legislation in Canada (1860 to 1915)
The period leading up to the turn of the twentieth century represents a time of major growth and change in Canadian prostitution-related offences. Legal historian
John McLaren (1986) argues that before criminal law became the jurisdiction of the
67 This chapter will not discuss the Committee on Sexual Offences Against Children and Youth (the Badgley Committee, 1984) and the Federal/Provincial/Territorial Working Group on Prostitution (1992) as these two reviews focused primarily on youth engaged in prostitution.
154 federal government in 1867, the criminalization of prostitution-related activities in
Canada was primarily focused in two areas: first, the provisions were aimed at
reducing residential and street prostitution, or vagrancy; and second, the laws set out
to protect girls and women under 21 years of age from defilement by false pretences
(McLaren 1986, 126). In the first instance, the purpose of the laws was to remove
prostitutes from the streets and to reduce "land use conflicts and problems of public
disorder associated with the operation of brothels" (McLaren 1986,127). At the time,
prostitutes were classified as 'vagrants' and were subject to criminal charges and
detention (McLaren 1986, 127; Backhouse 1991, 234). In the second instance, the
laws were, in part, based on a social understanding of the monetary and proprietary
value of women in relation to a male counterpart, namely their husband, brother, or
father (McLaren 1986). The laws, then, were enacted to protect the economic interests
of men and not the women themselves. McLaren further argues that the dominant
values of the community (read: middle class values) towards prostitution differed
depending "on how far prostitution was seen as a direct threat to respectable members
of the population, or necessary to local conditions" (McLaren 1986,127). In cities and
communities where certain levels of prostitution were tolerated there was "a recognition of the need to service the large surplus male population..."68 (McLaren
68 Backhouse's research has interestingly shown, "...nineteenth-century journals occasionally noted that prostitution kept unmarried men from the more dangerous vice of masturbation... and provided husbands with sexual outlets when their wives were unwilling" (Backhouse 1985,391).
155 1986,127). Conversely, in cities where prostitution was deemed a nuisance, the police focused their attention on the prostitutes themselves.
Canadian criminal laws and social values at the time were greatly influenced by the moral and social purity movements in the British motherland, and later on, the panic surrounding 'white slavery' in the United States69 (McLaren 1986). According to McLaren, there were two key differences between Canadian and British laws on prostitution. First, in Canada the very fact of being a prostitute was a crime so that once it could be demonstrated that a woman was a prostitute she would be charged with a 'status' offence, regardless as to her actions (McLaren 1986; Backhouse 1991).
Feminist legal historian, Constance Backhouse (1991), argues that 'status' criminals in nineteenth-century Canada were "subject to detention simply because she or he belonged to a wide-ranging class of 'undesirables and misfits' who were thought to threaten the social order" (Backhouse 1991, 230). Indeed, prostitution was considered a 'lifestyle crime' that "threatened to undermine morality" (Backhouse 1991, 234).
Conversely, in England, prostitutes could only be charged if they were causing some sort of public disturbance or if they were in violation of a law, thereby making the prostitutes' actions criminalized and not the person herself (McLaren 1986). Second, in Canada anyone who was an inmate of or frequented a common bawdyhouse could be charged whereas in England only the brothel keepers were criminalized (McLaren
1986).
69 McLaren argues that legal and political influence from Britain was stronger at the end of the nineteenth century whereas influence from the United States grew in the early parts of the twentieth century (McLaren 1986, 126).
156 Between 1864 and 1869, in response to statistics that showed Great Britain as having the highest levels of venereal diseases in the world, the country implemented a
series of new statutes aimed at stopping their spread both locally and abroad70
(Wlakowitz 1982, 74-75; Ringdal 2004, 262-263). Soon to be known as the
Contagious Diseases Acts (CDA), the statutes reflected Victorian values and attitudes regarding women, sexuality, and social class at the time (Walkowitz 1982, 70). Under the CD A, prostitution was constructed as "public sexual health problem" (Phoenix
1999, 28) and prostitutes' bodies where seen as "a site of moral and medical degeneracy" (Scoular 2004, 350). As such, the Acts presented new frameworks for regulating prostitution in Europe in an attempt to mitigate its negative consequences.
These efforts meant that women deemed to be 'common prostitutes' would be forced to comply with medical and police registration systems and subsequent bi-monthly internal medical exams (Walkowitz 1982, 2). If she were found to have a venereal disease, she would be detained in a certified lock hospital for up to nine months
(Walkowitz 1982, 2). Interestingly, there were no comparable medical checks or detainments for male clients. After a decade and a half of organizing and campaigning against the sexual double standard of the Acts and against the control of police and medical professionals over women's bodies, spear-headed by feminist pioneer
Josephine Butler, the British CDA were repealed in 1886 (Walkowitz 1982,137-138).
70 According to historian Judith R. Walkowitz, the regulatory agenda of the first statutes passed in 1864, initiated by state bureaucrats and military authorities, differed from the more ideological agenda of the 1867 statutes, which were primarily in response to civilian doctors' political campaigns to broaden the geographic and moral scope of the CDA (Walkowitz 1980, 69).
157 The European campaign against the CDA was primarily based on the premise that prostitutes were victims of male licentiousness and promiscuity that should not be further marginalized or penalized (Walkowitz 1982, 146). The repeal campaign's conception of prostitutes as the victims of male contamination was in stark contrast to the CDA's positioning of prostitutes as the vectors of disease.
Following the British Contagious Diseases Acts, Canada passed its own CDA in 1865 (Backhouse 1985; Backhouse 1991). Backhouse argues that it is likely the
Canadian government followed the British example because it received pressure from the Royal Navy who were concerned that their officers might contract a venereal disease in the colonies (Backhouse 1985, 390). For a very brief five years, from 1865 to 1870, Canada East and Canada West turned from an abolitionist model of criminalizing prostitution in an attempt to eradicate it, to a regulatory framework of trying to manage the trade (Backhouse 1991, 235). According to Backhouse,
"Accepting that prostitution was impossible to stop, the focus shifted to controlling the trade and regulating its negative impacts"71 (Backhouse 1991, 235). Similarly,
McLaren argues that the Canadian CDA was not designed with a moral abolitionist purpose but instead "was the result of the concern of government... to contain venereal disease in military and naval cities and towns" (McLaren 1986, 127). Similar to the British CDA, in Canada it became allowable for police to detain prostitutes that
71 Backhouse has found that there was little controversy over the passage of the CDA in Canada. Indeed, "There was no record of any Canadian legislative debate, and it took only 11 days for the bill to pass through first reading to third reading. (...) Furthermore, knowledge of the act was not wide spread" with even judges seemingly unaware of its existence when handing out sentences (Backhouse 1985, 391).
158 were suspected of having a venereal disease (McLaren 1986,127; Backhouse 1991,
235). Prostitutes were to be detained in specially certified hospitals for periods of up to three months but ironically no hospitals were certified during this time. In effect, the
Canadian CDA was never really enacted and expired with very little impact in 1870
(McLaren 1986; Backhouse 1991). These brief five years represent Canada's one and
only attempt to legalize and regulate prostitution to date.
In 1869, the year before the CDA was to expire, Canadian politicians passed a
law intended to prevent occurrences of'white slavery'72 and prostitution (Backhouse
1985; Backhouse 1991). Titled 'An Act Respecting Vagrants,' the Vagrancy Act maintained the existing status offence for prostitution73 (Backhouse 1991, 236). The
Vagrancy Act further contained new provisions that criminalized men found to be
'living on the avails' of prostitution (McLaren 1986,131). On paper, the Vagrancy
Act was relatively more equitable as it equally targeted and criminalized the procurers, prostitutes, and managers/owners of bawdyhouses. In practice, though, women were charged disproportionately more than men. As Backhouse's research indicates, "In the latter half of the nineteenth-century women prostitutes represented 97.5 per cent of
72 Reformers in Europe and North America came up with the term 'white slavery' to describe the moral panic of white girls and women being lured into prostitution. There are conflicting reports as to the extent of white slavery and to how much it was an accurate description of women's entry into prostitution (Backhouse 1985; McLaren 1986). 73 "An Act respecting Vagrants" criminalized: "all common prostitutes, or nightwalkers wandering in the fields, public streets or highways, lanes or places of public meeting or gathering of people, not giving a satisfactory account of themselves; all keepers of bawdy houses and louses of ill-fame, or houses for the resort of prostitutes, and persons in the habit of frequenting such houses, not giving a satisfactory account of themselves; and all persons who have no peaceable profession or calling to maintain themselves by, but who do for the most part support themselves by the avails of prostitution" (Backhouse 1985, 394-394).
159 those charged, while the number of male customers registered only a paltry 2.5 per cent" (Backhouse 1991, 237).
Over the decades leading up to the turn of the twentieth century, Backhouse and McLaren similarly argue that there were major social and political changes at the federal level that dramatically altered prostitution laws74 (McLaren 1986; Backhouse
1991). The changes occurring between the 1869 Act Respecting Vagrants and the
1892 ratification of Canada's first Criminal Code, according to Backhouse, were primarily in "response to a growing outcry from middle-class social reformers against the sexual exploitation of women" (Backhouse 1991, 255). The campaign for social reform, she continues, was really an attempt to eradicate "sexual double standards" as it recognized that where women's sexuality and sexual freedoms were limited to
"procreative and heterosexual activity inside marriage", male sexuality "was viewed as natural, more legitimate, and, at times, even uncontrollable" (Backhouse 1991,
255). The social and sexual reformation goals were to encourage the same (read: female) standard of chastity and purity onto both genders; eradicating prostitution was seen as a good place to start.
Similarly, McLaren's research has demonstrated that during the 40 years between 1867 and 1917 the country's prostitution laws developed into a "complex set of provisions which purported to protect females in general from the wiles of the procurer, pimp and brothel keeper, both within Canada and across international
74 At the time there were provisions in the provincial legislation that allowed municipalities to govern their local "prostitution-related activities and establishments" (McLaren 1991, 131).
160 borders, and which gave police wide powers to curb institutional prostitution"
(McLaren 1986, 126). The growth of the criminalization of activities surrounding prostitution was also accompanied by an increase in the penalties for convictions.
According to McLaren, the reason for the noteworthy changes to the laws was due primarily to a change in social attitudes regarding both women and the family
(McLaren 1986). There was a growing concern about the "moral dangers of the
'modern world,' and in the channeling of that concern into campaigns for social purity in general and sexual continence in particular" (McLaren 1986,126). Moral reforms at the time saw the strengthening of family values as a way to 'save' society from moral decay. In this context, women were viewed as "the guardians of the family's welfare and as representing the moral conscience of the community... In particular, their supposed tendency to sexual passivity and disinterest had to be shielded from those males who were only too ready to compromise it" (McLaren 1986, 129). In this way,
Canadian laws pertaining to prostitution were intended to protect vulnerable and victim (female) prostitutes with a simultaneous effort to suppress and abolish the trade by criminalizing the (male) procurers and traffickers. Roughly one hundred years later, radical feminists would adopt this abolitionist legal and ideological framework.
Largely due to the lobbying efforts of key moral reformers at the end of the nineteenth century, and with the support of the leading Protestant churches, Canada's first federal Criminal Code in 1892 contained "the most comprehensive system of offences for protecting young women and girls from sexual predators" (McLaren
1986,135-6). These provisions included, prohibition of'carnal knowledge' of girls
161 under fourteen for any reason; the seduction of 'previously chaste girls' fourteen to sixteen years of age as well as women under twenty one 'with promise of marriage'; women who were under twenty one and were not prostitutes or 'of known immoral character' were also protected from procuring; no women or girl could be enticed into a bawdy house; no woman or girl could be procured into being a prostitute; and girls under sixteen were protected against procurement by their parent or guardian for the
'purposes of carnal knowledge' (McLaren 1986, 136). Bawdyhouse offences, which had been dealt with under the previous Vagrancy Act, were also made stricter as they
n c were subsumed into the Criminal Code.
According to McLaren, Canada's early legislation was lacking in a number of key ways. He argues: ... the reformers and legislators ignored the economic and social forces which led women and girls into prostitution. In their concern to apply middle class morality to working class problems, they failed to understand that if this was a moral problem it was one of the social immorality of consigning working class families, and females in particular, to the type of living conditions and lack of economic opportunity in which prostitution was seen as an attractive option. (McLaren 1986, 137)
Not only did the language of the Criminal Code lack an analysis of the importance of economic context, it was further misguided in its understanding of female passivity and sexual innocence of young working class girls:
By the age of twelve the surveillance of working class children in the Victorian era by their parents was rare. They were expected by that age to earn their keep, which for girls often meant working outside of the family as domestic
75 Bawdyhouse offences were not expanded to "cover the case of a landlord permitting his premises to be used as a bawdy house" (McLaren 1986, 136).
162 servants. Within the crowded and squalid conditions in which they had to live with their families, sexual exploration and experience were by no means rare. In addition to this they were not infrequently subjected to sexual abuse by their employers. (McLaren 1986, 138)
Economic class was further influential in the ways in which Victorian men understood women's and girls' bodies as available to them. That is, while middle class girls were considered 'off limits', working class girls were seen as acceptable partners for the sexual adventures of middle class men and there was little moral problem with a respectable family man seeking the services of a working class prostitute (McLaren
1986). Indeed, there was a distinct class-based double standard; the purity of middle class girls was dependant on the lack of purity of working class girls (McLaren 1986,
128). As innate and uncontrollable, male sexual urges needed to be satisfied and it was more socially acceptable for them to be satisfied by working class girls than those from the middle classes.
Interestingly, despite the moral reform rhetoric of saving innocent girls and women from the evils of carnal knowledge and those who would force this upon them, the first Criminal Code did not contain legislation directed at the customers of the prostitutes. It is here that the unique, and somewhat contradictory, social positioning of prostitution is most apparent. On the one hand, prostitutes were seen as victims in need of protection and it was argued that the laws should reflect this. On the other hand, it was thought that prostitution provided a necessary and inevitable outlet for male sexual needs, which should not be criminalized. Indeed, despite the moral reform movement's successes in many other areas, the view of prostitution as necessary and
163 inevitable was still strongly held. It was beneficial to punish those who exploited prostitutes, but not those "merely satisfying sexual urges" (McLaren 1986, 139).
Another interesting, and somewhat contradictory, position on prostitution can be seen in the criminalization of prostitutes themselves. If women and girls were victims in need of protection from procurers and traffickers, why were they too being jailed and penalized? McLaren argues that the answer "can be found in the schizophrenic
Victorian middle class view of prostitution. Although the reformers were convinced that working class girls and women were all too often being led into prostitution by rogues and bounders, they were still inclined to believe that some of the blame had to be attached to the lax moral values of the class" (McLaren 1986, 139).
With the growth of the moral reform movement's efforts to abolish forced prostitution and 'white slavery' in the early 1890s, reformers and allies were lobbying police chiefs, mayors and other local politicians to join their cause (McLaren 1986,
147). Heightening the provisions against procuring and living on the avails were becoming key focal points of the movement to protect women and children (Hanger and Maloney 2006, 38). Known as the American Progressive Era (1900 to 1918), this time period marked "Western society's most zealous and best-recorded campaigns against prostitution" (Rosen 1982, xi). Historian Ruth Rosen (1982) argues that it was within these decades that the earlier conception of prostitution as a 'necessary evil,' which could be regulated, transformed into a greater moral problem and broader
'social evil,' which needed to be prohibited (Rosen 1982). In the United States in particular, white slavery narratives and stories of female vulnerability to male cruelty
164 were commissioned into books, plays, pamphlets, and films consumed by thousands of
(predominantly white) Americans (Donovan 2006; Rosen 1982). Definitions of what constituted 'white slavery,' though, were often confused and conflated with instances where women worked in this capacity of their own accord (Rosen 1982, 113).
Norwegian historian Nils Johan Ringdal (2004) argues that American anti-white slavery campaigners "frequently used wild estimates and seldom distinguished between prostitution as a profession, prostitution as a source of casual supplementary income, and general promiscuity" (Ringdal 2004, 313). Sheila Jeffreys (1997) similarly argues that women thought to be 'white slaves' in the United States were often not forced into prostitution "by deception or force. The women usually knew... that they would be prostituted" (Jeffreys 1997, 8). American policies on prostitution and trafficking, however, were largely created in response to the claims of white slavery and the exploitation of women, and not the reality of it. Possibly the most well known example of this was the 1910 'White Slave Traffic Act', otherwise known as the Mann Act, which prevented women from being transported across state borders for
'immoral purposes' (Donovan 2006, 1, 71).
In Canada, by 1913 the reform movement's efforts to criminalize and punish men who coerced or trafficked women into prostitution were also beginning to prove successful. The newly elected Conservative Government of the day passed the
Criminal Code Amendment Act, which increased the severity of a number of exploitation offences relating to procuring. Whipping could now be inflicted on those convicted of procuring and the stipulation that the victim needed to be below the age
165 of twenty-one was dropped (McLaren 1986, 149). Further, one could now be arrested for procuring without a warrant and a new offence of 'living wholly or in part' on the avails of prostitution was added and "supported by a presumption of guilt where the accused lived with or was habitually in the company of prostitutes with no visible means of support, or residing in a house of prostitution" (McLaren 1986,149). Also added to the Canadian Criminal Code was the provision that landlords could be charged if they did not evict tenants suspected of operating a bawdy house as well as new rules against being 'found in' a bawdy house, as opposed to the earlier
'frequenting' (McLaren 1986,149). It was during this time that the official Canadian approach to prostitution policy became fully entrenched as prohibitionist; that is, it began to criminalize all parties in the commercial sexual exchange, rather than just the sex workers or just the clients.
In the decades following these 1913 changes, Canadian governments and policymakers did little to modify the Criminal Code in relation to prostitution. In effect, during the 55 years between 1860 and 1915, Canada's laws on prostitution developed from more of an abolitionist model of segmented offences directed at protecting young women and girls and reducing street nuisances to a complicated and prohibitionist series of unlawful activities with stricter penalties for all in violation.
For the subsequent 55 years between 1915 and 1970, these laws were to remain almost entirely unchanged.
166 Contemporary Changes to Canada's Sex Work Legislation (1970 to 2005)
In both 1983 and 2003, the Canadian federal government initiated major
national reviews of its sex work legislation (Canada 1985; Hanger and Maloney 2006).
While some of the recommendations put forward by the review committees have
suggested progressive policy change for improved social conditions for sex workers, this section will demonstrate that these recommendations have not been enacted by
government. If anything, over the past thirty years, the federal government has
intensified rather than reduced its prohibition and criminalization of prostitution- related activities.
The Beginning of Change: Repeal of the Vagrancy Laws and Regina v Hutt
Deborah Brock (1998) argues that the 1967 Royal Commission on the Status
of Women (RCSW) marked the federal government's first real effort at investigating the effects of gender inequality in certain areas of the law, namely criminal, marriage,
and tax law (Brock 1998, 26). In the RCSW's study of the impact of criminal law on women, it found that the old prostitution sections of the Vagrancy laws were
discriminatory as they "restricted the freedom of women in public spaces, allowed the
arbitrary use of police powers, and labelled women as prostitutes through the
imposition of a criminal record..." (Brock 1998, 27). Since it had remained almost entirely unmodified since 1892, the Vagrancy section of the Criminal Code relating to
sex work still read that a woman, if found alone at night, needed to 'give a good
167 account of herself or else risk arrest (Robertson 2003, 2). The RCSW argued that under the Vagrancy laws, women were being charged for who they were presumed to be and not for what they actually did (Brock 1998, 27). Further, the laws were deemed doubly discriminatory towards women as they were the only ones who could be charged and there was no comparable legislation directed at male clients (Sturdy 1997, n.p.).
Around the same time as the RCSW's report, the courts were finding that police officers were unfairly subjecting women to overnight detentions and mandatory medical exams, yet the officers were within the legal purview of the Vagrancy laws
(Brock 1998, 29-30). Despite minor changes, including the eventual elimination of the medical exams, the prostitution-related sections of the Vagrancy laws were not fully repealed until 1972 when the whole of the Vagrancy legislation was revoked (Brock
1998, 30). It was argued that the laws were a violation of the 1960 Bill of Rights
(Robertson 2003, 2; Jeffrey 2004, 85). In order to replace the now missing Vagrancy laws, Minister of Justice Otto Lang, introduced a different piece of legislation, this one directed at soliciting. The new soliciting law, then section 195.1 of the Criminal
Code, read, "Every person who solicits any person in a public place for the purpose of prostitution is guilty of an offence punishable on summary conviction" (Sturdy 1997, n.p.; Brock 1998, 30; Robertson 2003,2). Thus, in 1972, prostitution was no longer considered a status offence and instead the law criminalized the activities that
76 In addition to the newly created law against soliciting there was still legislation criminalizing bawdyhouses and procuring within the Criminal Code as these laws were separate from the Vagrancy sections and therefore not revoked.
168 surround it - asking for or offering to sell sexual services in public. While the laws retained their prohibitionist frame, the removal of the status offence marked the beginning of the Canadian predicament in which it is lawful to 'be' a prostitute but difficult to legally, and safely, work as one.
In the years directly following the ratification of the 1972 solicitation law, both the police and the courts were confused and unsure as to how to interpret the legislation (Jeffrey 2004, 85). It was unclear as to what exactly qualified as
'solicitation' (was it a wink, a nod, a gesture, an approach?) and whether or not male prostitutes could also be charged (Robertson 2003). Indeed, despite the gender neutrality in the wording of the law, the police were still predominantly arresting and charging women (Boritch 2003, 95-96). After six years of confusion and conflicting court rulings, in 1978, the Supreme Court ruled in Regina v. Butt that in order to be criminally charged, solicitation had to be 'pressing and persistent' (Sturdy 1997;
Boritch 2003, 96; Jeffrey 2004, 85). This ruling dramatically reduced police powers of arrest as it was now necessary to prove pressing and persistent solicitation attempts.
The Supreme Court further ruled that a prostitute can be a person of either sex and that a car was not to be considered a public place, making it extremely difficult for police to continue to entrap street-based sex workers in unmarked police cars (Brock 1998,
45-47; Robertson 2003, 3). Residents groups, politicians, and the police banded forces to publicly critique the now almost unenforceable law: residents groups charged that they were seeing a growth in street prostitution; municipalities attempted to control the
169 trade through city by-laws (which were later deemed unconstitutional); and the police
complained that they were left with little power to lay charges (Brock 1998, 45-47).
With mounting pressure from the courts, police associations, residents
groups, and mayors of the country's large cities, in 1982, Minister of Justice Mark
MacGuigan delegated the issue for public consultation to the House of Commons
Standing Committee on Justice and Legal Affairs (Brock 1998, 46). After hearing
from both pro-criminalization (primarily residents and police associations) and anti-
criminalization (primarily feminists, civil libertarians, and lawyers) advocates, the
Standing Committee, who had been instructed to consider street solicitation only, had
concluded in its report that prostitution more generally "warrants complete review in the near future" (Brock 1998, 49). The social context of the day was one in which prostitution was routinely making the media headlines as an issue of public concern
and residents groups across the country were increasingly complaining about the local prostitution 'problem' (Brock 1998, 50-55).
It was around the same time, and partially in response to the public focus on
sex work, that sex workers themselves were beginning to form organizations across
North America. The first known sex workers' rights organization, COYOTE (Call Off
Your Old Tired Ethics), was founded in 1973 in San Francisco by sex worker activist
Margo St. James (Jenness 1993; Chapkis 1997, 182). Four years later Canada saw its first sex work organization. In 1977 Margaret Dwight-Spore formed the Toronto- based BEAVER (Better End All Vicious Erotic Repression) (Brock and Scott 1999,
8). The short-lived BEAVER, which soon changed its name to CASH (Committee
170 Against Street Harassment), dissolved by the early 1980s (Brock and Scott 1999, 8).
Not long after, in 1982, sex workers and allies in Vancouver created the Alliance for the Safety of Prostitutes77 (ASP) and in late 1983, Toronto prostitute Peggy Miller founded the Canadian Organization for the Rights of Prostitutes78 (CORP) (Brock
1998, 56-59). From the outset CORPs mandate was to challenge the federal prostitution laws and the ways in which police were choosing to (or choosing not to) enforce them (Brock and Scott 1999, 9). Sex worker activist Valerie Scott argues that in the early 1980s, just after the 1978 'pressing and persistent' solicitation ruling, police officers in major urban areas, who were frustrated by their decreased powers of arrest, intentionally stopped charging street-based sex workers and instead sat back as resident's organizations began public and political campaigns demanding tougher criminal laws (Brock and Scott 1999, 9). At the same time, city life was beginning to gentrify as middle class residents were increasingly moving from the suburbs into what were then becoming more desirable downtown locations (Brock and Scott 1999,
10). Inner city areas, which had been home to sex workers and the urban poor, were becoming contested spaces with residents from mixed socioeconomic backgrounds.
The national 'problem' of prostitution needed a national solution (Brock 1998, 51-59).
Additionally, the second wave of the women's movement was beginning to debate and organize around issues of gender and sexuality. These extra- and intra-movement
77 Alliance for the Safety of Prostitutes would later divide into ASP and POWER (Prostitutes and Other Women for Equal Rights (Brock and Scott 1999, 11) 78 CORP would later splinter into Maggie's: The Toronto Prostitutes' Community Service Project and SPOC (Sex Professionals of Canada).
171 debates, commonly called the 'sex wars', would see the regulation of prostitution as contested terrain (Vance 1984; Duggan and Hunter 1995).
New Directions in Policy Recommendations: The Fraser Committee and Bill C-49
In June of 1983, Minister of Justice Mark MacGuigan declared that "there was a wide divergence of opinions as to solutions" on prostitution and so appointed the
Special Committee on Prostitution and Pornography to conduct a large-scale federal review (Jeffrey 2004, 85). Commonly called the Fraser Committee after its chairperson Paul Fraser, the Committee's mandate was to research, through a socio- legal frame, pornography and prostitution in Canada (Canada 1985). The Committee's terms of reference were:
1. to consider the problems of access to pornography, its effects and what is considered to be pornographic in Canada; 2. to consider prostitution in Canada with particular reference to loitering and street soliciting for prostitution, the operation of bawdy houses, living off the avails of prostitution, the exploitation of prostitutes and the laws relating to these matters; 3. to ascertain public views on ways and means to deal with these problems by inviting written submissions from concerned groups and citizens and by conducting meetings in major centres across the country; 4. to consider the experience and attempts to deal with these problems in other countries, including the U.S., European Economic Community and selected Commonwealth countries such as Australia and New Zealand; 5. to consider alternatives, report findings and recommended solutions to the problems associated with pornography and prostitution in Canada. (Canada 1985, 5-6).
172 Brock argues that the creation of the Fraser Committee can be understood from either cynical or pluralist perspectives: regarding the former, it could be seen as a political manoeuvre to stall on the controversial implementation of new legislation and policy on prostitution during an election year; regarding the latter, the Fraser
Committee could represent the federal government's attempt to listen to the opinions
of its constituents on two very contentious topics (Brock 1998, 60). To date this has been the largest venture of its kind. On April 22, 1985, after 20 months, 1.6 million
dollars, and hundreds of presentations in 22 Canadian locations, the committee released its two-volume, 753 page controversial report (Canada 1985; Lowman et al.
1986, xiv; Jeffrey 2004). Only half of the report, though, focused on prostitution, the
other half was directed at the effects of pornography (Canada 1985). The report drew
heavily on direct quotes and hundreds of testimonies from residents' organizations,
religious groups, churches, national and regional women's groups, children's
advocates, researchers, university societies, professional associations, community
groups, aldermen, public officials, mayors, police officers and commissioners, and
concerned citizens (Canada 1985). Additionally, the Department of Justice
commissioned five regional research studies on sex work as well as a national survey
on public attitudes toward the issue (Brock 1998, 63).
Compared to the next major review of the adult prostitution-related sections of
the Criminal Code (the Subcommittee on Solicitation Laws to be discussed below), the
Fraser Committee heard from only a small number of sex workers in their
deliberations (Canada 1985). This could have been in part a result of the lack of active
173 sex worker organizations and collective sex worker voice at the time or it could have been a result of the lack of effort by the Committee to hear from prostitutes themselves. With the abolitionist social and legal positioning of prostitutes as victims, it is possible that Fraser Committee members did not actively consider the importance and necessity of sex workers' input in the creation of sex work policy. In retrospect,
John McLaren, a member of the Fraser Committee himself, admits, "... we had all too little input from important players in the world of commercialized sex, such as prostitutes... While this shortcoming was to some extent offset by the research done for us through the Department of Justice, it meant that we lacked that element of personal contact... " (McLaren 1986,43). McLaren goes on to acknowledge that even the research they were able to procure was disproportionately focused on one particular aspect of the industry, street prostitution:
The deadline of six months which was set down for the researchers... was such that it was possible to collect a satisfactory amount of data only on street prostitutes. .. .this left large gaps in our knowledge about off-street prostitution, whether in the context of residential service, escort agencies, hotels, bars or massage parlours. (McLaren 1986, 44)
This focus on street-based sex work misrepresents the heterogeneity of the sex industry and the locations in which it is practiced. Indeed, it has been well documented that street based sex work only accounts for 5% to 20% of all prostitution activities
(Shaver 1993; Lowman 2005, 7; Hanger and Maloney 2006, 5; Childs et al. 2006,17).
Despite the relatively few sex worker presentations to the Fraser Committee,
Brock argues that these presentations did have an impact on the Committee's decisions as well as their understanding of the work relations of prostitution (Brock
174 1998, 70). She writes, "It was certainly new to have prostitutes speak for themselves in this context, rather than merely having others, supposedly representing their best interests, speak on their behalf' (Brock 1998, 70). One such example is that of sex worker activist and CORP founder Peggy Miller who spoke to the Committee on
February 6, 1984 (Brock and Scott 1999, 13).
Public and media reactions to the release of the report and its recommendations varied considerably (Lowman et al. 1986; McLaren 1986; Brock 1998; Jeffrey 2004).
John Lowman (1998), who has researched prostitution in Canada for over 25 years and presented at the Fraser Committee hearings, argues that the Committee "rejected conventional wisdom" in its recommendations stating, "...the Fraser Committee concluded that the main problem with Canadian prostitution law is that it is at odds with itself. If prostitution is to remain legal, the legislature must decide where it is to be permitted, and under what circumstances" (Lowman 1998, n.p.). In order to make recommendations on policy directions, the Committee considered the three key models of reform - criminalization, decriminalization, and legalization - and argued against the exclusive application of any one of them (Canada 1985, 515-520;
Robertson 2003, 8). Indeed, they noted major reservations against each: criminalization would prove to be impossible to enforce and there was not enough public support for it; decriminalization was seen as a 'romantic notion' that would not adequately address aspects of harm and exploitation in some areas of the industry; and they argued against regulation or legalization based on a concern for the infringement of sex workers' civil liberties as seen in Nevada and because it turns the state into a
175 pimp (Canada 1985, 515-520; Robertson 2003, 8). Instead, the Committee opted to recommend a blended model of reform that would include aspects of each (Robertson
2003, 8).
The media, however, immediately picked up on the most controversial of the report's 105 recommendations - the loosening of brothel, pimping, and licensing laws
(Canada 1985, 538-557; McLaren 1986, 50; Brock 1998, 75; Robertson 2003, 7-8).
The Committee argued that it should be allowable for "small numbers of prostitutes to
organize their activities out of a place of residence" and that the Criminal Code should not prevent the "provinces from permitting and regulating small-scale, non-residential
commercial prostitution establishments employing adult prostitutes" (Canada 1985,
684). At the same time, the Committee proposed to increase the penalties for street-
based sex work and recommended that cars should be considered public places
(Canada 1985, 538-539). By reducing the criminal laws that prohibit indoor prostitution, and by increasing the criminalization of outdoor sex work, the Committee
was attempting to offset the nuisance aspects of the street-based trade as women could then work from home (Robertson 2003, 9). While some women's organizations and
civil liberties associations as well as individual social workers and prostitutes were in
support of the findings, major criticisms came from radical feminists, municipal politicians, and representatives of anti-prostitution community and religious groups
(McLaren 1986).
In 1984, while the Fraser Committee was conducting its cross-country review, the Conservative Party of Canada won a majority federal government (Jeffrey 2004,
176 90). The newly appointed Minister of Justice John Crosbie announced that he was working on a prostitution bill to replace the solicitation legislation and might introduce it to parliament before the Fraser Committee completed its activities (Jeffrey 2004,
91). As it was, Minister Crosbie introduced Bill C-49 less than a week after the release of the Fraser Committee's final report (Brock 1998, 76). As will be discussed further below, Crosbie's prostitution bill would come to have devastating effects on prostitutes working in Canada.79 Fraser Committee member John McLaren argued against Bill C-49 saying it, "departs from both the wording and the spirit of the draft provision suggested by the Committee..." (McLaren 1986, 52).
The main crux of Crosbie's Bill C-49 was its proposal to make
'communication' for the purpose of engaging in prostitution a Criminal Code offence for both prostitutes and clients and to eradicate the earlier ruling that solicitation had to be 'pressing and persistent' (McLaren 1986, 52-53; Jeffrey 2004, 91). Without the stipulation of 'pressing and persistent' solicitation, sex workers would be liable for arrest at the mere suggestion of sex. Additionally, Bill C-49 proposed to turn parked cars into 'public' places making it illegal to engage in paid sex within the confines of your own car (McLaren 1986, 53). The bill read, "every person who in a public place or in any place open to public view" (therefore your own car) "stops or attempts to stop any motor vehicle" (...) "stops or attempts to stop any person or in any manner communicates or attempts to communicate with any person for the purpose of
79 Amusingly, this Minister of Justice solicited the support of Canadian born pornography actress Shannon Tweed, Playboy Magazine's 1982 Playmate of the Year, to bolster support at a fundraising campaign party for him (Burstyn 1987, 168).
177 engaging in prostitution or of obtaining the services of a prostitute is guilty of an offence punishable on summary conviction" (McLaren 1986, 52-53). The purpose of the proposed legislation to criminalize communication was to reduce the visibility of street-based sex work (Sturdy 1997). Bill C-49, which focused exclusively on the public aspects of selling sexual services, would increase the criminalization of prostitution activities with no recognition that prostitution itself is not illegal. Further, it did not include allowances for other locations from which prostitutes could work as recommend by the Fraser Committee.
Within six months, in November of 1985, Bill C-49 was passed by Parliament
OA with a wide majority vote and shortly after became section 195.1 of the Criminal
Code (now s. 213) (Brock 1998, 78). Interestingly, the approved bill included a stipulation that "comprehensive review of the law is to be undertaken by a committee designated by the House of Commons" within three years of it coming into effect
(Moyer et al. 1989, 5). As required, in 1987 and 1988 the federal government commissioned a two-year national review to determine if there had been "a reduction in the nuisance of street prostitution" as a result of the new legislation (Robertson
2003, 13). The review's report, titled Street Prostitution: Assessing the Impact of the
Law, concluded there was a drastic inequity in enforcing prostitution laws and that many sex workers "simply have longer criminal records" (DoJ-C 1989, 118). While the review found that there was a reduction in the number of street-based sex workers in some cities (specifically, Montreal, Quebec City, Niagara Falls, Ottawa, and 80 111 for to 35 against (Brock 1998, 78).
178 Halifax), in other cities there was reportedly no decrease in sex workers (Toronto,
Vancouver, Winnipeg, Regina and Calgary) (DoJ-C 1989, 118). Even the reduction of prostitution in some areas could have been misleading, though, as some prostitutes began working from indoor locations and others became more used to the harsher legal conditions as they adapted to the law (Brock 1998, 79-80). The review concluded that the criminalization of communication under Bill C-49 had not succeeded in curbing prostitution as it was originally intended, citing, "Perhaps the clearest conclusion of this evaluation is that police enforcement of the new S. 195.1 did not suppress the street prostitution trade in most cities. The main effect was to move street prostitute from one downtown area to another, thereby displacing the problem" (DoJ-
C 1989, 119).
One of the stated objectives of Bill C-49 was to equally apply the federal prostitution laws to both clients and prostitutes (DoJ-C 1989, 115). In actuality, though, the review found that female prostitutes were still being disproportionately
O 1 charged and that these charges were being laid by undercover police officers circulating in unmarked cars in known prostitution areas (DoJ-C 1989, 115-116).
According to the review, policing services argued that the reason why considerably more sex workers were charged than clients was in part do to the "lack of experienced policewomen able to act as prostitute decoys" and also that "the processing of customers is more time consuming and labour intensive than charging prostitutes"
81 The report concluded that in Vancouver, Halifax and Calgary less than 25% of charges laid were on customers (DoJ-C 1989, 116)
179 (DoJ-C 1989, 116). Regarding male sex workers the review stated that police officers
deemed male prostitutes to be "less of a nuisance and more difficult to infuriate than the female trade," whereas critics of this perspective, as cited by the review, "suggest that the homosexual trade has been left alone because many police officers are uneasy
about posing as male prostitutes or customers" (DoJ-C 1989, 116).
In addition to being disproportionately charged and displaced under the new
legislation, female sex workers, many of whom had only started working since the
1978 'pressing and persistent' ruling, were also reporting an increase of violence on the streets and more punitive policing measures including detentions, curfews, and
strict bail conditions (Brock 1998, 80-82). Sex worker activists from CORP and ASP
described the following changes for street-based prostitutes after the passage of the
communication law:
... women working in prostitution found that they could not be as selective since there were fewer customers. The women found it necessary to make their transactions quickly in order to avoid detention by police, thus rendering it more likely for the transactions to be on the customer's terms and at his price... prostitutes were now more frequently abused by customers and others on the streets, because the law symbolically conveyed the message that prostitutes were no good. (Brock 1998, 81)
That is, the new communication law both increased sex workers' vulnerability to harm and also reinforced a social understanding that sex workers are less deserving than other citizens.
It was in this context of heightened arrests and increased violence towards sex workers that HIV/AIDS was becoming a public health concern in Canada and sex workers were beginning to be targeted for its spread (Brock 1998, 84-89). From the
180 outset, HIV, initially called gay-related-immune-deficiency (GRID) disease or more
offensively the 'gay plague,' was almost exclusively associated with gay men
(Goldstein 1997, 8). Nancy Goldstein (1997) agues that it has been common for
medical discourse and research on HIV/AIDS to position women as "reproductive
subjects or potential contaminators of so-called 'innocent' populations (fetuses,
children, and male sexual partners)" (Goldstein 1997,10). Even though it is physiologically much easier for women to contract the virus than to transmit it, women's bodies have been researched and studied as though they are the vectors of the communicable disease with little regard for the women themselves83 (Goldstein
1997). Pregnant women and prostitutes, then, were seen as transmitting the virus to
innocent and unknowing children and men. Not unlike the association of prostitution
and venereal disease imbedded in the nineteenth century discourse of the Contagious
Diseases Acts (CDA), sex workers were specifically scapegoated for its spread. As
Joanna Phoenix (1999) argues, "In the century that has passed since [the CDA] the
association of prostitution with sexually transmitted diseases has never really
disappeared..." (Phoenix 1999, 28). Interestingly, in the early days of the HIV/AIDS virus it was documented that sex workers were no more likely to have HIV than the
general population (unless they were also intravenous drug users) and were in fact
regularly using safer sex protection (Brock 1989; Stoller 1998).
82 In 1983 the Center for Disease Control (CDC) defined the '4-H club' as the categories of high-risk individuals - homosexual men, Haitians, haemophiliacs, heroin users, and shortly afterwards, hookers (Goldstein 1997, 8). 83 The positioning of women as vectors of disease was particularly apparent in the Contagious Diseases Acts of both Canada and Britain.
181 In the late 1980s, the constitutionality of the communication and bawdyhouse laws were put to the test and challenged on the basis that they violate one's freedom of
expression and freedom of association (DoJ-C 1989, 120; Prostitution Reference
1990; Lowman 1998). In 1990, the Supreme Court upheld the constitutionality of both
laws in what is commonly referred to as the Prostitution Referenced The majority
decision85 concluded that the prohibition against the keeping of a common
bawdyhouse does not violate one's Charter rights (Prostitution Reference 1990).
Further, they ruled that while the communication section might indeed be an
infringement, this infringement was "reasonable and demonstrably justified in a free
and democratic society" and that "the scope of freedom of expression does extend to the activity of communication for the purpose of engaging in prostitution"
(Prostitution Reference 1990, n.p.). As Lowman summarizes, the Supreme Court
concluded:
... although the communicating law contravened the right to free expression, it is justified on the basis of section 1 of the Charter which holds that a 'reasonable' limit as prescribed by law can be put on a protected right. In this case, the majority ruled that, because of the pressing nature of the public nuisance it is designed to curb, the communicating law is a reasonable limit to the right of free speech. (Lowman 1998, n.p.)
Over the 10-year period following the enactment of the communication law, from
1986 to 1995, there were generally between 6,000 and 10,000 prostitution-related
84 Reference re ss. 193 and 195.1(l)(c) of the Criminal Code (Man.) [1990] 1 SCR 1123. 85 Two female judges dissented while three male judges made the slim majority ruling (Prostitution Reference 1990; Lowman 1998).
182 o c charges laid per year (Duchesne 1997). Despite being deemed a 'reasonable limit' to the infringement of one's freedom of expression and freedom of speech, in 1995 alone, 92% of the 7,165 charges laid were under the communication section of the
Criminal Code (Duchesne 1997).
In addition to the constitutional challenge of the communication and bawdyhouse laws in the late 1980s, the early 1990s saw three other cases brought before the Supreme Court on the basis that the prostitution-related sections of the
Criminal Code violated areas of the Charter of Rights and Freedoms.87 Most often, cases have challenged section 2 of the Charter of Rights and Freedoms (fundamental freedoms including the freedoms of belief, opinion, expression, and association) and section 7 (the right to life, liberty, and the security of the person) (Charter 1982,
Betteridge 2005, 55). In each instance, the Supreme Court ruled against the challenges and concluded that when and if the prostitution laws have infringed one's rights, this on infringement was justifiable under the reasonable limits set out in section 1 (R v
86 An interesting and noticeable shift in enforcement patterns is the overall grown in the number of men being charged. Of all people charges with communicating between 1986 and 1995, 47% were male compared to the much lower percentage of men, 36%, charged with soliciting between 1977 and 1985 (Duchesne 1997). It is uncertain what percentage of men charged were sex workers compared to clients. Considering, though, that there are considerably more men (largely clients, managers, owners, operators) involved in the industry than women (largely sex workers), it can still be concluded that women are disproportionately charged under prostitution laws (Shaver 1993). 87 These cases include: R v Stagnitta, [1990] 1 SCR 1226; R v Skinner, [1990] 1 SCR 1235; R v Downey, [1992] 2 SCR 10. 88 Section 1 reads, "The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society" (Charter 1982, n.p., emphasis in original)
183 Stagnitta [1990]; R v Skinner [1990]; R v Downey [1992]; Allinott et al. 2004;
Betteridge 2005).
The Last Hope for Change: The Subcommittee on Solicitation Laws
According to the Canadian Center for Justice Statistics, between 1991 and
1995, 63 known prostitutes were murdered in Canada (Duchesne 1997). Of these 63
sex workers (60 of whom were women), it was thought that 50 were killed by clients
(Duchesne 1997). In a study of violence towards sex workers in the province of British
Columbia before and after the communicating law, Lowman found that twelve sex
workers were murdered in the six years preceding the legislative change (an average
of 2 per year) compared to the four murders in 1985 alone, the year the new law was
enacted, and an average of five murders per year from 1986 through to 199589
(Lowman 1998, n.p.). While it might be hasty to claim that the communication law is
solely to blame for increase in murders of sex workers, Lowman argues:
The symbolic marginalization of the street prostitute was completed with the enactment of the communicating law. Their physical marginalization occurred as police used the communicating law in combination with other harassment tactics to displace prostitutes out of residential areas into darkly lit industrial back streets. While this urban triage helps quell complaints from residents, it makes prostitutes easier targets for premeditated attack by sexual predators. (Lowman 1998, n.p.)
89 From 1995 to 1999 the number of murdered sex workers in British Columbia dramatically jumps to fifty (Hanger and Maloney 2006, 18). This represents only the number of women whose bodies were found after being reported missing, other have still not been found (Hanger and Maloney 2006, 18).
184 Indeed, at a minimum it is important to note the unintended safety consequences and other possible effects of the prohibitionist model that increases the criminalization and stigmatization of prostitution-related activities.
In 2003, and in response to the continued violence towards sex workers, New
Democrat Party Member of Parliament Libby Davies initiated the most recent review of Canada's prostitution laws (Davies 2003). Davies' Private Members Motion, M-
192, to the House of Commons read:
That a special committee of the House be appointed to review the solicitation laws in order to improve the safety of sex-trade women and communities overall, and to recommend changes that will reduce the exploitation of and violence against prostitutes. (Davies 2003, n.p.)
In a press release issued just after Parliament approved her proposal for a review of the solicitation laws, Davies is quoted as saying, "I'm very happy and relieved that the government and Members of Parliament have finally recognized that the illegal nature of the sex trade has a dramatic impact on the health of our communities and the safety and rights of those working in the industry" (Davies 2003, n.p.). Similar to Lowman,
Davies is alluding to the adverse effects that prohibition has on sex workers. She argues that it is the illegal nature of the activities and the industry that impacts the safety of sex workers, not that sex work is in and of itself dangerous.
The Subcommittee on Solicitation Laws of the House of Commons Standing
Committee on Justice and Human Rights90 officially began in the 37th Parliament of
October 2003 but was temporarily delayed after only five hearings due to the
90 The Standing Committee was originally called The Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness.
185 prorogation of Parliament (Hanger and Maloney 2006, 2). It recommenced its activities during the 38th Parliament of November 2004 and was scheduled to present its final report in the fall of 2005 but was again postponed because of the dissolution of Parliament at that time (Hanger and Maloney 2006, 1-2). In June of 2006, the
Subcommittee once more resumed its work, this time with the mandate that it submit its final report by December of that year (Hanger and Maloney 2006, v, 1-2). The
Subcommittee's final report, titled The Challenge of Change: A Study of Canada's
Criminal Prostitution Laws, was indeed completed by December of 2006 and was presented to the Standing Committee on Justice and Human Rights (Hanger and
Maloney 2006). While some of the Subcommittee members changed during its tenure, it was always comprised of six members including two Conservatives, two Liberals, one Bloc Quebecois, and one New Democrat91 (Hanger and Maloney 2006, v).
Similar to the Fraser Committee, the Subcommittee made its focal point presentations92 from police services, community members, residents' groups, women's organizations, advocacy and rehabilitation organizations, sex worker researchers, and sex workers themselves (Hanger and Maloney 2006, 2). During the course of its
91 In it's final formation, Subcommittee members included Hedy Fry (Liberal, Vancouver Centre), Libby Davies (New Democrat, Vancouver East), Art Hanger (Conservative, Calgary Northeast), Real Menard (Bloq Quebecois, Hochelaga), and Patricia Davidson (Conservative, Sarnia - Lambton) with Lyne Casavant and Laura Barnett as the Committee Researchers. Liberal MP John Maloney (Welland) was Subcommittee chair (Hanger and Maloney 2006, iii). 92 All of the public and private hearings were conducted between January 31 and May 30, 2005 (Hanger and Maloney 2006,2). 93 The Subcommittee noted that most of the individuals involved in the sex industry who presented were sex workers but they also heard from others including those who "sold the sexual services of others (pimps) or purchased services from prostitutes (clients)" (Hanger and
186 deliberations, the Subcommittee hosted nearly 300 witnesses at their hearings (Hanger and Maloney 2006, 5). The Subcommittee also visited various community organizations and programs for both youth and adult sex workers across the country
(Hanger and Maloney 2006, 2). Unlike the previous Fraser Committee hearings which saw only a limited number of sex workers, Subcommittee members heard, either directly or indirectly, from hundreds (Allinott et al. 2004; Clamen 2005a; Clamen
2005b). There were three kinds of hearings in which the public could voice their opinions to the Subcommittee: first, there were formal hearings in Ottawa where invited guests could make presentations; second, were the public cross-country94 hearings where participants could present short testimonies or simply observe; third, were the closed in-camera sessions for sex workers only95. Verbatim transcripts were made available to the public from both the formal Ottawa hearings and the public cross-country sessions but not from the in-camera sex worker only hearings. Sex work activist Kara Gillies, who was interviewed for this research project, discusses the complications with keeping the sex worker hearings private:
... on the one hand, we needed to create a safe place for sex workers to share their stories, partly because of the stigma but largely because of these laws that we are now trying to challenge and that ironically, or maybe interestingly is a better term, the very fact that we have to have this session in camera speaks to how damaging these laws are. So on the one hand, it was great to be in camera and give these people the opportunity to be heard but at the same time it was silencing, because it was in camera there's no official record of it.
Maloney 2006, 2). 94 Public and in-camera cross-country hearing took place in Ottawa, Toronto, Montreal, Halifax, Vancouver, Edmonton, and Winnipeg (Hanger and Maloney 2006,2) 95 The majority of those interviewed for this chapter presented at the closed in-camera sex worker hearing in Toronto.
187 We wanted to make it clear to everybody there that was the trade-off, that was really problematic. - Kara, current sex worker
Upon hearing of the Subcommittee's activities, Pivot, a non-profit legal advocacy organization located in the downtown east side of Vancouver, British
Columbia, became concerned about the possible under representation of sex workers in the review process (Allinott et al. 2004). In response, they coordinated a research project that interviewed former and current sex trade workers and procured 91 sworn affidavits focusing on the impact of the prostitution-related sections of the Criminal
Code (Allinott et al. 2004). Titled Voices for Dignity: A Call to End the Harms
Caused by Canada's Sex Trade Laws, the final report showcased the results from the interviews and made recommendations for legal change. Of the affidavits gathered, all but one called for the repeal of the bawdy house laws, all but one called for the repeal of the communication laws, and many argued that important aspects of the procuring laws inhibited their ability to create safer working environments for themselves
(Allinott et al. 2004, 23-25). Pivot's report called for the necessity of the decriminalization of prostitution along side larger social and economic changes. It concluded, "Striking down the prostitution laws is a critical step, but is not exhaustive of the actions required to remedy the disadvantage and marginalization experienced by sex workers in Canada. The affidavits and legal arguments emphasize the need for legal, social and economic change" (Allinott et al. 2004, 226).
188 Across the country in Montreal, Quebec, sex worker rights organization Stella similarly pulled together the voices of sex workers at their tenth anniversary celebrations in May 2005 (Stella 2005). The main event was a four-day conference attended by 250 participants96 titled Forum XXX: Celebrating a Decade of Action,
Designing Our Future (Stella 2005). Jennifer Clamen (2005a), who co-coordinated the
Forum, presented at the Subcommittee hearings in Montreal and brought with her the voices of hundreds of sex workers. She opened her declaration by stating, "Behind this testimony stands the 250 sex workers of the Forum XXX, and other sex workers around the world that testify to the harm, crime, and injustice of criminalizing sex workers in a victimless crime" (Clamen 2005a, n.p.). According to Clamen, the overwhelming consensus of the participants and organizers of Forum XXX, just like the overwhelming consensus of affidavits procured by Pivot, was for the decriminalization of prostitution-related activities (Clamen 2005a).
In addition to the presentations by sex work activists from Pivot and Stella, the
Subcommittee informally met with over a hundred other current and former sex workers across Canada (Hanger and Maloney 2006, 3). The Subcommittee reports,
"The life experiences of these individuals, the problems they face and the solutions they recommend to reduce exploitation and violence in prostitution were extremely valuable and informative" (Hanger and Maloney 2006, 3). According to the
Subcommittee, regardless as to their reasons for entering the industry, and regardless
96 Sex workers, former and current, were prioritized for registration over allies and academics. Of the 250 spaces, roughly 40 were reserved for allies (Stella 2005).
189 as to the different socioeconomic backgrounds they came from, sex workers maintained that there were practical and legitimate reasons for remaining in their line of work:
During our study, we met with individuals who practised [sic] prostitution to cope with a drug habit, extreme poverty, mental illness or the effects of a violent past. We also heard from people who said they sold sexual services by choice and with relative autonomy. In each of these groups, women said they had chosen this trade (as the majority of them see it) of their own free will because for them it had more advantages than disadvantages, including flexible hours, decent wages for their level of education, and the opportunity to meet interesting people. (Hanger and Maloney 2006, 7)
Indeed, sex workers' own framing of the sex industry as a viable area of employment is an important shift in conceptualizing sex work as violence and prostitutes in need of protection, to sex work as sexual labour.
Despite the mobilizing and organizing efforts of hundreds of sex workers and sex work organizations across the country, the near unanimous endorsement of decriminalization did not convince the members of the Subcommittee. In their final report, The Challenge of Change, Subcommittee members were only able to agree on a total of six recommendations (Hanger and Maloney 2006). These unanimous recommendations to the Government of Canada included: that the exploitation of minors (under eighteen) remain a serious crime and police should have the resources and training necessary to combat it; that trafficking in persons remains a priority; that federal laws are unevenly applied to high-end versus street-based sex workers and this status quo is unacceptable; that there needs to more education campaigns to prevent people entering the industry and more exit strategies for those wanting to leave; that
190 the government fund more research on prostitution to better understand the industry, the people, and the problems so as to implement more effective programs; and that the
Department of Justice coordinate research with other levels of government, NGOs, and sex workers to examine best practices (Hanger and Maloney 2006, 85-88). In addition to the above six unanimous recommendations, the majority97 of the
Subcommittee also put forward one final, multi-faceted, recommendation: that efforts be made to improve safety for sex workers, that there be increased assistance for sex workers in the form of exit programs, and that there be increased transfer payments to the provinces to alleviate poverty, increase training and education, and for income support (Hanger and Maloney 2006, 89). The Conservative Party representative, Art
Hanger, dissented from the Subcommittee's seventh and final recommendation as he claimed, "it enables prostitutes to remain in a dangerous and degrading lifestyle"
(Hanger and Maloney 2006, 91).
Included in the Subcommittee report is a detailed description of the
Conservative Party's stance on prostitution as well as their suggestions for change
(Hanger and Maloney 2006, 90-91). Hanger begins this section with a clear position statement:
... members from the Conservative Party see prostitution as a degrading and dehumanizing act, often committed and controlled by coercive or opportunistic individuals against victims who are frequently powerless to protect themselves from abuse and exploitation. They believe that the most realistic, compassionate and responsible approach to dealing with prostitution begins by viewing most prostitutes as victims. (Hanger and Maloney 2006, 90)
97 This majority recommendation was put forward by the New Democratic, Bloc Quebecois, and Liberal Party representatives (Hanger and Maloney 2006, 89).
191 Notably, Hanger does not elaborate on why he defines 'most' prostitutes as victims, nor does he describe which prostitutes are victims and which are not. Interestingly, by using the same language that nineteenth century moral reformers and twentieth century radical feminists use to describe prostitutes, Hanger's framing of sex work as exploitation and (most) sex workers as powerless to protect themselves becomes the basis from which Conservative Party proposals for social change and policy development arise. An important difference between the early moral reformers' notions of prostitution and Hanger's notions of prostitution is that Hanger had the opportunity to listen to the input and advice from large numbers of sex trade workers themselves. Unfortunately, as discussed further below, sex workers found that Hanger did not use the occasion to engage with and learn from those important first hand experiences.
In response to sex worker's and allies overwhelming endorsement of decriminalization, Hanger writes, "any effort by the state to decriminalize prostitution would impoverish all Canadians - and Canadian women in particular - by signalling
[sic] that the commodification and invasive exploitation of a woman's body is acceptable... such a notion violates the dignity of women..." (Hanger and Maloney
2006, 90). Instead, Hanger advocates a policy approach similar to the radical feminist
98 and Swedish model where the actions of clients and procurers are criminalized and subject to large fines, which would in turn fund rehabilitation, exit, and support 98 See Chapter 4 for more information on the Swedish model of prostitution policy.
192 programs for sex workers (Hanger and Maloney 2006, 91). In reference to sex workers themselves, Hanger puts forward the following proposal:
.. .the Conservatives recommend a system in which first-time offenders and those forced or coerced into the lifestyle are assisted out of it, and avoid a criminal record. However, those who freely seek to benefit from the 'business' of prostitution would be held accountable for the victimization which results from prostitution as a whole. (Hanger and Maloney 2006, 91)
From this policy proposal it can be speculated that Hanger's earlier assertion that
'most' prostitutes are victims is in reference to those who have been 'forced or coerced into the lifestyle'. Conversely, voluntary sex workers 'who freely seek to benefit' from the work as well as sex workers who are repeat offenders would fall outside of Hanger's victim categorization and would be criminalized accordingly.
Interestingly, while radical feminists would support some of Hanger's suggested policy reforms and ideological position of sex workers as victims, they would critique his championing of the forced/voluntary discourse as they would contend that all sex work is forced.
The Subcommittee on Solicitation Laws concludes its final report by reflecting on the lack of consensus among Subcommittee members. This internal disagreement is described as a 'philosophical' one:
Some members see prostitution as a form of violence against women - a form of exploitation in and of itself. Others see prostitution among consenting adults as a human rights issue - the right of an adult to use his or her body to provide sexual services in exchange for money and to operate in a safe environment. (Hanger and Maloney 2006, 92)
The Subcommittee's philosophical and ideological disconnect is an exemplification of
193 the divergent positions on sex work: the radical feminist perspective that supports abolitionist models of suppressing the industry to prevent harm; and the legalization and decriminalization perspectives that support sex workers' labour rights and agency.
The sex workers who mobilized and organized in great numbers to participate in the
Subcommittee hearings, however, were aware of the philosophical, logistical, and legal differences between legalization and decriminalization and overwhelmingly supported the latter.
Sex Workers' Responses to the Policy Debates
Current and former sex workers and allies associated with Maggie's: The
Toronto Prostitutes' Community Service Project were asked to describe their thoughts and perspectives about the Subcommittee on Solicitation Laws and their involvement in the process. When asked specifically about their immediate thoughts upon hearing of the formation of the Subcommittee, some of the interviewees expressed doubt and frustration:
What were my thoughts? I think I was really conflicted, many people were. - Kara, current sex worker
My reaction? "Oh, another one of these foolish things. " That was my reaction then and that is my reaction now. [...] My impression was, "why are we here? " We're here as a favor to the federal government, so that they can appear as though they care. That's why we are here. We 're here as a big ruse and I am participating in this for a big lie that the federal government is perpetrating. That was my impression to tell you the truth. - Valerie, former sex worker
194 I thought, "Oh no! Another action at the government level that's going to go nowhere! "
Why did you think that?
Because of the Fraser Commission, and the Federal Provincial Territorial Working Group, they both made recommendations for partial reform of the bawdyhouse laws and the government didn't act on it. Nothing is binding, it doesn't matter what the Subcommittee decides. - Robert, former sex worker
One interviewee started out feeling optimistic about the Subcommittee but changed her opinion when she presented at the closed sex worker hearing in Toronto:
When Ifirst heard about it I was hopeful thinking, "Wow, really? They're actually going to look at these laws and listen to what we think? Maybe there could be some changes made considering the act itself is legal... " At first that was my feeling, I was hopeful.
At what point did that change?
When I started to see the glazed-over looks... [Laughter]... and I realized that it was probably just the government's way of silencing us for a while. No real change was actually going to occur; they were going to spend all this money for nothing. — Lisa, current sex worker
Some sex worker organizers and activists across the country were so skeptical about the review process and the possible outcomes that discussions ensued about whether
or not to participate at all:
There was some really heated debates amongst different "activists " across the country about whether to be involved or not. On the one hand, the thought was, "Well, if we get a seat at the table at least we will be heard. Who knows? Maybe we can move forward with the Liberal government. " And then there were other people who said, "Absolutely not! We will be tokenized, they're going to be able to turn around and say, we consulted with all of the sex workers and look at all of this obnoxious stuff we have come out with. " The
195 biggest fear was that there would be change and it would be toward the Swedish model. That was 100% the biggest fear. - Kara, current sex worker
In the end, many sex worker organizers decided that the possible benefits for participating in the Subcommittee review process outweighed the possible negative consequences of not participating:
There's always the slightest glimmer of hope... [Laughter]... I was hoping I'd be wrong and some good would come from it. But Ifind that whenever governments and others that don't understand or view sex work as a bona fide business take it upon themselves to 'do something about sex work' it's always harmful for us. - Valerie, former sex worker
I decided, and Maggie's decided, if they're going to be coming in listening to sex workers, all we can do is give it a shot — if you can be heard or not heard, might as well try to be heard. - Kara, current sex worker
On behalf of Maggie's, Kara Gillies organized the Subcommittee's Toronto in-camera sex worker hearing. To prepare for the session she met with sex workers individually and in small groups to give a background on the Subcommittee and its activities as well as brainstorm the kinds issues and topics they would like to present. In total, approximately 15 current and former sex workers" attended the Toronto in-camera session. Despite being initially hesitant about participating in the review process,
Gillies was pleased with the political significance of sex workers having the opportunity to articulate their life circumstances to government:
99 Sex workers at the Toronto in-camera hearing were primarily women (including trans women). According to Gillies, there were only two or three male sex workers in attendance.
196 It was a great opportunity for people to reflect upon their experiences in a broader political context and come together with other sex workers to talk about that and then strategize around how to present it to people who actually do have decision-making power. So that was great. If there was one thing that came out of this whole process was that opportunity. Some of the women who were involved now continue to be involved in different organizations or agencies. It was really a big step forward, and I really felt hopeful, not necessarily that that process would lead to anything but that hey, we can actually get together a group workers and strategize around specific goals in a way that is rewarding and meaningful to everybody. - Kara, current sex worker
Current and former sex workers at the in-camera meeting described the presentations as passionate and honest accounts of how the criminalization of their work affects their daily lives:
The passion, the passion in the pre-meetings and even the passion in the room! It was great! It was absolutely fabulous! Everybody had a different story, or a different way of presenting the story, but people talked very dramatically and honestly about being abused by the police and being sexually assaulted by the police, one woman talked about her constant fear that her decisions around her job were going to have an impact on her partner, that he was going to get busted, that he was going to face the procuring or living on the avails or bawdy house charge. Another woman talked about her background in mainstream business and marketing and how she transferred those skills to the sex trade and how she was the most successful and happy she had ever been and yet the state refused to recognize that. It was brilliant! We had such a range of stories! I get excited even just talking about it! - Kara, current sex worker
Where Gillies was invigorated by the passion and excitement exhibited by the presenters, for a different sex worker at the in-camera session this enthusiasm detracted from the potential for Subcommittee members to sympathize with sex workers' critiques of the laws:
197 Basically people were really passionate about sex work and it came across like that. I'm not saying that's a bad thing, but I'm also saying that we could've come across a bit more... we could've done it in a more constructive manner. [...] The people that are on the Subcommittee, they don't live in our neighborhoods. I don't know if they live in their nice cushy upscale neighborhood or whatever, but they don't live in our neighborhoods, they don't see, so we have to get them to understand. We have to paint a picture for them, get them to be sympathetic. [...] It didn't make a light bulb go off in their head so they say, "Wait, we need to pay attention to this. Maybe these women do have a point. Maybe we're being too ignorant and not taking into consideration a lot of things. " - Sarah, current sex worker
Sex work ally and activist Maria Belen attributes the Subcommittee's inability to fully comprehend or empathize with sex workers' testimonies not to the presentation style of sex workers themselves, but instead to the ways in which the review was structured.
Maria Belen recalls her impressions of the presentations at the public Toronto hearing:
What you had was the impassioned sex worker versus the monotone cop giving his rationale. That's how it felt— this structure of diplomacy and good manners and etiquette. Even the meeting process — who is allowed to speak when, when you raise your hand... [...] Groups of sex workers were very impassioned and articulate in describing their work as legitimate and taking the role of the victim and throwing it back at the people who labeled the victims. That was very powerful, but in that particular structure, it becomes a little bit of a contradiction. You're still working within that model and so you still have this divide between the politicians, the community leaders, and then you have the sex workers who are hysterical about their work.[...J I think sex workers were listened to mostly in a patronizing kind of way. There was an exoticification as well. - Maria Belen, sex work ally
Lisa's impression of the Subcommittee's lack of engagement with sex workers was, in part, based on the physical layout and seating position in the room. To her, this
198 configuration affected the dynamic between the sex workers and the Subcommittee members:
It felt very us vs. them because all the members ofparliament were at the front. There were times when I saw that very glazed over look, and it was like yes we're doing this because we have to, we have to hear them out however it's not going to make a hill of bean's worth of difference. - Lisa, current sex worker
The Subcommittee's engagement with sex workers and comprehension of their issues could very well have been affected by a number of factors: the sex workers' presentation styles; the model in which the review was operating; the layout of the room and seating position; or perhaps all of the above. Indeed, a common theme and critique among the sex workers interviewed for this dissertation was a feeling of being disregarded and ignored while giving their testimonies. Interestingly, this critique was not leveled at all Subcommittee members equally; Art Hanger in particular was singled out for his behaviour during both the sex worker and public the hearings.
Valerie Scott, sex worker activist and Executive Director of the Sex Professionals of
Canada (SPOC), was frustrated by Hanger's blatant disregard during the sex worker presentations at the public hearing:
... Art Hanger, the chair of the Subcommittee, asked a couple of inflammatory questions here and there but for the most part he sat there reading Time Magazine. When women are coming in bearing their souls because they believe that something good might come from this and at great personal risk to themselves, in public, and the chair is busy reading Time Magazine that really tells you something! [...] He hates sex workers. He thinks were all a bunch of losers and idiots and that we don't know what's good for us. His mind is made up. I understand his body language entirely. I wish he had a little sign that said 'my mind is already made up'.
199 [...]
He was a little condescending. It's almost as if... I don't know... I get the impression that Art thinks that a woman who has been a sex worker or who is a sex worker... it's like another century... he thinks she doesn't deserve any respect, after all she's just a whore — but in not the way I think of a whore - Art's whore is a woman you can beat up and it would be okay, you could do anything to her and it would be okay, because she deserves it, because she's not a virgin or a prim and proper married women with children. I really get the impression that's the way Art Hanger's mind works. - Valerie, former sex worker
Lisa, Kara, and Sarah all had similar critiques of Hanger from their interactions with him at the in-camera sex worker hearings:
It's been a few years but Ijust remember that struck me: we were there doing the Maggie's thing and [Art Hanger] was totally not paying attention. His eyes were completely glazed over. - Lisa, current sex worker
Art Hanger. Really. You had to wonder why he was even involved if he was so disinterested in what people had to say and if he had made up his mind so thoroughly. His body language! At one point, we were all sitting around the round table and he was at the head of the table, he actually spun his chair around so that his back was to us! He was staring off into the corner! No word of God damn lie! At one point, one of the participants actually called him on it. She was talking about something and she saw him... I don't think he was completely turned around at that point, but he was clearly ignoring her... and she said, "You! Why aren 't you paying attention? What are you doing here? Are our stories not important to you? " She just called him on it. It was really interesting, I don't think he was accustomed to that. An ex-vice cop from Alberta! - Kara, current sex worker
Art Hanger — he was very conservative — very conservative and very closed minded view.
What kinds of things was he doing that gave you the impression he was closed- minded?
200 For one, his facial expressions were like, "This is a waste of time, why am I here, why did they even call us here? " He shut women down very quickly saying, "Well the law is this, the law is that. Deal with it. " You know what? He was rude. He was rude to some women, just because we were sex workers. He was talking down to us. It was not nice. - Sarah, current sex worker
It is not particularly surprising, given sex workers' accounts of their interactions with
Hanger, that his contributions to the Subcommittee's final report did not take into
consideration how sex workers were defining their lives and work. Hanger's preconceived notions that sex work is exploitation and that sex workers are victims
were directly challenged by many of the sex workers in attendance. Therefore, in order
for Hanger to maintain his views on prostitution he needed to discount and ignore what sex workers themselves were saying. Fortunately, some of the Subcommittee
members were more receptive to the sex worker presentations and were open to asking
questions and learning from the first hand accounts:
Other than Art Hanger though, I will say that at the in camera meeting the members did seem engaged. [...] Libby was really engaged and asked a lot of very specific questions. The fellow who chaired the committee, John somebody, the liberal guy, he was also very engaged. He asked a lot of specific questions, particularly around pimps and police, but not in a way that was making assumptions. You can tell that he was really interested. - Kara, current sex worker
The men that did listen, they were trying to understand a little. [...] ...they were trying to listen, they were trying to figure it out. They weren 't so quick to shut us down. - Sarah, current sex worker
For Sarah, the Subcommittee members who were most engaged with the sex workers were the women. When asked about why she thought this was the case, she replied
201 that it was because as women, the female Subcommittee members shared common experiences with the sex workers:
It was mainly women sex workers that were there. [...] They were trying to understand women, because they are women. And that's a good thing. They were making notes too, and I was hoping that they would take it seriously... What I found was that only the women were communicating more on the Subcommittee — the federal government — asking a lot of questions. They didn't understand. They showed that they were trying to understand, they were asking questions and they got answers. [...] They were putting in that effort, and the men... the way they came across to me was that they know what sex workers were about. They know what we are all about, what we want and they aren't going to have it. They were stone faced. They took a very dominant stance. So it came off like that. - Sarah, current sex worker
Similarly, Valerie Scott had a positive impression of the female Subcommittee members from her experience at the public hearing:
Libby [Davies] was good. She asked intelligent questions. Whether she agreed with us or not she asked good questions. The other woman, Hedy Fry, she was pretty good too. She and Libby were engaged in the effort. - Valerie, former sex worker
While some of the sex workers interviewed felt that particular Subcommittee members were receptive to what they were presenting, they were still critical of the overall ideological positioning of sex work and sex workers by the Subcommittee and in the report itself. As discussed above, the Subcommittee's activities were to review
Canada's prostitution-related laws to increase safety for sex workers and to make recommendations to reduce exploitation and violence.100 The framework in which the
100 Again, Davies' proposal to the House of Commons read, "That a special committee of the House be appointed to review the solicitation laws in order to improve the safety of sex-trade
202 Subcommittee was functioning from the outset, then, was one that understood sex workers to be working in conditions of violence and that this particular group of
individuals (namely, the Subcommittee) could lessen the exploitation through their
recommendations. Many of the sex workers and allies interviewed were critical of the
Subcommittee's radical feminist equation of sex work and victimization, which was
also apparent in its final report:
Because the whole committee, I think, was an effort in part through Libby Davies attempts to point to prostitutes as victims. Even though that's not what you get, that didn't matter. The whole basis of it was to say "See, look they are victims" [...]... there is this kind of concern and it's patronizing, it's extremely patronizing. - Maria Belen, sex work ally
It really focused on sex workers being victims. That's my impression. [...] A lot of the quotes that they were using were the worst-case scenarios about women's lives in the sex industry. I got angry and put it down, I didn't read the whole thing but I didn't read any positive quotes. And there are lots ofpositive things about being in the sex industry. It's not always about survival work or to support a drug habit or anything like that. - Lisa, current sex worker
They make these generalizations about all sex workers and it appears as though they didn't listen to workers and they are not able to see that not every sex worker is somebody who is addicted to drugs or psychologically damaged. That is not how sex workers are as a group. I'm not saying that those aren't realities or that they aren't present or that that's not important but you can't base your generalizations on 10 or 20% of the whole group ofpeople. What about me? The women I know and see are just people who have kids or who are trying to go to school. What about those perspectives? We are all lumped into it as people who have lost control of their lives. [...] It's disheartening and hurtful when I read things like this that just dismiss my experience. I feel like I've been disregarded. It's hurtful, but that's been the history of studying sex work. - Julia, current sex worker women and communities overall, and to recommend changes that will reduce the exploitation of and violence against prostitutes" (Davies 2003).
203 I read about 40 pages before I gave up in disgust.
What did you find disgusting about it?
The 'saviour' attitude. I found that disgusting. The whole thing is written with a saviour attitude. - Valerie, former sex worker
Further, there was a general level of frustration with how the Subcommittee disregarded sex workers' specific proposals for decriminalization. When asked about her feelings about the recommendations, Julia, a 29 year old doctoral student who has been working off and on as a sex worker since she was 17, replied:
All of these people who have the power to make changes have turned their collective backs on an entire group of people. [...] There were no recommendations on repealing or changing the laws and these issues have been studied and studied. [...] If the communicating laws were thrown out the window it would be largely invisible and would clearly help safety issues. For that not to be recommended, given all of the things that we know, is purely political. There's so much research and it's what sex workers are saying! That very disappointing, it's almost shocking. - Julia, current sex worker
Perhaps not surprising to sex workers' who had reservations about participating in the parliamentary review process since the beginning, the Subcommittee's final report did not take the kind of definitive position that many sex workers had hoped:
It was really wishy-washy — there were no strong, concrete statements. I think the Subcommittee, and parliament at large, chickened out. It was cowardly. They do identify problems with the existing law and that the status quo isn't working and that in fact, it's dangerous to sex workers, and yet they didn't have the courage to advocate for any substantial change. - Kara, current sex worker
204 Despite sex worker' and allies' attempts to persuade the Subcommittee, its final report did little to put forward suggestions for the advancement of sex worker's rights.
Indeed, through a more detailed look at the Subcommittee it becomes possible to hypothesize that abolitionist and radical feminist views on prostitution that position all sex workers as victims are still so deeply imbedded in popular discourses that sex workers' advocacy on their own behalf ends up falling on deaf ears.
Conclusion
Over the past 115 years, Canadian laws related to prostitution have only been modified on a few occasions. Until recently, sex workers have not been part of the policy change process as the laws were created with protectionist philosophies. Over the past 40 years, sex worker themselves have been increasingly engaged in policy development but for the most part, policymakers have not been overwhelming responsive to their suggestions. Indeed, through an analysis of the changes to
Canada's prostitution policies and sex workers' participation in the development process, it is possible to better understand how sex working communities and governments do and do not engage with each other.
Aside from Canada's one foray into the regulation of prostitution through the
Contagious Diseases Acts (1865 to 1870), prostitutes have long suffered under prohibitionist models of criminalization. Initially formed in response to the activities of the moral reform movement and the changing role of women at the end of the
205 nineteenth century, Canada's first criminal code in 1892 provided detailed provisions that outlawed many of the activities associated with the trade. In an attempt to protect women and children from the wiles of the procurer, the criminalization of prostitution- related activities was somewhat contradictory as the purchasing of sexual services was not made illegal. Popular conceptions of prostitution as either a 'necessary evil' or as a greater 'social evil' impacted the formulation of policy at the time. After the 1913 amendments, which increased penalties for procurers at the height of the white slavery panic, prostitution and prostitution policy faded from the public mind.
It was not until the 1970s that sex work once again resurfaced in Canadian public debates. Feminist and civil libertarians joined efforts and lobbied to over-turn the Vagrancy laws that still categorized prostitution as a 'status' offence. While their efforts were successful in 1972, residents groups, politicians, and police services were dissatisfied with the relative freedom with which sex workers could work on the streets. Following the 'pressing and persistent' ruling in 1978, which further decreased police powers of arrest, the then Minister of Justice initiated the Fraser Committee to study prostitution and pornography in Canada and to put forward recommendations for change. The formation of the Fraser Committee remains Canada's largest scale effort to research the sex industry to date. Dozens of meetings were scheduled across the country to solicit public opinion and feedback, including meetings with a small number of prostitutes. Despite the Fraser Committee's suggestion to loosen the bawdyhouse laws, the Conservative federal government proposed, and shortly thereafter passed, Bill C-49, which criminalized communication for the purposes of
206 engaging in prostitution in a public place. The purpose of the new legislation was to remove the nuisance aspects of the trade by forcing prostitutes out of public areas. In the years following the passage of Bill C-49 violence against sex workers dramatically increased across the country and even the government's own studies on the effects of the new law concluded that it had been unsuccessful.
The Subcommittee on Solicitation Laws marked the first time in Canadian history where large numbers of sex workers engaged with policy makers in the policy development process. Unfortunately, according to some of the sex workers who presented at the review hearings, there was a lack of reciprocal engagement from the
Subcommittee itself. Sex workers across the country organized to bring together the voices of hundreds of other sex workers so that their experiences, perspectives, and recommendations for change would not be over looked. Sex workers and allies procured sworn affidavits, coordinated conferences, and mobilized for the closed in- camera sessions in response to the Subcommittee's review mandate. Yet, little, if any, of their proposals for social and policy change were incorporated into the
Subcommittee's final recommendations. Current and former sex workers articulated feeling disregarded and ignored during their presentations in both the closed, in- camera and the open, public hearings. The Subcommittee on Solicitation Laws provides a contemporary example of the ways in which sex workers voices are marginalized in discussions that directly affect their lives and work. Sex worker activists struggled with whether or not to participate in the Subcommittee review hearings fearing what legal and social changes the Subcommittee might recommend.
207 In the end, sex workers' fears were realized as particular Subcommittee members overlooked their life stories and proposals for change. Sex worker activists unsuccessfully endeavored to persuade the government to develop consultative legislation that supports their social, political, and economic interests.
If sex workers are not able to effect legislative reform through government- sanctioned activities, then how are they to successfully promote social and legal change that they themselves define? What are other strategies that sex workers can employ to promote their human and labour rights? According to many sex workers and allies involved with Maggie's, it is time for the sex workers' rights movement to concentrate its energies on establishing and improving labour standards in the sex industry; sex workers are strategizing and organizing labour and workplace rights campaigns.
208 Chapter 6
How Canada's Criminal Code Affects Sex as Work: The Possibilities of Labour Organizing Under Criminalization
Sex workers have a unique insight and expertise regarding their industry, the role it plays in Canadian society, and the ways in which regulatory schemes will impact their business. Above all, law and policy makers should listen to sex workers in order to understand how the laws affect them, which is a necessary step in ensuring that Canada's laws comply with the guarantees and protections enshrined in the Charter and other human rights instruments.
Mary Childs et al. (Beyond Decriminalization: Sex Work, Human Rights and a New Framework for Law Reform. Vancouver: Pivot Legal Society, 2006. 9)
Over the past decade, research on sex work and the Criminal Code of Canada has tended to largely focus on the effects of criminalization on the vulnerability of, and violence towards, sex working communities (Lowman 1998; Maticka-Tyndale et al. 1999; Allinott et al. 2004; Lewis et al. 2005; Betteridge 2005; Hanger and Maloney
2006; Jeffery and MacDonald 2007). Considerably less Canadian research, however, has focused on the effects of criminalization on sex workers' labour or on how to establish labour rights within the sex industry, as Chapter 2 has discussed in greater detail (Bruckert, Parent, and Robitaille 2003; Childs et al. 2006). Therefore, a significant portion of the dissertation's interviews with sex workers and allies focused
209 on the labour-related impacts of the four main sections of the Criminal Code regarding prostitution, namely sections 210, 211,212, and 213. Based on the interviews with key
stakeholders in Toronto's sex work community, this chapter presents important findings and puts forward three main arguments: first, that criminalization has
detrimental effects on sex workers' labour rights and conditions; second, that that a
combination of grassroots activism, sector specific campaigns, and formal labour
organizing are necessary for improving sex workers' working conditions; and third, that decriminalization is key to establishing occupational health and safety standards within the sex industry.
While the primary data presented below is from a limited number of interview
respondents (twelve in total), the common themes, critiques, and suggestions echo and
add on to what other similar Canadian studies on sex work have already presented.
Indeed, the triangulation101 process has demonstrated that this relatively small
sampling from a particular sex working population (Toronto-based activists) is
reflective of the ideas and positions of other sex workers in Canada (including street-
based sex workers from Vancouver's Downtown Eastside) (Allinott et al. 2004; Childs
et al. 2006). Further, as action research principles profess, sex workers' lived
experiences and intimate knowledge lend them a greater awareness of the effects and
101 Qualitative researcher Michael Quinn Patton describes the process of triangulation as combining a mix of research methods and approaches in order to test for consistency within a particular study and to increase the credibility of the results (Patton 2002, 248). He argues, "Triangulation is ideal" (Patton 2002, 247). In this study, qualitative interview findings were triangulated with international literature from the three case studies, international and Canadian policy documents, excerpts and sections of Canadian municipal and federal legislations, and findings from other Canadian qualitative studies on sex work.
210 consequences of the current Canadian legislative framework as well as a greater awareness of what social and legal changes are necessary to improve their lives.
Action researchers have made compelling arguments that the inclusion of local stakeholders in the research project can lead to more valid and reliable results based on their expertise (Brydon-Miller et al. 2003). As such, this research supports both
Mary Childs' et al. (2006) assertion that sex workers' expert and insider knowledge should be the basis from which policy makers modify old and formulate new policies, and Stephanie Wahab's (2003) argument for the greater inclusion of sex workers' own voices in research processes. Therefore, themed and coded data excerpts from the dissertation's interviews figure prominently below.
By way of opening the chapter, I will begin with a brief introduction to municipal licensing strategies and provincial penalties for sex work-related offenses.
While this research focuses almost exclusively on federal legislation, it is important to provide contextual background to the ways in which both cities and provinces have tried to circumvent the law though municipal bylaws and provincial regulations.
Following this introduction, the chapter is divided into two sections. The first section presents a detailed discussion of the labour-related consequences of criminalization.
Interview participants' common experiences were grouped into two themed areas: first, the impacts of criminalization on sex workers' workplace conditions, including increased vulnerability and violence, decreased safety and loss of business, and the necessity for secrecy; and second, the impacts of criminalization on sex workers'
211 intimate and business relations, including the necessity of external support and protection, mythologies around pimping, and increased power by police and landlords.
The second section then moves on to the suggested changes put forth by the sex workers and allies interviewed, paving the way for the final chapter consisting of concluding recommendations. Not surprisingly, as with any social justice movement, some of the suggested changes were in contradiction to each other whereas others were more complimentary. Grouped into two themed areas, this section shows the diversity of possible approaches and ideas for workplace improvements: the first series of suggestions focus on improvements within individual workplaces, including increased cleanliness, employment and anti-discrimination policies, contracts, and the eradication of club-fee systems; the second concentrates on suggestions for labour organizing, including grassroots workplace campaigns, sectoral association, and the challenges and benefits of large scale union organizing.
Circumventing Sex Work Laws: Municipal Bylaws and Provincial Penalties
In addition to the four key sections of the Criminal Code, some areas and aspects of the sex trade are regulated by city bylaws. Sex work establishments, for example erotic massage parlours and escort agencies, are regulated both by federal bawdyhouse and procuring legislations and, oftentimes, municipal zoning and licensing schemes (Lewis and Maticka-Tyndale 2000,439). Indeed, it is not uncommon when police services are attempting to lay charges against sex industry
212 establishments to be "accompanied by municipal officers who, at the same time, lay charges under the municipal by-law" (Bruckert, Parent, and Robitaille 2003,14-15). In this way, sex workers in a variety of establishments and sex industry sectors are
subject to multiple layers and different jurisdictions of legislation.
Licensing schemes in the City of Toronto are such that workers at massage parlours and exotic dance clubs need to obtain a city license but escorts do not (Bylaw
No. 574-2000, 1.1 & 1.3). Licensing fees for massage attendants and dancers are quite high in comparison to other comparable, yet non-sex industry, licenses (Bruckert,
Parent, and Robitaille 2003, 12-13). In addition to the licensing fees for massage attendants, prospective workers are also subjected to a criminal record check and medical exam, including blood tests for sexually transmitted infections, despite the requirement that no sexual activities take place at the work site (Bruckert, Parent, and
Robitaille 2003, 13-14). Interestingly, the City of Toronto's Municipal Code currently contains a plethora of bylaws regulating massage parlours, more than for almost any other category of business (No. 574-2000, Schedule 31). By denying that sexual
services are bought or sold on the premises, sex workers are effectively policed through the city's mandatory licenses without contravention of the federal Criminal
102 Some of these bylaws concerning massage attendants include: a licensed massage attendant can only work at one parlour at a time (No. 574-2000, Schedule 31 [12.1]); workers' licenses must be placed in a conspicuous location at the parlour, thereby disallowing worker anonymity from clients (No. 574-2000, Schedule 31 [12.2]); parlour owners much notify the Municipal Licensing and Standards Division in writing within forty-eight hours of hiring a new employee and if that employee ceases to work at that establishment both her and the owner are responsible for notifying the Division (No. 574-2000, Schedule 31 [12.3]); and if a massage attendant moves to a new home address she must notify the Municipal Licensing and Standards Division within forty-eight hours (No. 574-2000, Schedule 31 [13]).
213 Code.
Additionally, zoning bylaws and business licenses come into play as a common means through which municipalities are able to enforce regulatory control over the number, visibility, and location of establishments selling sexual services. As
Mary Childs et al. (2006) argue in their influential and well-researched report, Beyond
Decriminalization: Sex Work, Human Rights and a New Framework for Legal
Reform:
.. .a municipality has the discretion to refuse a certain type of business license in the interest of limiting the number of such businesses operating in its jurisdiction. A municipality has the discretion to set licensing fees so high that it will be difficult or impossible for some sex workers to do business. The power of a municipality to revoke and grant a business license, inspect businesses, set license fees and draft by-laws are all set out in the laws governing municipal powers. (Childs et al. 2006, 36)
In Toronto, since city bylaws restrict the number of regulated erotic massage parlours to twenty-five, the vast number of remaining erotic parlours are operating illegally outside of the bylaw system (No. 574-2000, Schedule 31 [35]).
In addition to regulating aspects of the indoor sex trade, some municipal bylaws are aimed at restricting outdoor sex work. In an attempt to discourage street- based sex work from taking place, many cities have bylaws that replicate some of the restrictions against soliciting and loitering as outlined in provincial highway and traffic acts (Betteridge 2005, 23). Additionally, a number of provinces103 have revised their highway and traffic acts in order to give police the power to impound, seize, and
103 In 1999, Manitoba was the first province to modify its Highways and Traffic Act in this way with Nova Scotia, Alberta and Saskatchewan following suit in 2000 and 2001 respectively (Robertson 2003, 17).
214 sell clients' cars who were charged with picking up street sex workers (Robertson
2003, 17). Other changes to provincial traffic acts intended to discourage prostitution include, "the suspension of a person's driver's license on conviction of a prostitution- related criminal offence if the person used a motor vehicle in the commission of the offence" (Robertson 2003, 17). In 2002, Ontario enacted unique legislation allowing the province to "ask civil courts to freeze, seize and forfeit to the Crown property that is the proceeds of unlawful activity, such as prostitution..." even before criminal charges are laid (Robertson 2003, 17). Essentially, this means that a person suspected of purchasing a car from their earnings gained through prostitution, or perhaps from their earnings from running a non-licensed massage parlour, can have their car confiscated even before a court of law finds them guilty. Additionally, as Glen
Betteridge (2005) of the Canadian HIV/AIDS Legal Network explains in Sex, Work,
Rights: Reforming Canadian Criminal Laws on Prostitution, through provincial and municipal laws, police services can issue tickets and penalize sex workers and clients in violation of the various municipal and provincial regulations; non-payment of these fines can lead to arrest and possible jail time (Betteridge 2005, 23). Therefore, in a number of creative ways, both cities and provinces are attempting to regulate, discourage, and control aspects of sex work by circumventing the federal legislation.
Further studies into the impacts of licensing strategies, city bylaws, and provincial regulations are necessary to more fully assess the consequences of such actions.
215 Implications of Criminalization on Sexual Labour: Sex Workers' Perspectives
Prostitution is not illegal in Canada, yet the laws that surround prostitution- related activities make it difficult to work safely without breaking the law. During the interviews for this dissertation, sex workers and allies articulated a variety of ways in which sections 210, 211, 212, and 213 of the Criminal Code increase their vulnerability and decrease their workplace safety. The bawdyhouse provisions of sections 210 and 211 in combination with the criminalization of communication in section 213 had direct adverse consequences on sex workers' workplace conditions.
The procuring legislation of section 212 was articulated as having more of a direct impact on sex workers' relationships with significant others and workplace managers.
As such, the following section presents first person accounts of the impact of federal criminalization on sex workers working conditions as well as the impact of criminalization on sex workers' family, friends, and managers. Divided into two subsections, quotes from the sex workers and allies interviewed are presented to illustrate the harms caused by the Criminal Code.
Sex Workers' Workplace Conditions
Common concerns raised by sex workers and allies regarding the impact of the
Criminal Code on their work included the need to work in isolation away from other sex workers, the necessity for secrecy, the inability to advertise properly, and the fear of criminal charges. The bawdyhouse provisions and the communication laws were
216 identified as having the greatest impact on sex workers themselves. Specifically, the first of the two bawdyhouse laws, section 210104, prohibits individuals from keeping, being an inmate of, or being found in any location that is being used as a bawdyhouse
(see Table 3.0). Since section 197 of the Criminal Code defines a common bawdyhouse as any location that is "kept or occupied, or resorted to by one or more persons, for the purpose of prostitution or the practice of acts of indecency," it is unlawful for sex workers to work in any fixed location by themselves or with others
(section 197, 1). Further, Canadian case law dictates that neither sexual intercourse nor full nudity have to take place for the act to be considered prostitution. Indeed, "the definition of prostitution merely requires proof that the woman offered her body for lewdness or for the purposes of the commission of an unlawful act in return for payment" (Bruckert, Parent, and Robitaille 2003, 13). Therefore, the broad bawdyhouse section of the Criminal Code can encompass many more work places than simply brothels; strip clubs, massage parlours, dungeons and other locations can be criminalized under section 210.
104 For full text of the legislation regarding keeping a common bawdyhouse see Appendix H: Section 210 Criminal Code.
217 Table 3.0 Criminal Code Section 210
Subsection Bawdyhouse Provisions Implications
- Must not discuss sexual services or admit 1 Keeping a common bawdy-house to sexual services taking place on the premises - Cannot see clients at one's own home - Must work in isolation - Must go to multiple unknown locations to provide sexual services - Cannot work from a fixed location alone or 2 Inmates, people found in (without with others lawful excuse), owners, landlords, - Cannot exercise control over work location tenants, and occupiers of a - Must not discuss sexual services or admit bawdyhouse to sexual services taking place on the premises - Must work in isolation - Must go to multiple unknown locations to provide sexual services If convicted, the landlord will - Tenants must hide activities from landlord 3 & 4 receive a notice informing of or risk repercussion tenant activities. Landlord must - Landlords can monitor and scrutinize then make sure activities have tenants' activities stopped or face charges - Landlords must act as de facto police - Landlords can have increased power over tenants
Many of the sex workers and allies interviewed for this dissertation identified
the bawdyhouse prohibitions set out in section 210 as contributing to decreased
workplace safety and job satisfaction as well as a violation of their rights:
Not being able to choose your workspace and to not have that control and that option is taking away your basic human and labour rights and pushing you into isolation... - Keisha, sex work ally
It completely controls the way that some workers want to work. It constrains their ability to work in a place where they can be seen by other workers... - Alysa, current sex worker
218 The more isolated, you are the more vulnerable you are. So if you can work with other workers... clearly if something bad happens you got other people around you. So to not make that an option is pretty undesirable. I like out call, but at the same time, I recognize that if something bad happens there is nobody around, so I'm basically handling the situation on my own. If you have a bawdyhouse and can work with other workers that's clearly a way to prevent possible violence, or even just a difficult situation. If the client is being belligerent sometimes if they know there are other people around they might feel less free to try to get what they want, whether that be a particular price or whatever. That's the key way that I would say the bawdyhouse laws affect workers and working conditions. - Julia, current sex worker
Some sex workers articulated a clear desire to work with others for safety and support:
There are some risks of things happening and to not have other people around seems like a really bad idea. I think it would give people a better option. [...] ...if it was two women sharing space that would be really nice... you have some security there so that would make a lot more sense, rather than having it so that you have to be isolated. - Julia, current sex worker
Whereas others expressed a desire to work from home where they are most comfortable:
It's more convenient to have clients come by or meet you, because everything is there, everything is safe — you know your place and you feel safe in your own surroundings. Everything is where I know it is. I think clients probably won't get as many ideas as if you were on their turf in their area.
So having to go out to meet a client, as opposed to having a client come to your house, makes you feel more vulnerable?
Yes. I would say for me, I have to really be aware, even more so than when you're in your own home. You always have to be aware in your own place, but even more so in a client's or strange man's or strange women's place. - Sarah, current sex worker
Despite sex workers' desire to work communally or from their own homes for safety, support, and job satisfaction, the bawdyhouse legislation criminalizes seeing clients in the same location more than once. Childs et al. research with 82 sex workers from a
219 diversity of sex industry sectors has similarly indicated that the bawdyhouse provisions prevents sex workers from "working in a safer indoor environment, thereby adding to the levels of harm they experience on the job. Sex workers repeatedly stated that working together in an indoor environment would allow them increased safety and protection from violent clients" (Childs et al. 2006,17).
Additionally, not being able to work from home can have a detrimental financial impact on sex workers. The bawdyhouse laws were identified as forcing sex workers to work in multiple different locations; transportation to and from work sites can be costly and a considerable amount of non-paid work time is spent in transit:
[The bawdyhouse laws] increase the amount of money they have to make... they will have to do it in another place, they will have to be working more, they will have to work harder and longer. - Alysa, current sex worker
In Ontario, since the passage of the 2002 legislation allowing the courts to seize property that is the proceeds of crime, if a sex worker decides to violate the law and work from her own home, she could face eviction or have her house seized. This knowledge can both lead to increased stress levels and can also persuade sex workers to further isolate themselves and work in secrecy out of fear:
For myself, when I had my own little in-call service going on that was always in the background of my mind. I knew that I couldn't be charged with anything I said over the phone, my advertising, all that sort of thing. I knew that I was within the law but because my apartment was being used for the purposes of prostitution I knew that it was illegal. So that was always in the back of my mind. It's scary you know? - Lisa, former sex worker
220 One sex worker interviewed preferred to work from a fixed location of her choosing so she rents a second premise exclusively to see clients, despite the extra overhead costs. Then, if charged with running a bawdyhouse, she would face eviction from the rented premise but would not lose any of her own property. This creative measure was learned through a previous encounter with the court system:
... when I got charged many years ago with keeping a common bawdyhouse, the police and courts did try to seize my home. I was fortunate in that I had paid off the mortgage and so the 'proceeds of crime' weren't going into the purchase of the property otherwise I could have lost everything. I do know women who have had everything seized — their home, their car, their clothes, their book collections for goodness sakes — as proceeds of crime. Ijust happened to not have a mortgage, how many people can say that? [...] I currently do keep a separate working apartment distinct from my actual house which I own because of the 'proceeds of crime' implications. I do have a mortgage now and if I were to be caught seeing clients out of my home my house would go. Because the work apartment is just a rental property the worst that they can do is kick my butt out. I should say though, if you are using a rental property for both your work and as living accommodation you risk not just losing your business but also you risk losing your home and your housing... because of the bawdyhouse law. And that's really frightening. - Kara, current sex worker
Additionally, the provisions in section 210 that force landlords to ensure that their premise is not being used as a bawdyhouse increase sex workers' vulnerability and isolation as they need to hide that sexual services may be taking place. This further increases the power that the landlord has over the tenant. Shari Allinott et al.'s
(2004) research with 91 street-based sex workers in Vancouver's downtown eastside has shown similar results. In Voices for Dignity : A Call to End the Harms Caused by
Canada's Sex Trade Laws they argue that the bawdyhouse laws turn sex workers into
'suspect tenants' due to landlords' fear of prosecution and that landlords may refuse to
221 rent a premise to someone they suspect is a sex worker (Allinott et al. 2004, 15).
Section 210 of the bawdyhouse legislation, therefore, contributes to sex workers' stress though fear of arrest, increases isolation through the necessity of working alone and hiding their activities, and can have negative financial repercussions if sex workers decide to rent second premises rather than risk losing their own property.
The second bawdyhouse legislation, section 211105, adds to the criminalization of sex workers common workplace activities through the prohibition of directing or transporting, or offering to direct or transport, someone to a bawdyhouse (see Table
4.0). This broad law captures one individual driving another to work as well as referrals among and between clients and sex workers. In effect, section 211 detracts from sex workers' business by prohibiting word-of-mouth recommendations and adds to sex workers' vulnerability by disallowing drivers:
You're not allowed to build any sort of networks ofpeople who know who you are, any sort of community... from a business perspective, somebody can't make a referral to your business? In a capitalist society that's a little bit backwards. [...] Having a worker suggest that you should see this person is pretty common in the escort industry. If someone requests a double you ask for a particular worker to come with you. It's always good to get a reference, like in any business. - Julia, current sex worker
Right off the bat it takes away any kind of business that you could possibly have — potential business through word-of-mouth. That's a huge impact on possible business, for example restaurants... people want to know where is the best place to eat. If people are in a position of being in trouble for giving that information, again, that's taking away possible business and putting the worker in a situation where their work it isn't exactly going to be successful because of the laws around it even though it's legal- thus putting a strain on your financial position. - Keisha, sex work ally
105 For full text of the legislation regarding transporting to a common bawdyhouse see Appendix I: Section 211 Criminal Code.
222 ... part of any business is word-of-mouth ...you tell two friends and two friends tell two friends and so on and so on — that the best form of advertising. So if by law you are not allowed to do that, than that affects your business because you can't advertise by word-of-mouth. - Lisa, former sex worker
Table 4.0 Criminal Code Section 211
Transporting to a Implications Bawdyhouse
- Cannot drive partner or friend to an Knowingly taking, unregulated sex work establishment transporting, or directing - Cannot refer clients to other workers someone to a bawdyhouse - Cannot build relationships with hotel and offering to take, concierge, taxi drivers or others who might transport or direct someone refer clients to a bawdyhouse - Cannot participate in word-of-mouth referrals - Must pay for transportation from an unknowing source - Must not tell third party that the intended destination is an illegal sex work establishment
A key way to increase sex workers' workplace safety is through the use of hired drivers. Since drivers are often the first individuals that sex workers call in case of a non-desirable client and they are responsible for transporting sex workers to various locations, having an open and communicative relationship with one's driver can enhance one's security. Due to section 211 of the Criminal Code, however, anyone transporting a sex worker to a fixed location used for selling sexual services can be charged:
Drivers are also usually hired to act as bodyguards and for protection. Most workers feel more secure if they know that there is somebody outside waiting for
223 them and who knows when they are going to be out. Even if they haven't told their friends or other family members what they are doing, the person who drives them there is partly responsible for their safety. It's mostly a safety issue. - Alysa, current sex worker
... this puts you at risk because you don't have a reliable source of transportation that you can use all the time — someone who knows where they are picking up and knows where they are going. It could be a driver that you could check in with for safety calls and stuff. - Robert, former sex worker
If nobody you know can take you where you are going then you have to rely on presumably strangers or people that you don't know and don't care about you. That's a safety risk. That increases your vulnerability to having bad things happen to you. You can't rely on others. Thinking of my own experiences as an escort, if the person that I rely on to get me if something bad is happening to me is criminalized, it's not really in my health and safety interests. - Julia, current sex worker
Other sections of the Criminal Code can have equally detrimental effects on
sex workers' vulnerability, isolation, and finances. For example, the communication legislation in section 213106 of the Criminal Code bars sex workers from offering to buy or sell sexual services in any public place, including a hotel lobby or a privately owned car (See Table 5.0). According to Betteridge, the laws prohibiting communication were intended to "increase the enforceability of the law, address the public nuisance from street-based prostitution, and extend the Criminal Code penalty to clients" (Betteridge 2005, 21, italic in original). However, as Allinott et al. argue, the laws that forbid sex worker-client communication in public contribute to "unsafe working practices adopted by sex workers in their efforts to avoid prosecution"
106 For full text of the communication legislation, also known as 'offence in relation to prostitution', see Appendix J: Section 213 Criminal Code.
224 (Allinott et al. 2004, 17). Further, it has been documented that police enforcement of the communication law disproportionately affects the more marginalized and visible sex workers while ignoring the less visible, and often safer, indoor trade (Allinott et al.
2004, 23; Jeffrey and MacDonald 2006). This is to spite the fact that Canadian research has indicated that indoor sex work accounts for over 80% of the sex trade
(Shaver 1993; Lowman 2005, 7; Hanger and Maloney 2006, 5; Childs et al. 2006,17).
Table 5.0 Criminal Code Section 213
Subsection Communication Provisions Implications
- Cannot have sex worker-client 1 (a, b, c) Stopping or trying to stop a communication in public car, impeding pedestrians or - Cannot make cell phone or public phone traffic, or stopping a person calls for arrangements with clients to offer to buy or sex sexual - Cannot engage in discussion of the terms services in a public place and conditions for sexual services - Must quickly leave public area with clients and go to location out of public view - Must work in isolation - Must go to multiple unknown locations to provide sexual services - Cannot see clients in bars, restaurants, 2 Defines 'public place' as hotel lobbies, parking lots or other areas any place the public has - Cannot use client's cars for sexual access to, any place open to transactions public view, and the inside - Must work in isolation of a car - Must go to multiple unknown locations to provide sexual services
All of the sex workers interviewed for this dissertation unanimously criticized the laws against communication for the purposes of engaging in prostitution as having
225 a negative consequence on their work and for increasing their vulnerability and isolation. Sex workers articulated being forced into less safe areas to conduct business transactions:
... it's isolation. Women become more and more isolated. If they are out, obviously, in a well lit, well trafficked area, their chances of being busted are greater than if they are in an isolated space which becomes a less safe area. [...] Anytime something is criminalized and driven underground it opens the door for predators that are going to take advantage of those folks who are vulnerable because of criminalization. - Lisa, former sex worker
You make these rush judgments getting into people's cars. It doesn't allow you to make a really informed decision. And then again, it puts people in these remote areas that are more dangerous. - Sasha, current sex worker
Essentially, it makes it illegal to negotiate the terms and conditions of your services. Specifically in a public place, but when you're in a public place that's often the safest place especially when you're meeting somebody for the first time — whether that's in a commercial sex context or otherwise. Same way that on a noncommercial date you might want to chat with an individual in a bar or a nightclub or at a party instead of just hooking up at home, in the same thing is true in a commercial context. - Kara, current sex worker
Further, as Leslie Ann Jeffrey and Gayle MacDonald (2006) articulate, section 213 criminalizes sex workers as though they are threats to "both communities and community decency. In neither case is the sex worker simply viewed as a citizen with rights" (Jeffrey and MacDonald 2006, 110).
While the necessity for secrecy and lack of negotiation between sex workers and clients most often affects the more marginalized street-based and outdoor sex workers, the laws that prohibit communication also affect those working indoors. This
226 can increase the vulnerability of escorts working from hotels, bars, and restaurants as well as massage workers at parlours:
... anytime that you have to be secretive about what you're doing it doesn 't increase your safety. For instance in a massage parlor when I have to negotiate with that client behind closed doors. When I'm alone negotiating the price of services and what I do... it would be easier if they knew right upfront what we offered and how much it cost, it would be a lot easier to deal with that person and that's not a possibility with how the laws are right now. I think that while this mainly affects street workers but it still criminalizes me and what I do and that's not a comfortable position to be in - when you're just trying to do your job and make a living. [...] It clearly affects the organization of your work in a way that leaves you more vulnerable. - Julia, current sex worker
Together, the bawdyhouse and communication legislation was critiqued by sex workers as contributing to increased workplace risks as well as a loss of business and other financial and emotional repercussions. Sex workers identified a number of key ways that the criminalization of their work increases their vulnerability and exposure to harm: the increased need for isolation and secrecy by mandating that sex workers must not work together or from their own homes; the decreased earnings by forcing sex workers to either risk the loss of their own homes or a rented property or else pay for costly and time consuming transportation services; the further decreased earnings by prohibiting word-of-word advertising or referrals for services; and the criminalization of drivers who are often used as a means of protection.
227 Sex Workers' Intimate and Business Relations
The criminalization of prostitution-related activities has detrimental impacts on both sex workers themselves and on individuals in sex workers' lives, namely family, friends, partners, and managers. All of the sex workers and allies interviewed expressed frustration at the ways in which the criminal laws penalize, stigmatize, and marginalize their relationships. For example, the illegality of knowingly transporting an individual to a bawdyhouse, under section 211 as discussed above, can persuade sex workers to rely on public transportation rather than have a friend or partner risk criminal charges:
I think that most people are unaware of this section of the criminal code so they are surprised and alarmed and distraught when indeed there are charges laid. Unfortunately, when workers are aware of the law it then again interferes with their safety and well-being, particularly with women who might be working late hours [...] If you have a ride, especially a ride with somebody you know, it can improve your safety, enhance your safety. [...]... suddenly you 're transporting yourself or your relying on TTC. Because of the 'not in my backyard', the general position of residence groups, a lot of massage parlors in particular are located in more isolated industrial areas — places where there is no public transportation or you have to wait a long time for the bus to come by and you're in a really dark isolated area, which of course isn't safe. - Kara, current sex worker
It further isolates us. It also puts our partners, our friends, and our social network in jeopardy. It puts people that we know in jeopardy. Legally it affects us so we are more at risk, and it isolates us even further. If we don't want to put folks at risk, we can't tell anyone. So then no one will know where we were, which, from a safety standpoint isn 't a good thing... if no one knows that you 're are at work — because they can't know that you 're at work — then they wouldn't know where to find you if something was to happen. - Lisa, former sex worker
228 Perhaps most significant is the criminalization of sex workers' managers and 107 significant others under section 212 of the Criminal Code. The procuring legislation prohibits anyone from exercising control or trying to influence another person into selling a sexual service as well as living on the avails of someone's prostitution earnings (see Table 6.0). As such, sex workers' partners and others that they cohabit with as well as managers, owners, and operators of massage parlours, escort agencies, or other sex work establishments can be charged (Davis and Shaffer 1994; Lewis and
Maticka-Tyndale 2000, 439). The sex workers and allies interviewed for this dissertation were especially critical of section 212 for its paternalism: In other words, they've decided that it's up to the courts to decide how men and women spend their money. -Alysa, current sex worker
... it assumes that sex workers have absolutely no agency - they are luredjust like children taking candy from a pedophile, and that there isn't a valid interaction between two people, or a group of people or what ever the case may be. - Maria Belen, sex worker ally
The laws are coming from a place that assumes you are being victimized. - Julia, current sex worker
Table 6.0 Criminal Code Section 212
Subsection Procuring Provisions Implications
- Cannot have a manger, boss, l(a,d,h) Procuring, attempting to employer, or supervisor at any procure, or in any way unregulated sex work establishment exercising control or - Cannot have a third party negotiate influence over a person to the terms of the services
107 For full text of the legislation regarding procuring see Appendix K: Section 212 Criminal Code.
229 have sex or to become a - Cannot refer clients to other sex sex worker workers - Cannot do 'doubles' (two sex workers with one client) - Cannot participate in labour organizing as managers are criminalized - Cannot access labour protections as managers are criminalized - Must only ever work independently - Must deny the sexual nature of the work
Enticing a non-sex worker - Cannot have a manager, boss, l(b,c,e) into a bawdyhouse to have employer, or supervisor at a sex or concealing bawdyhouse someone in a - Must deny the sexual nature of the bawdyhouse* work
Directing or taking a new - Cannot make referrals to recent 1 (f, g) comer to Canada to a immigrants specifically bawdyhouse or - Cannot encourage international convincing someone to travel or migration for work leave Canada to become a sex worker Applying or administering i CO an intoxicating substances in order to have sex with someone** - Cannot co-habit with a partner, 10) Living on the avails of family member, or friend prostitution - Cannot share bills or other household expenses - Must only ever live independently Offences directed at those 2 & 4 attempting to procure, procuring, or living on the avails of someone under 18 years old*** Unless there is proof - Cannot co-habit with a partner, 3 otherwise, someone family member, or friend habitually in the company - Cannot share bills or other of a prostitute or living household expenses
230 with a prostitute is - Must only ever live independently automatically guilty of - Must deny the sexual nature of the l(j) living on the avails work
* Activities are already criminalized under the Criminal Code's 'Taking and Abduction' provision (s. 279)
** Activities are already criminalized under the 'Sexual Offences' (s. 150-162), 'Assaults'(s. 265-268 and 271-273), and 'Illicit Drug Use' provisions (s. 462)
*** Activities are already criminalized under the 'Sexual Offences'(s. 150-162) and 'Offences Tending to Corrupt Morals' provisions (s. 170-172)
All of the interviewees agreed that the procuring laws were built upon unfounded notions and mythologies around 'pimps' and a lack of understanding about the industry itself. Embedded in pimping discourses are conceptualizations of female passivity and vulnerability where women need state protection from violent male predators:
I think that the myth of the pimp and the beat up street worker is still very, very alive in people's minds. It seems to me that a law like that points to that myth. [...] This law always makes me think about why the lives of sex workers are so under vigilance. [...] There is some sort of entitlement from the nation state to supervise the private lives of sex workers. It is so interesting that they feel they have that right. I would like to see if a law like this can happen in any, any, any other area! [...] It would be immediately protested as an infringing on human rights, basic rights, privacy rights. Again, it is how the state perceives the sex worker as a public object even in their private lives. So the state can go and regularize how the sex worker spends her money. [...] These laws come from all other types of ideas, myths, which were acceptable not long ago. - Patricia, sex work ally
... the [sex worker/pimp] relationship is one based on the victim and the monster, the monster pervert, the monster pedophile, whatever, it's always a monster. - Maria Belen, sex work ally
231 This all comes from a real lack of understanding of how the sex industry operates and why people get involved. You don't have to entice somebody to enter the sex industry. They do it themselves by making a rational choice based on their circumstances that are largely economic and from that perspective you can say that the government, by virtue of cutting social welfare rates, that puts people into positions where they have to make choices about engaging in sex work. Sure there are certain people who are vulnerable, there are always vulnerable people in bad situations where people can take advantage of them, but by and large the sex industry is full of people who just need to make a little more money because their jobs don't pay enough or because they 're lone mothers and they can't make enough money at other jobs and other jobs aren 't flexible enough. So I think the law is misguided. - Julia, current sex worker
Everyone has an opinion on the big bad pimp. However, very few people have actually taken the time to read the law. [...] ...it criminalizes all of my normal, healthy relationships. We 're not allowed to have a roommate, we 're not allowed to have a lover, we 're not permitted to really have a friend, because that friend would probably be habitually in our company. - Valerie, former sex worker
... in the public's mind and I think in politician's minds, there is this mythical and distorted image of the quote unquote pimp. When people talk about the procuring laws they are thinking about pimping, about physical abuse, coercion, again a lot of racist and really class biased imagery. And it's simply not true. [...] ... the stereotype and the construct of the pimp is so deeply enmeshed in our culture. It's a big, big thing and it speaks to so many different fears around women, around sexuality, around money, around immigration, around race, it goes on and on and on. - Kara, current sex worker
Others critiqued the procuring section as violating sex workers' basic labour rights. In order to not contravene the Criminal Code, sex workers must only ever work independently. Indeed, managers can be charged with procuring for influencing someone to sell a sexual service. As explained below, however, not all sex workers
232 want to work independently; some prefer to have a manager to take care of the business aspects of the job:
Some people are really good at managing their money and other people want an accountant. Some people want to book their own calls and other people don't possess the skill or would rather not have that as part of their working experience. [...] If it is illegal for people to do that kind of work, then you're taking away what could potentially be a safety net as well as basic structures in a work setting. [...] Those are the basic options that we should all have - to be independent, to be working in a structured environment — with co workers, managers etc. to be freelance, those different options. Taking that away forces people to do things that they may not necessarily have the skills for or the desire to do. - Keisha, sex work ally
People sometimes ask me, "Kara, after working independently for many years why did you go back to working in the parlor? " And I say, "Because it was convenient. " I went back to school and I didn't want to bother with the time and the energy and the money and resources necessary to run my own business, it was easier to go and do a couple of eight hour shifts - no muss, no fuss, did my shift, went home, fucked off, I was done. I didn't have the same safety concerns, I didn't have to invest money upfront, it was excellent for me. - Kara, current sex worker
Not everybody has the resources or wants to work independently, some people want to go to work and just go to work. It makes it illegal for someone to be an entrepreneur and run a business, in Western society that's a right in most fields and is regarded as a virtue. Culturally and socially, it's seen as a good thing to do, to run a business and be a self starter and be self employed and employ others and all of that. - Robert, former sex worker
Because the law criminalizes the sex worker/manager relationship, managers need to keep a distance between themselves and the sexual services being sold or risk both bawdyhouse and procuring charges (Jeffrey and MacDonald 2006, 32). This distance can have negative consequences for sex workers:
[Theprocuring law] means that managers or owners/operators aren't clear with the clients about the nature of the service. It means that often women are placed
233 in situations where there they are in a private space with a client without having negotiated the terms and conditions of the service — it could mean safer sex, it could mean price, it could mean the type of activities, it could be the length of time that you are spending — and this is a real recipe for danger. Suddenly you are alone in a room or in a car or another environment with somebody who might have a completely different understanding of what is going to transpire than what your understanding is. This is simply because there hasn't been the opportunity for that negotiation to take place, particularly if it has been arranged through a third party who is wanting to protect themselves and build a little bit of a buffer by not being clear about what the services are. - Kara, current sex worker
Further, as Jacqueline Lewis and Eleanor Maticka-Tyndale (2000) confirm in their study of escorts in Windsor, the procuring section of the Criminal Code can be applied to a sex worker who brings a friend or co-worker to see a client who requests a
'double'108 (Lewis and Maticka-Tyndale 2000, 439).
In addition to the criminalization of managers and possibly other sex workers, the procuring legislation stipulates that an individual who lives off of a prostitute's earnings can be criminally charged with "living on the avails" (section 212, lj).
Charges can be laid against individuals presumed to be guilty of living on the avails just by virtue of living with or being "habitually in the company of a prostitute... in the absence of evidence to the contrary..." (section 212, 3). Therefore, one can be charged with this section of the procuring legislation in absence of proof of coercion
(Betteridge 2005,16). As Allinott et al. argue, the living on the avails section of the
Criminal Code "potentially exposes roommates to prosecution if a sex workers' earning pay for rent and household expenses" (Allinott et al. 2004, 15). This section directly affect sex workers' relationships and the ways in which they can legally
108 A 'double' is when a client requests to receive sexual services from two sex workers.
234 interact with significant others. Sex workers and allies were very critical of the living on the avails section of the procuring law:
It's certainly not applied to any other kind of work, which is very interesting. [...] That whole 'living off the avails ofprostitution' is one of the most outrageous... I mean, they are all outrages... but some are more outrageous than others. Can you imagine in any kind of heterosexual marriage where only the man works and the wife stays at home, she's a parasite! We can parallel that in exactly the same way and certainly we would never do that. - Maria Belen, sex work ally
Additionally, the procuring legislation was criticized for impacting sex workers' personal lives and causing stress in their relationships:
Well first of all, it's nobody's fucking business. It's appalling. [...] Obviously, it impacts your relationships... It's so heart-wrenching to imagine your partner being put through that... having to have them take that risk. That definitely would impact your personal relationships. - Sasha, current sex worker
Personally, speaking from my own experiences, I have this awareness that when I take my partner out for dinner that that is technically illegal. If my partner accepts money from me, that's illegal, even though I know the court has ruled that has to be parasitic. - Julia, current sex worker
Certainly 'living on the avails' is a charge that can be laid against personal partners or roommates or family members of a sex worker. Again, these charges aren't frequently laid, but the very fact that they could be really puts a chill and puts a damper on people's relationships and whether one discloses to their partner that they are in the sex trade -- or how much they disclose because they don't want it coming back on their partner. I've met many women who have said it's been a real challenge on the relationship — not the actual sex work itself — but having to hide from the partner or worried about what's going to happen to the partner... - Kara, current sex worker
While lower courts have ruled that the relationship between the sex worker and the person living on the avails has to be 'parasitic', how one defines parasitic is open
235 to interpretation (Davis and Shaffer 1994; Barnett 2008). A court could conceivably rule that the relationship between a sex worker and her child, or other family member, is parasitic. Therefore, many of the interviewees were concerned about the implications of this law on family members and dependants specifically:
As a parent who is also a worker, your child could be considered living off the avails and that could be considered a parasitic relationship. That means that you can't buy something for your child. What working parent should preventedfrom purchasing their child a gift - or even basic living necessities... - Keisha, sex work ally
This would make it really hardfor a kid of a sex worker. It would make it really difficult for whoever the sex worker is supporting with their money. Often sex worker support themselves, but they often are also supporting families. It makes it difficult to live securely, feeling like you can't actually let people know about your work or your kids won't get fed... - Renee, current sex worker
In a roommate situation they could consider that parasitic if a roommate was on disability, on EI, had lost their job, was paying less rent... This law affects all areas of your life — your partner is then considered a pimp, regardless. Or if you have an adult child living at home, some folks would consider that parasitic. If there is an adult offspring living in the house they 're living off the avails of their parent. It criminalizes what in any other industry wouldn't even be an issue. - Lisa, former sex worker
Interviewees were also critical of the gendered assumptions and stereotypes imbedded in the parasitic discourse:
It would be a little bit different if most sex workers were men, then I wonder if the relationship would be parasitic.
How so?
Because there's this assumption of the typical kind of role of men and women and who works... the typical division of labour that the man goes out to get the bacon and the women stays at home. It just so happens that there are more women who are sex workers so that kind of imagery and that kind of metaphor seems to work — because no man should rely on a women. If it was the other way around I wonder
236 if the same language would be used, it might be the same law, but I wonder about the language. And just the cultural association, if the guy is at home, and this is assuming that the parasite relationship is between a man and a women, under other circumstances if it was the guy who is unemployed and the woman who is working, it's always a different kind of connotation. It's very different than if it was the other way around. - Maria Belen, sex work ally
I'm sure there's a gender bias... I don't know if anybody has actually looked into it in terms of the numbers, but I would imagine that a woman who is supporting, in full or in part, a male partner through her earnings as a prostitute, she going to be seen as exploited and a victim more than if the roles were reversed or if the other partner were a female. - Kara, current sex worker
In addition to family members and housemates, under the procuring section managers, owners, and operators of sexual service establishments can be charged with procuring offences (Lewis and Maticka-Tyndale 2000, 439). As Betteridge's research has demonstrated, escort agency owners have indeed been charged for living on the avails even when coercion was not proven (Betteridge 2005,16). The criminalization of sex workers' intimate and business relations, therefore, has negative consequences on sex workers' lives and working conditions.
As the data excerpts above contend, the prohibition of drivers in section 211 puts sex workers in the precarious position of either having to rely on public transit or risk criminal charges against their friend or partner. The procuring laws of section 212 and the prohibition of cohabitation and living on the avails of a sex workers' earnings further marginalizes and criminalizes sex workers' intimate and business relationships.
As sex workers and allies have argued, the mythologies about pimps and the misunderstandings about the sex industry that underlie the procuring laws have grave
237 consequences in sex workers lives; managers need to deny the sexual nature of the work or else face possible charges and family members can be potential charged for the simple act of living with a sex worker.
Suggestions for Workplace Improvements: Sex Worker's Perspectives
In light of the harms caused by the different sections of the Criminal Code, sex workers and allies involved with Maggie's put forth a variety of suggestions on how to improve their working conditions. While some of theses suggestions (for example workplace contracts and the eradication of house fees) can be implemented under the current legislative framework, other suggestions (for example formal labour organizing) will only be fully realized after the sex industry has been decriminalized.
While interview participants were nearly unanimous in their recommendation and endorsement for decriminalization as a necessary step towards labour legitimacy and establishing occupational health and safety standards, the process of removing the prostitution-related offences from the Criminal Code may take many years. As such, the sex workers' rights movement in Canada must maintain a multi-pronged approach in its political organizing effort. That is, it must focus on the current realizable goals that can be achieved on a smaller scale within individual workplace establishments, as well as longer term and larger transformational goals of complete decriminalization.
238 Since sex workers' endorsements of decriminalization109 have been well documented elsewhere (Scibelli 1987; Delacoste and Alexander 1988; Pheterson
1989; Chapkis 1997; Allinott et al. 2003; PRA 2003; Leigh 2004; Childs et al. 2006;
SPOC n.d.), the interview questions and responses regarding ideal sex industry workplace conditions focused primarily on areas of change that can begin to be achieved prior to the removal of prostitution-related offenses from the Criminal Code.
Specifically, Maggie's respondents considered the immediate need for labour rights and protections both within individual workplaces and across sectors, that can be improved, updated, and modified post-decriminalization. The greater the supports and protections that are in place and the more the sex workers' rights movement has considered the most effective ways in which the Criminal Code sanctions should be removed, the more likely it is that decriminalization will support sex workers labour rights as opposed to de facto regulation at the municipal and provincial levels. Indeed, sex workers must be active members of the review and research committees and consulted during the decriminalization process in order for the new policy framework to best support their labour legitimacy and rights. Broken into two subsections, excerpts from the interviews are presented to show the diversity of perspectives on how to establish workplace rights and how to organize for sustainable long-term improvements.
109 For further discussion of decriminalization specifically, Chapters 3, 4, and 7.
239 Improvements Within Workplace Establishments
When asked specific questions about how to improve the conditions of employment within individual workplaces, Maggie's sex workers and allies put forward a range of concrete recommendations. Interestingly, all of the interviewees' suggestions revolved around basic labour rights and protections; no idealist or impractical recommendations were presented. For the most part, suggestions centered on employment contracts, access to worker's compensation, anti-discrimination policies, breaks and vacations, getting paid for all of the services provided, and basic cleanliness.
For some of the Maggie's respondents, employment contracts in particular were seen as a viable way to establish workplace rights. However, as Canadian research on sex work has suggested, due to the criminalization of the sale of sexual services, "sex workers are limited in their ability to enter into written employment contracts that disclose their true professional responsibilities" (Childs et al. 2006, 89).
Yet, if a sex worker's employment responsibilities are not fully articulated in the contract, it limits his or her ability to organize for improvements. Childs et al. draw on the New Zealand example to argue in favour of contracts that outline hours, benefits, wages, conditions, and duties, with one significant caveat; that "a person may, at any time, refuse to provide commercial sexual services, even if they entered into a contract to provide those services" (Childs et al. 2006, 89). This caveat supports the necessity of sex workers sexual consent in interactions with clients.
Prior to decriminalization, however, limited versions of employment contracts
240 can still be beneficial for sex workers. Even if the contract does not stipulate the specific sexual services provided, the very fact of the contract can provide protection and support. As described below, the contract is a way to prove one's income and employment status as well as a possible springboard for internal employment negotiations:
Of course it would be wonderful to have an employment contract and proof of income... I know that not every worker would agree because a lot of them don't want to pay taxes on that money, but I would be happy to be able to claim my money so that I can get a loan or whatever. I can't prove that I make very much money even though I can pay for things. That frustrates me. How to rent an apartment becomes a real problem. [...] If you have your employment contract in place then you can start negotiating for something to compensate you for the hours of work. [...] We need some means to be able to change poor working conditions... We need to have some legal grounds to be able to negotiate.... instead of having to wash all that laundry at the massage parlour you can say no, it's not in my job description. - Julia, current sex worker
Employment contracts could also facilitate access to worker's compensation if sex workers were to injure themselves at the worksite. In currently regulated sectors like massage and dance, for example, a contract that proves employment status could be used to gain remuneration for work-related harm:
If you fall and get injured at work there's a whole aspect of compensation. There's a lot of injuries that happen, and I don't mean in terms of violence, I'm talking about the high heeled shoes or falling when you are a dancer or working at the massage table or repetitive strain injury. [...] There's all sorts of occupational injuries that happen outside ofSTI's, which are also a risk, but whatever, there are other things that are much more pressing. The shoes, I tell you the shoes, they cause a lot ofproblems with knees, back problems for dancers, because they're on their feet all the time! Massage attendants are on their feet all their time too, I'm not as an escort, my shoes are only on for 10 minutes... That's why I couldn't survive as a massage attendant, my feet couldn't handle it! - Julia, current sex worker
241 In addition to employment contracts and worker's compensation, the sex workers and allies interviewed advocated anti-discrimination policies as protection from unfair hiring and firing practices. Childs et al. similarly contend that sex workers should have access to the hiring protections as outlined in provincial Employment
Standards Acts (Childs et al. 2006, 146). Specific workplace policies targeting discriminatory practices can be created and implemented prior to decriminalization taking affect and can therefore begin to protect sex workers' employment rights more immediately:
Discrimination policies in place... serious discrimination, racism, sexism, ageism, homophobia, gender issues... Those would be important processes. Just because in this particular strip club, the majority of the women who work there are 6 feet tall, blonde, blue eyes, DD breasts, doesn 't mean that a woman who is 5 '2, a brunette and a woman of color wouldn't have the same rights to work there, or to even be hired there, as anyone else. Because it is an industry of looks, right? So those type of rules should be adhered to... no one should be discriminated against. - Lisa, former sex worker
...some of the equity rules, like the black girl limit for instance, the limits on the race of dancers in the club are unfair, and not very reasonable either. - Alysa, current sex worker
Further, basic employment rights like payment for services provided and adequate breaks were at the top of most interviewees' lists of workplace improvements. Indeed, some of the sex workers interviewed expressed frustration at not getting paid for their time spent on stage, in the case of exotic dancers, or not getting paid for cleaning duties, in the case of massage attendants:
242 I think it would be a good idea to offer pay for stage shows. [...] I didn't mind nude dancing, but I know at least one of the other women was really uncomfortable with it, for her own reasons. She didn't want to be naked on stage for free. - Alysa, current sex worker
... all of our work [should be] paidfor which doesn't happen in massage. The women in these parlors are doing laundry and doing these things unpaid. They come to work for seven hours and they don't get paid and that's appalling. That would never happen anywhere else, it's ridiculous. [...] They clean and wash the floors and they don't get even the $5.35 that waitresses get. They don't even get that. And you hear a lot people crying about how sex workers are exploited victims and everything, well they wouldn't be if they had access to some of these labour protections! It's ridiculous. Sex workers still have to come to work on time and listen to a manager. They have responsibilities and things that they have to do, it's a job. Especially because they are on a schedule and have to work a certain number of shifts — in massage you have to be there for seven hours. - Julia, current sex worker
Childs et al.'s research with indoor sex workers in Vancouver similarly found that in some establishments, massage workers only received pay when they saw clients and were made to perform duties such as cleaning without financial compensation (Childs et al. 2006, 26, 30, 98). Interestingly, while some establishments expected sex workers to clean without payment, in other workplaces lack of cleanliness was a major issue (Childs et al. 2006,27). Many of the dissertation's interviewees talked about the low levels of workplace sanitation as a common problem:
A lot of the clubs change rooms are appalling, they're dirty. These are women who most of the time are naked and I don't think that places have been cleaned in years. I'm thinking about the changing room specifically because these are the places where women spend a lot of time getting changed, talking, just relaxing. These need to be comfortable places with air, that are clean, that have showers. This is very demanding work - the women sweat a lot and a lot of these places don't have showers. I've never seen one that has towels so you need to bring your own towel. - Patricia, sex work ally
243 Just cleanliness, generally, in the areas where the dancers go, the change rooms. We're often walking around barefoot. So a minimum standard of cleanliness, maybe hiring a cleaner. - Alysa, current sex worker
Maggie's respondents also critiqued the system of mandatory pay-outs, tips, and club-fees that many workplaces, formally and informally, support. Sex workers are often made to tip managers and club staff, none of which is documented; these tips can dramatically reduce the amount of money sex workers take home after a shift.
Interview participants identified that the eradication of such tip-out practices would improve their workplace satisfaction:
Mandatory tip outs aren 't fair — to the managers and sometimes to the DJs — because basically it means is that the dancers are paying all of the overhead. We are paying for stuff that the managers should be paying for. They should be paying the employees and the other staff members, not the dancers. - Alysa, current sex worker
... if you only make $100 at night you might walk out with $20 after you pay your club fees. Stuff like that has got to stop. Those clubs make enough money. - Sasha, current sex worker
In addition to the tangible intra-establishment recommendations above, some of the interviewees raised more general ideological and political suggestions for change. It is arguable that without a transformation in the way that sex work is conceptualized, decriminalization will never be actualized. As the policy debates in
Chapter 3 and the international research in Chapter 4 have demonstrated, the ways in which sex work and sex workers are conceptualized directly informs the ways in which sex work and sex workers are regulated. Therefore, the current social
244 conception of sex work in Canada will need to be shifted from the more common radical feminist position of prostitution as exploitation to a discourse of sexual labour if the policy framework is going to shift from prohibition to decriminalization.
A number of Maggie's respondents identified misconceptions and stereotypes of the sex industry as contributing to the overall stigma and discrimination that sex workers face in general. This in turn was articulated as contributing to the overall low levels of workplace rights and basic job protections. For example, as explained below, sex workers should be considered 'full citizens' and 'subjects of rights':
Any changes to be made need to be based on taking into account that the women as worker, sex worker, should be the subject of rights. [...] There has to be a change to the frame. What is wrong is where this frame or this perspective is coming from. -Patricia, sex work ally
The sex workers and allies interviewed almost unanimously advocated that sex work should be treated with the same frame of understanding as other forms of work and that the work itself needs to be legitimated:
Legitimization of the work is probably at the forefront of any real attempt to create any procedural stuff. Because once you have that then is easier to acknowledge certain protections. [...] So that needs to be first and foremost basis of any kind of attempt to insert procedural stuff. - Maria Belen, sex work ally
I think the same type of labour laws that apply now for other industries would need to be put in place for the sex industry. - Lisa, former sex worker
Sex work needs to be demystified. There are a lot of archaic ideas around what it is like. - Keisha, sex work ally
245 In order to be seen as legitimate, socially, we should go with employment standards and not try to have a whole lot of specialized policies.... I just don't know that it's a good policy to continue the distinction between sex work and real work. - Robert, former sex worker
...just regular workplace standards that the government currently handles, if they would take our complaints seriously, we would be in a much better position than we are now. Just simply taking our complaints seriously would help. The same folks are saying how awful and degrading the work is but they aren't doing anything to improve those conditions. They're blinded by their own moralism. - Alysa, current sex worker
A reconceptualization of sex work as sexual labour, as argued in Chapter 1, might well have a trickle-down effect that leads to tangible improvements within workplace establishments prior to decriminalization coming into effect. Indeed, sex workers attempting to implement workplace right's policies might receive more support both from their co-workers as well as from management when and if sex work is understood in labour-based terms.
Grassroots, Sector Specific, and Formal Labour Organizing
Most of the sex workers and allies interviewed had at least some background in labour organizing. Ranging from very localized and grassroots workplace rights campaigns to formal engagements with specific unions, some interviewees had experience with labour organizing within the sex industry whereas others supported initiatives outside of the industry. Alysa, Renee, and Lisa, for example, were part of unionizing campaigns while working at mainstream businesses and organizations.
Sasha's labour organizing background was in the form of education and awareness
246 through her nationally syndicated sex column and through her activist burlesque performances. Patricia and Maria Belen had both been active in their academic union in addition to supporting sex industry labour organizing campaigns as sex work allies.
Keisha, Julia, and Robert had not participated in any labour rights campaigns or initiatives prior to their involvement with Maggie's. And finally, long-time sex worker activists Kara and Valerie had both founded sex workers' rights organizations and had been involved in sex industry labour campaigns for well over a decade.
The diversity of organizing experiences and backgrounds of the interviewees provided rich suggestions for establishing labour rights within the sex industry.
However, when asked specifically about the effectiveness of organizing strategies, the interview participants had differing thoughts and opinions. Perhaps because of the largely hypothetical nature of sex industry labour organizing, due to the criminalization of many of the activities, interview responses to these questions were the least unanimous and coherent; some suggestions were in agreement and others contradicted one another. During their responses, sex workers and allies kept coming back to the same key concern: the difficulty of labour organizing in a criminalized context. As Chris Bruckert, Colette Parent, and Pascale Robitaille (2003) assert in their study with 14 sex workers in Montreal and Toronto, "since some aspects of their work are illegal, the women have little recourse for negotiating their working conditions, and can lay a complaint neither with a potential union, nor with the labour board" (Bruckert, Parent, and Robitaille 2003, 18). Certainly, it would be very difficult to legally act upon some of the suggested changes put forward by the interviewees
247 under the current Canadian policy framework.
Some labour organizing ideas that could indeed be initiated prior to decriminalization consisted of organizing centered around small-scale and informal grassroots initiatives:
... organizing at the grassroots level for people to say thank you to the hooker on the street corner, "You're doing really good work, you look really good tonight. " Empowering in that kind of way. Maybe that's what we need to do from a ground up kind of place... - Renee, current sex worker
Indeed, some of the interviewees advocated working together within individual workplaces to demand rights and protections:
I think that people who work in structured workplaces probably do underestimate the impact they can have. [...] If everybody in a place that says, "We are leaving unless you do this... " the owner might just say "Fine, leave. " But then they are stuck... they aren't going to make any money. - Robert, former sex worker
I think the smaller scale the better. Generally, a lot of sex workers, myself included, don't like the idea of an overarching authority telling them what to do in their own workplaces when they might not know what the circumstances are specifically. So smaller groups, maybe in-club groups might work better. - Alysa, current sex worker
For the most part, however, the majority of those interviewed advocated for a combined approach to sex industry organizing that would include aspects of informal grassroots, sector specific, and formal unionizing strategies. It was argued that because of the variety of sex industry work establishments and sectors as well as the diversity of individuals working, labour organizing should happen in diverse ways. Flexibility
248 was seen as key to achieving basic rights and protections, as this would accommodate different sex workers' needs based on their work experiences:
I think there can be some overarching rights but there also has to be something very specific to each sector. For example working out calls is going to have different issues coming up than working in-calls or massage parlors. There has to be something that would be specific to each sector but at the same time having some kind of basic unifying structure would be really beneficial. - Julia, current sex worker
One of the few truisms about the sex trade is that it's extremely diverse. There are many different ways of working and many different workers. There's not going to be one size fits all. [...] One of my concerns around labour organizing and talking about guidelines or standards is that I would not, in any way, want to promote or be part of a building a system that excludes one group of workers at the benefit of others. In concrete terms, that means that there's going to be some workers in any sector who would rather be an employee than a freelancer. There are some people who really want the security of an employee job. [...] There are other people who want flexibility — they want to come in when they want, they want to be independent contractors... And those are really valid ways of working. In fact, one individual might prefer one model at one stage of their career and a different model at another. I don't see why there's a reason that we couldn't have both. There are lots of industries where people work in different ways. I could be an accountant at a big corporation or a little organization — I get my weekly paychecks, my benefits, or I could be a consultant or a freelancer. The other option is to be completely self-employed. I think that there is room for all of that. - Kara, current sex worker
At the same time, most of the sex workers and allies interviewed argued in favour of some sort of large union structure to represent a collective sex worker voice.
This pan-sector, industry-wide, organization was seen as an effective way to bring together a range of sex industry workers in order to have increased lobbying and political power. Even Canada's largest union, the Canadian Union of Public
Employees (CUPE), has advocated for sex worker unionization and decriminalization.
At the 2001 CUPE National Convention a resolution was passed in support of the
249 decriminalization of prostitution (CUPE 2004,2). A year later, in 2002, the Canadian
Labour Congress, representing over 2.5 million unionized workers across Canada,
"called on the entire labour movement to work towards supportive measures for sex trade workers" (CUPE 2004, 3). Interestingly, in an unpublished background paper titled, "Sex Work: Why It's a Union Issue," CUPE supports sex workers right to unionize, however they make clear that they are not seeking to organize them due to
'legal impediments.' They state, "labour laws... do not provide for the unionization of autonomous or contract workers where there is no clearly defined employer/employee relationship. Also, it is unlikely CUPE could get union certification for workers involved in what is essentially an illegal activity" (CUPE 2004, 4).
As the sex workers and allies interviewed for this dissertation argue, a large union structure post-decriminalization could negotiate for benefits and protections within different workplaces:
A giant union would be good because when I think about having one huge union that would cover all industries would be that it would have some the harder things down pat — like health and safety stuff. Although, there could be different occupational health and safety things based on being a dancer or being massage. For some of those key things like drug and health benefits I think there should be a large union. It is my ignorance around unions, but I think having a bigger union would be more effective than having something small and independent where there is not much accountability. - Keisha, sex work ally
I think you have to be a collectivity otherwise you don't have any power. I don't know a lot about organizing but I don't think that organizing an individual workplace would be a powerful enough group to negotiate with the owners or operators. - Julia, current sex worker
250 Because there is power in numbers, so if we have one big union for all of sex workers and then little divisions of that union, depending on the sector of the industry -- your porn sector, your escorting sector, your street prostitution sector, your dancing sector — I think that's what I would like. And then certain policies and procedures within each one that are governed by a larger one for grievances. [...] If it has been a proven strategy for unions... than that's what we should have. - Lisa, former sex worker
A number of interviewees noted, however, that large-scale unionization was a distant goal considering the more immediate necessity of basic protections under criminalization.
Others disagreed that a large union structure would be able to effectively represent the range of needs of sex industry workers. One interviewee supported an overarching sex workers' rights movement that would advocate for decriminalization but was doubtful about how a unifying structure could adequately respond to diverse interests:
I think it's good politically as a tool for decriminalization and for solidarity but I don't see it as having... I don't think it is a fine enough tool for making specific changes in people's workplaces. But again, I think there is a real value in that kind of movement — the sex workers rights movement... - Robert, former sex worker
Similarly, other interview participants were skeptical of how successful a large union structure could be given the internal political dynamics and conflicts that can arise when many interests are being negotiated:
I don't have that idealized 'all of us unite' thing going on. I know what happens when everybody gets together. Ideally, you have one massive union that everybody's support, and they are, like "Idon't care she's my sister. " That would probably have to happen, but I don't know how well it would work out... You have a lot of that issue, where women aren't necessarily embracing the positives... the positive feelings about their job. They aren't proud of it. It might be difficult to galvanize a whole huge group.
251 - Sasha, current sex worker
Getting everybody to agree on a collective agreement! [Laughter] It's not impossible and I'm sure every sector, every union or collective agreement that has been formed over the years in the history of unions has had those struggles and challenges and they have risen to the occasion and met them. You just do it. You just get through it. We 're not a bunch of idiots; I think we can manage to hammer out a collective agreement amongst us. - Lisa, former sex worker
Most of the people interviewed were supportive of the union structure of formal sex work labour organizing but were also aware of the possible barriers and challenges. The most common barrier identified was the stigma surrounding sex work.
It was argued that because sex workers face such high levels of stigma and discrimination due to their jobs, it is very difficult to build a politicized movement in which all sex industry workers are motivated to participate. It is common for sex workers to want to publicly distance themselves from their work for fear of reprisal from family and friends (Wijers 2004; Self 2004). Additionally, there are many individuals who work in the sex industry who do not want to be labeled 'sex workers.'
Instead, they consider themselves 'exotic dancers' or 'massage attendants' as these
labels are seen to be less stigmatizing. Therefore, the distancing of sex workers from the sex worker's rights movement presents unique challenges for labour organizing:
A lot of the time strippers identify as dancers, artists, choreographers and not as sex workers, some do, but not many. It's a shame, because the most people that could come together would create the most strength. - Patricia, sex work ally
Because of the stigma, if you say 'sex work' for a lot of these women they don't think of themselves that way. By and large, they aren't politicized around sex work and this is really something that they're doing because they need to make money or
252 because they are students or whatever. Understandably, they don't take on that identity and to start becoming politicized you need to acknowledge what you're doing a little bit. [...] They think it's not a real job because it is so delegitimized in every possible way. They think this isn't a job, it's just a quick way to make money, that's all it is. They don't put it back into the realm of labour. [...] That happens with all forms of women's work but in the sex industry more so. It is totally delegitimated in the eyes of the workers themselves. They don't see themselves as workers and they don't think about labour rights or anything like that. - Julia, current sex worker
Another major barrier to unionization is the necessity of an employer/employee relationship. Indeed, as will be discussed in greater detail in the subsequent chapter, many sex workers do not have an employer and instead work independently, either as independent escorts (both indoor and outdoor) or as independent contractors at different dance clubs or massage parlours. In these instances, a possible avenue for sex work labour organizing is the establishment of sector specific associations. A dancer's association, for example, might be more appealing for some sex workers to join as it carries with it an air of professionalism, thus potentially mitigating some of the barriers to organizing created by social stigma.
As Bruckert, Parent, and Robitaille argue, unlike other independent contractors, for example massage therapists or realtors, sex workers are "not afforded validation through provincially-authorized professional associations" (Bruckert, Parent, and
Robitaille 2003, 15). Interestingly and surprisingly, however, when asked about which organizing level, or combination of levels, they thought would be the most effective for establishing sex workers' rights (intra-club grassroots organizing, sector specific professional associations, or large-scale unionization), the dissertation's interviewees
253 rarely acknowledged professional associations as potentially beneficial; most often they focused on either grassroots intra-club changes or a large sex workers' union.
One respondent in particular raised concerns and questions about what a sector
specific association would look like and how it would function:
Professional associations... I think that would be an option for people who want to work independently, either as self-employed or as independent contractors. Again though, my one concern would be, what sorts of regulations or guidelines would be in place? Who would be determining those, who would be enforcing it? Would we end up with a two or three-tiered system where, for any number of reasons, some women choose to or are able to comply and others do not? - Kara, current sex worker
Despite the concerns raised, associations could prove to be an effective lobbying tool
for improved workplace standards and protections. In the Ontario context, sex worker associations have tended to be exotic dance focused, for example the Dancers Equal
Rights Association of Ottawa-Carleton (DERA), the Exotic Dancers Association of
Canada (ED AC), and the no longer functioning Exotic Dancers Alliance of Ontario.
While under resourced and not particularly active110, these associations can provide
important support and mobilizing efforts for workplace improvements.
Another key barrier to successful sex work labour organizing, as articulated by the Maggie's respondents, is the transient nature of the work. It is common for people to move from one worksite to another and from one sector of the industry to another.
While this flexibility is desirable for many, it can simultaneously create challenges for
labour organizing:
110 At the time of writing, neither the Exotic Dancers Association of Canada nor the Dancers Equal Rights Association of Ottawa-Carleton websites were functioning. See www.exoticdancerscanada.com and www.dera.home.dhs.org.
254 One of the challenges with any sort of sex worker organizing, whether it's within the labour context or not, is that it can be very transient. Women go in and out of the sex trade, or they go in and out and between sectors, or they move around geographically, so it can be really difficult to get that sort of critical mass. - Kara, current sex worker
Additionally, interviewees identified the day-to-day realities of the criminalization of sex work as a major barrier to successful organizing:
One of the biggest problems around labour organizing and sex work is how do you organize when you have to worry about not getting arrested? And I think the people who do it are so admirable because they are risking a lot. - Maria Belen, sex work ally
Despite the challenges and diverse perspectives, the interview participants were unanimous in arguing that labour organizing, in one form or another, was essential for improving sex workers' workplace conditions. When asked specifically about what would be necessary to achieve a strong sex worker's labour movement, many of the interviewees articulated that social, political, and ideological changes were vital. Additionally, the conceptualization of sex work as legitimate sexual labour was seen as key to both labour organizing campaigns and decriminalization:
What would it take for the laws to change? Huge public outcry. What would it take for a huge public outcry? To change our ideas around sex workers. [...] Attitudes around it needs to change — socially, in our consciousness, in our community sense of what work is, what work is valid... - Renee, current sex worker
Ifeel that this point, the best we can do is within our own communities, sex work communities and broader communities, is continue to use the language of sex work and to present ourselves and conceptualize issues in a labour context. So when we are talking about safer sex, it's an occupational health and safety issue. When were talking about violence against sex workers, it's an occupational health and safety issue. Not just use the language but really build that construct and that
255 understanding around our work and around our activities so it's then construed and understood as work. Then you start to build a bit of a snowball movement. - Kara, current sex worker
Similar conclusions were drawn in Childs et al.'s Vancouver-based research. They
argue that sex workers' right to form labour unions needs to be respected, however it
only be achieved with "decriminalization of employer/employee relationships within the sex industry" and when "sex workers are recognized as legitimate employees"
(Childs et al. 2006, 223).
As the above data excerpts suggest, sex workers and allies have contending
views and recommendations on successful labour organizing campaigns. It is not
surprising that there would be differences of opinion regarding how to improve their
current labour-related situations. Given the diversity of sex industry jobs and sex
industry workers, creating labour solidarity among and within sectors could prove to
be a challenge. Where there was near unanimity, however, was in their
recommendations for basic workplace protections and decriminalization.
Conclusion
Similar to the findings from other Canadian research on sex work (Bruckert,
Parent, and Robitaille 2003; Allinott et al. 2004; Lowman 2005; Betteridge 2005;
Childs et al. 2006; Jeffery and MacDonald 2007), the sex workers and allies
interviewed for this project unanimously argued that the laws that govern the sex
industry do more harm than help. Their diverse backgrounds in the industry provided a
valuable level of expertise and knowledge that directly informed their critiques of the
256 current system. Indeed, the criminalization of prostitution-related activities was attributed to causing an increase in sex workers' exposure to violence and a decrease in workplace satisfaction and safety. The need for secrecy and to work in isolation in multiple unknown locations in addition to the criminalization of drivers, managers, and co-habiting family members and partners was routinely raised as contributing to work-related stress and vulnerability. Additionally, due to the criminalization of communication, sex workers are not able to advertise their services nor promote their business, thus affecting their financial gain. During all of the interviews conducted for this research project, sex workers and allies clearly articulated that sections 210, 211,
212, and 213 of the Criminal Code have detrimental effects on their basic labour rights and working conditions.
In response to these detrimental effects, strategies for labour organizing, such as grassroots activism, sectoral groups and organizations, and formal unionizing, were seen as necessary. Specifically, grassroots organizing within individual workplaces was identified as beneficial for advocating for basic rights, like cleanliness and employment contracts, whereas sectoral organizations, for example a dancers association, could set standards across establishments. While some of the interviewees advocated small-scale workplace specific campaigns, the majority of those interviewed were in support of campaigns for unionization. Large scale sex workers' right organizing was determined as important for mobilizing large numbers of industry workers and supporters to lobby for political and social change. Interviewees agreed that a galvanizing force in support of labour legitimacy could effect lasting social
257 change. Even the sex workers and allies who presented concerns about how effective a large union-type structure could be in individual workplaces still saw the need for a unifying body of sex workers from across different sectors. Perhaps most importantly, this pan-industry organization could advocate for decriminalization and legal reform.
While most of the interview participants strongly advocated for decriminalization, some articulated areas of support for the largely unregulated system as it currently stands. It was argued that the lack of regulation could lead to more flexible workplaces and a freedom of movement from one worksite to another.
Further, some were hesitant to fully endorse a decriminalized system until the stigma and discrimination surrounding sex work is reduced. There was fear that if the prostitution-related laws were removed from the Criminal Code, yet sex work remained stigmatized, that municipalities and provinces would dramatically increase their number and severity of penalties and bylaws. As it currently stands, cities and some provinces are attempting to circumvent the Criminal Code and regulate aspects of the sex trade through zoning restrictions, high licensing fees, highway and traffic bylaws, and proceeds of crime legislation. It is likely that this would continue, if not increase, if decriminalization was not accompanied by ideological and perceptual changes. As such, while the interview participants saw decriminalization as key to establishing occupational health and safety standards within the sex industry, there were some serious concerns and hesitations about when this goal should be realized.
As Bruckert, Parent, and Robitaille argue, "decriminalization alone does not ensure a safe working space for the women, nor does it guarantee the protection of their rights
258 as workers. Other steps must therefore be taken in order to encourage the recognition of sex work... as legitimate forms of labour rather than deviance or exploitation"
(Bruckert, Parent, and Robitaille 2003, 36).
259 Chapter 7
Concluding Recommendations: A 5-Point Action Plan for Labour Legitimacy and Social Change
The most important thing is everybody acknowledging that it is work It might be stressful work, but that doesn't mean that it's awful work. Sex workers can get stressed out, and maybe the work is more stressful than other forms of work or maybe not, depending on who you are or what is happening. That would go a long way towards improving our lives.
Alysa (current sex worker, interviewed January 22, 2008)
Sex workers, sex work allies, and sex work researchers frequently argue that legal and social changes are necessary in order to improve sex industry working conditions (Delacoste and Alexander 1998; Allinott et al. 2004; Clamen 2005a;
Clamen 2005b; Betteridge 2005; Childs et al. 2006). Indeed, as the research for this project has demonstrated, sex workers have too often been on the receiving end of harmful regulations, detrimental methods of social control, and invasive state intervention policies. This is apparent in the abolitionist framework in Sweden (Sambo
2001; Gould 2002; Ostergren 2004; Norway 2004; Svanstrom 2004), the legalized
Netherlands (van Doorninck 2002; Wijers 2004; Self 2004; Norway 2004; Bernstein
2007), and the criminalized context in Canada (Shaver 1993; Brock 1998; Jeffrey
260 2004; Lowman 2005; Hanger and Maloney 2006). As we have seen in Canada, policy makers and politicians have rarely actively solicited input from sex working communities in the policy development process (DoJ-C 1984; Canada 1985; Badgley
1998). This is in part due to the radical feminist conceptualization of sex workers as victims who lack agency and voice (Dworkin 1981; Barry 1995; Farley 2004; Hanger and Maloney 2006). When sex workers have participated in policy development, their recommendations have not been implemented (Allinott et al. 2004; Clamen 2005a;
Clamen 2005b; Stella 2005; Hanger and Maloney 2006), yet it has been well established by prostitutes' rights activists and researchers that the risks associated with sex work are often the result of laws and regulations that criminalize their occupations and workplaces and not the work itself (Allinott et al. 2004; Lowman 2005; Betteridge
2005; Maggie's 2006; Childs et al. 2006).
The findings from this dissertation support trends in the larger body of literature regarding the implications of criminalization on sex work and sex workers.
The specificity of my research, and how it contributes to the literature on the international sex workers' rights movement, is its unique focus on a particular geographic location (Toronto) and the members of a particular sex work organization
(Maggie's). Therefore, this dissertation both confirms findings and recommendations already made in other jurisdictions and contributes a new point of analysis from the perspectives of Toronto-based sex workers and allies. Accordingly, this concluding 5- point action plan is a summary of the triangulated findings from the dissertation's interviews with sex workers and allies, primary and secondary source materials on
261 both international and Canadian policies on prostitution, and writings by and about sex work and sex workers. The presentation and format for this final chapter is, in part, based on reports produced by community organizations in both Toronto and
Vancouver. Pivot Legal Society, the Canadian HIV/AIDS Legal Network, and Street
Health have all produced well-researched and influential reports from community- based research projects that have, in turn, influenced the format and design of this conclusion (Allinott et al. 2004; Betteridge 2005; Childs et al. 2006; Khandor and
Mason 2007).
The five recommendations that make up this concluding action plan center primarily around issues of labour legitimacy and social change (see Table 7.0). Each individual recommendation is presented along with a discussion of the rationale behind the suggestion and possible results if enacted (based on both the interview data
and external sources) as well as the primary area of responsibility (namely which level
and area of government has jurisdictional control over the content of the recommendation). Specifically, topics focus on: a reconceptualization of sex work and
sex workers; complete decriminalization; industry-wide health and safety standards;
unionization and other forms of labour organizing; and the cessation of problematic
licensing schemes. None of these recommendations are new. Indeed, similar
suggestions have been put forth in other countries and in other Canadian regions by
sex work researchers, sex work allies, and sex workers themselves. What are new,
however, are the concrete suggestions on how to implement effective policy, labour,
and social changes in the Toronto context.
262 Additionally, the process for developing and crafting these recommendations was both innovative and noteworthy. In action research style, the community with whom the study was designed was encouraged to contribute to and shape the concluding recommendations. Sex worker and ally interview participants were consulted and provided feedback on a draft of the action plan; all comments and suggestions were incorporated into the final version. The recommendations will continue to be workshopped over the coming months as further feedback and suggestions are discussed and incorporated. What this dissertation and this conclusion reinforce, therefore, is the importance of active engagement of sex workers and allies in the research process in order to create policy-relevant recommendations and sex worker influenced conclusions.
While the five recommendations make up the conclusion of the dissertation, they are simultaneously the starting point for further research projects. Each suggestion for labour legitimacy and social change will need to be carefully studied and analyzed in greater detail to more fully consider the implications for divergent sex working communities across Canada. Indeed, while most workers in Canada's sex industry would benefit from the actualization of the dissertation's 5-point action plan, additional studies into the specific needs and contexts of sex workers from different socioeconomic, geographic (for example, rural versus urban), gender, and racialized backgrounds will be useful.111 The recommendations below only address aspects and
111 Some such research has been conducted on Canada's east and west coasts. See, for example, Leslie Ann Jeffrey and Gayle MacDonald's Sex Workers in the Maritimes Talk Back
263 Table 7.0 Recommendation Rationale/Results Responsibility
- reduces stigma and discrimination Toronto's Medical 1.) A social and against sex workers Officer of Public Health; political - facilitates greater sex worker access Toronto's Chief of reconceptualization of to services and programs Police; the College of sex work; - supports sex worker's rights to Physicians and Surgeons; participate in committees and reviews College of Nurses; various levels of government - improves access to workplace 2.) The removal of all protections Federal Department of prostitution related - reduces stigma, violence, and Justice; Supreme Court offenses from the exploitation of Canada; Parliament Criminal Code of - protects civil rights (including rights Canada; of loved ones and business associates) 3.) The - ensures safe and healthy workplaces Ontario Ministry of implementation of sex in the sex industry Labour; Ontario Labour worker created health - facilitates improved compliance Relations Board; Ontario and safety guidelines; with existing labour legislation, Occupational Health and labour Acts, and policies Safety Act; Workplace Safety and Insurance Board - allows for collective bargaining and 4.) Support for sex grievance processes Ontario Ministry of worker unionizing and - improves ability to negotiate for Labour; the Ontario other forms of labour workplace improvements Labour Relations Board; organizing; - improves access to health benefits, and individual trade job security, increased wages, unions. harassment protection - increases flexibility in employment status 5.) The immediate - increases sex workers autonomy, City of Toronto (and cessation of forced flexibility, and control other individual licensing and - removes forced medical exams municipalities), registration for sex - increases sex worker anonymity specifically the Licensing workers. - allows work from home and with and Standards Division. other sex workers
(Vancouver: UBC Press, 2006) and Pivot Legal Society's sex work related publications (www.pivotlegal.org').
264 areas of sex work that were researched for this project. As such, there are no specific recommendations regarding youth involved in sex work, sex work and HIV/AIDS, transgender and transsexual sex workers, migrant sex workers, racialized sex workers, or international sex trafficking. As this dissertation studied the effects of prostitution policy on the workplace conditions of adult sex workers in Canada, with
supplementary research from three international case studies, the recommendations are focused accordingly.
Labour Legitimacy and Social Change
In her presentation to the Subcommittee on Solicitation Laws on October 28,
2003, Professor of Criminology at the University of Ottawa, Christine Bruckert, argued that in order to improve working conditions of sex workers, labour-based legitimacy was essential:
In terms of the labour conditions, the criminalization of the industry means that the women are outside the protection afforded other workers by federal laws, such as Employment Insurance and employment equity... If their rights as workers are denied or contravened, they are not in a position to lay claims before, say, the labour board. Nor are they able to organize into labour unions to negotiate better working conditions with their employers. (Bruckert 2003, n.p.)
As Bruckert asserts, the criminalization of prostitution-related activities through the
Criminal Code helps to facilitate the adverse conditions under which sex workers work and also prevents them from easily accessing basic labour supports and
265 protections. While decriminalization is a necessary step towards rectifying the harms faced by sex working communities and it would allow for forms of redress to be pursued, in order to attain full labour legitimacy and better working conditions for sex workers, other changes are also necessary. These changes include a willingness to follow progressive international policy examples, the implementation of health and safety guidelines, support for sex workers unions and associations, and the immediate cessation of discriminatory and problematic licensing schemes.
First and foremost, as argued in Chapters 1, 2 and 3, until sex work is conceptualized in labour-based terms and the moralistic discourse that constructs sex workers as victims lacking agency is abandoned, it will prove to be difficult to achieve lasting and socially just change. Further, as Chapters 4, 5, and 6 assert, all legal, policy, social, and economic changes regarding the sex industry should be contingent upon the support, participation, and consultation of sex workers. Indeed, changes to the sex industry will not be successfully implemented unless they are influenced and endorsed by sex working communities.
1.) Reconceptualization of Sex Work(ers)
Prior to and in conjunction with all major labour, political, and social changes regarding the sex industry, it is necessary to reconceptualize sex work as a form of sexual labour (Truong 1990; Queen 1997; Chapkis 1997; Brock 1998; Kempadoo and
Doezema 1998; van der Veen 2001; Kempadoo 2004a; Sanders 2005; Childs et al.
2006). By perceiving prostitution as a legitimate form of work (as in New Zealand), as
266 opposed to sexual exploitation (as in Sweden) or a morally questionable but tolerable activity (as in the Netherlands), reframes "the debate from moral positions to working conditions and workers rights" (Wijers 2004, n.p.). As Chapter 4 demonstrated, although different in their policy models, both the Swedish and Dutch legislative systems were initiated to better control their morally questionable sex industries
(Gould 2002; van Doorninck 2002; Svanstrom 2004; Outshoorn 2004). The Swedish government had to enact legislation to prohibit a previously non-criminalized activity
(purchasing sexual services) whereas the Netherlands government had to remove the prohibition against brothels in order to legalize the location as well as the activity of prostitution (repeal of the brothels ban). In both instances, the public view of sex work had a significant impact on the direction of the legislation. Where the Swedish view of prostitution was as a "social evil that should be eliminated," the Dutch perspective was that sex work was an "inevitable or even necessary evil that has to be accepted and controlled" (Wijers 2004, n.p.). In both instances, the discourse that surrounded sex work was one in which sex work and sex work-related activities were 'evil.' The state then focused on how to best manage, police, and control this 'social ill'.
In the Swedish radical feminist abolitionist perspective, sex work must be eradicated in its entirety whereas in the Dutch model, the complete annihilation of sex work is seen as an impossibility and therefore it should be controlled to the extent possible. As Marjan Wijers (2004) argues:
The first position is supported by arguments holding that prostitution is incompatible with human dignity or ... that prostitution as such constitutes a violation of women's human rights akin to slavery. The second position is
267 motivated with arguments referring to the interests of the state, such as the maintenance of public health and public order, or to 'natural' male needs. (Wijers 2004, n.p.)
In a context in which sex work is comparable to a form of gendered slavery it only
makes sense that the policy focus be on the elimination of the industry and that those who are doing the violating (the slavers/clients) be severely punished. Anything less than abolitionist policies would be seen as a violation of human rights. Similarly, in a
context in which prostitution, as long as it is not causing a public disturbance, is recognized as a regrettable but tolerable activity, legalization is a viable policy
direction. Through legalization the state can regulate the industry and put restrictions
on its most unfavourable aspects. The Swedish and Dutch case studies, therefore,
clearly demonstrate why a reconceptualization of sex work is important if sex workers
are to gain labour legitimacy. Further, these case studies show how ideology shapes policy (Ditmore 2005).
While it can be argued that the Netherlands provides an international example where sex workers were, in some cases, listened to and participated in the formation of policy, due to the stigma surrounding the industry and the underlying conception of
sex work as necessary but evil, the policy direction that was forged was not in sex workers' best interests (Self 2004; Wijers 2004). Further, research has shown that the municipalities that have been most successful in implementing the policy changes have been those that actively consulted sex workers in the process (Norway 2004; De
Rode Draad n.d. a; De Rode Draad n.d. b). Indeed, on a national level, the legislative framework is still one in which sex workers are discriminated against and fear public
268 reprisal.
As Chapter 2 contends, perhaps the most important conceptual shift that will bring about improvements is the recognition that sex workers have intimate insider knowledge of the sex industry that lends them greater authority to recommend lasting and beneficial legislative and social changes. The most important people in the policy equation, and the most frequently overlooked, are sex workers themselves. It is incumbent upon policy makers to actively listen to members of the sex trade when making policy decisions and recommendations. Prostitution and other sex work policies will not meet the health and safety needs of sex workers if sex workers have not been active members of the policy development process; collaboration is key. Sex workers' expert opinions and testimonies should be the primary sources of data considered in developing new policy and sex workers themselves should be members of review committees. As Mary Childs et al. (2006) argue, "sex workers have a unique insight and expertise regarding their industry, the role it plays in Canadian society, and the ways in which regulatory schemes will impact their business. Above all, law and policy makers should listen to sex workers in order to understand how the laws affect them..." (Childs et al. 2006, 9).
According to Wijers, a 'labour model' of sex work policy and legislative reform in one where sex workers' voices and experiences are included in policy debates: "Instead of excluding sex workers from the debate, as has been unquestioned for centuries, their participation is considered an essential condition for the development of any policy on sex work" (Wijers 2004, n.p.). In New Zealand, a prime
269 example of Wijers' labour model for sex work policy, not only were sex workers members of the policy process (NZPC n.d.; OSHS 2004) but a member of parliament was herself a former sex worker (Beyer 2000; Beyer 2003).
In addition to larger ideological and political changes in the public conceptualization of sex work, it will be important to have more grounded and tangible changes in the ways in which public services professionals interact with sex workers. Specific trainings and education workshops for medical and policing professionals who have regular contact with sex industry workers can effectively reduce the discrimination that sex workers face when accessing services and programs. If medical and police professionals acquire greater sensitivity towards the sex industry, it could de facto encourage more sex workers to report abuse or seek support when needed. If sex workers do not need to hide the nature of their work, they can be more open and honest about their activities and access appropriate supports in return. Police services in particular would greatly benefit from workshops and trainings on how to more effectively and sensitively engage with sex workers in need.
Indeed, "sensitivity training and support for police must be instituted. Given both the historical global devaluation of prostitutes and the documented abuse of prostitutes by police, decriminalization is insufficient to change the incredibly negative relationship between the police and prostitutes" (Kuo 2002, 156). In addition to police services, medical professionals should also undergo sensitivity training to increase sex workers comfort and access to medical care. As Elenor Kuo (2002) argues, "the negative reaction of many medical personnel toward prostitutes often makes them reluctant to
270 seek medical treatment or to reveal the sometimes relevant fact of their work when they do seek care" (Kuo 2002,157). Toronto's Medical Officer of Public Health and
Chief of Police along with the College of Physician and Surgeons and College of
Nurses should make trainings mandatory for all police and medical employees.
An effective way to begin the reconceptualization process in Canada would be through public education campaigns, designed by sex workers and allies, that are supported and funded by different levels of government. However, this might be unrealistic and idealistic in the current socio-political and economic context. In lieu of creating brand new campaigns, perhaps a more effective strategy would be to infuse a sex worker created and supported politic of sexual labour into already ongoing governmental and non-governmental outreach and education programs. For example, the Workplace Safety and Insurance Board can include information about workplace safety in sex industry establishments in their current campaigns. As Kuo argues, ".. .a public education campaign about prostitution and prostitutes, aimed at changing their conceptual constructions, must be instituted. Given how ingrained these representations are, it will take some time to overturn them" (Kuo 2002, 156).
Discrimination towards sex workers will begin to cease when there is a shift in the way we understand the industry. If sex work is an occupation, as it is in New
Zealand, its workforce will be legally able to challenge ostracization, social intolerance, and unsafe work environments. Indeed, full social and legal acceptance of the sex industry and sex workers is imperative if we are to see long lasting equitable changes. A social and political reconceptualization of sex work through labour and
271 human rights lenses, therefore, will prove to be fundamentally necessary and will allow for sex workers to legally and legitimately organize for improved rights and protections (Chapkis 1997; Kempadoo and Doezema 1998; Kempadoo 2004a; Sanders
2005).
2.) Complete Decriminalization
While in some instances sex industry regulations are created to protect sex workers from harm, as Chapter 6 reveals, we have also seen how these regulations can instead increase the harms faced by those they are supposed to safeguard. In Canada, where we criminalize the managers and operators of sex establishments, worksites and other locations used for providing services, drivers and others transporting sex workers to work, and communication between and among sex workers and clients, sex workers are forced to work in substandard conditions and in fear of violating both federal and municipal laws. Kara Gilles (2006) articulates:
These laws prevent us from negotiating safe work conditions and developing secure work sites, leading to violence, economic insecurity and poor work conditions. By continuing to criminalize our lives and work, Parliament sends the message that people working in the sex trade are deviant, disposable and undeserving of respect (Maggie's 2006, n.p.).
While one of the motivations for criminalization is that it decreases the number of individuals willing to enter into the trade, Deborah Brock (1998) counter argues:
"Criminalization cannot eliminate or necessarily decrease the sex trade, because women (and men) have to work, and will continue to find new ways to do so" (Brock
1998,139). Unfortunately, the reality is that the new ways and locations that sex
272 workers are forced to turn to for work are often more arduous and offer less protection from violence.
In addition to the increase in sex worker vulnerability and exposure to harm, the criminalization of sex work though the Criminal Code of Canada also contributes to a social context in which sex workers are discouraged from seeking support from many common social services. Sex workers often need to hide the nature of their work from public view or risk both arrest and social stigma. As Shari Allinott et al. (2004) argue, "criminal laws... bar sex workers from full access to Canada's social agencies, such as healthcare, affordable housing programs, income assistance, and police protection" (Allinott et al. 2004, 35). With decriminalization, and the complete removal of all prostitution-related offenses from the Criminal Code, sex workers might be more likely to disclose their work status and access support when and where needed.
Decriminalization, as has been argued by both the sex workers and allies interviewed for this dissertation and by the international sex workers' rights movement, is in the best interests of both sex workers and of the general public
(Shaver 1988; Pheterson 1989; Queen 1997; Nagle 1997; Chapkis 1997; Delacoste and Alexander 1998; Kempadoo and Doezema 1998; Allinott et al. 2004; Leigh 2004;
Davis and Shaffer 2004; Betteridge 2005; Lowman 2005; Childs et al. 2006). Sylvia
Davis and Martha Shaffer (2004) argue that for decriminalization to be effective, however, two things need to happen, "(1) all parties be in agreement as to its implementation, including prostitutes and (2) to ensure prostitute representation,
273 prostitutes' rights groups must be strengthened and increased" (Davis and Shaffer
2004, n.p.). Due to the current conceptualization of sex work and the social stigma surrounding the industry, it is unlikely that all parties (including the different levels of government, community members, community organizations, unions and labour associations, and sex workers) will be in support of its implementation at the present moment. Therefore, as previously argued, public education campaigns and other efforts to de-stigmatize sex work are important.
There are two common ways that decriminalization can become a reality in the
Canadian context. First, legislators and members of federal, provincial, and territorial governments can put forward a proposal for a Parliamentary debate on the laws surrounding sex work. If there is enough support for a change to the laws or for removal of one or more laws, Parliament can make this decision and have it enacted.
Second, if an individual is charged with one of the prostitution-related offences, he or she can argue that the law violates their protected rights under the Canadian Charter of
Rights and Freedoms. They can continue the 'Charter Challenge' appeals process up to the Supreme Court of Canada who will then make the final decision about whether or not the individual's claims are valid. If the Supreme Court rules that the laws violated the rights protected under the Charter, they can have the laws removed from the Criminal Code. The federal Department of Justice, as legal advisor to
112 The Canadian Charter of Rights and Freedoms is the highest law of the country and "takes precedence over other legislation because it is 'entrenched' in the Constitution" (DOJ-C 2008b, n.p.). All levels of courts and legislatures must conform to the Charter in their actions and proposals for legal reform (DOJ-C 2008b).
274 government, plays an important role in both the Parliamentary and Supreme Court processes (DOJ-C 2008a). Specifically, the Department of Justice is responsible for assisting in drafting new laws and modifying old ones in agreement with the Charter of Rights and Freedoms as well as assisting policymakers in the drafting of bills and regulations to ensure that they meet all legal requirements (DOJ-C 2008a; DOJ-C
2008b).
As Allinott et al. contend, "Striking down the prostitution laws is a critical step, but is not exhaustive of the actions required to remedy the disadvantage and marginalization experienced by sex workers in Canada" (Allinott 2004, 35).
Therefore, while decriminalization will be imperative for the reduction of exploitation in the sex industry, it is not the only step necessary. Provincial governments and municipalities also need to be taken into consideration for decriminalization to be effectively applied. John Lowman (2005), who has studied prostitution in Canada for over 30 years, similarly argues, "all three levels of government need to decide where and under what circumstances sex workers can meet their customers and conduct their business" (Lowman 2005, 10). Specifically, provincial Highways and Traffic Acts, various employment and labour laws, municipal bylaws including zoning and business regulations, and licensing schemes for dancers, escorts, and massage attendants should all be reviewed for their impact on sex working communities. As Childs et al. postulate, "Criminal law reform will be most effectively carried out if all levels of government... contemplate how areas of law that fall within their jurisdiction will play a role in creating a safe and legitimate sex industry" (Childs et al. 2006, 9). Therefore,
275 prior to or in conjunction with the removal of Criminal Code offenses, sex worker activists, allies, politicians, and policy makers should consider the consequences of decriminalization in a variety of ways.
Speculation into the Canadian context post-decriminalizing is hypothetical. It is difficult to discern what such a profound legal, social, political, and even economic transformation would look like. However, as this dissertation has argued, the New
Zealand case study presents an informative and successful framework that can be looked to in discussions of policy change in Canada. Indeed, New Zealand provides an important example of how decriminalization was effectively applied and where appropriate measures were taken to ensure sex workers' involvement in the process.
Due to the public conceptualization of sex work as a form of labour in New Zealand, sex workers were able to advocate for improved workplace protections, including industry-wide health and safety standards, occupational regulations, and policies governing workplace rights and responsibilities in the different levels of government
(PRA 2003; OSHS 2004; ERA 2000a). Both New Zealand's Prostitution Reform Act of 2003 and the more recent Prostitution Law Review Committee supported sex workers' rights during and after the decriminalization of their sex industry. Indeed, sex work and sex workers in New Zealand are not as stigmatized as they are in Canada, the radical feminist position that all sex workers are victims does not infiltrate and dominate the discussion, and the New Zealand population has been receptive to the social legitimating of the sex industry.
276 3.) Health and Safety Guidelines
The main body in Ontario that overseas workplaces and enforces provincial labour legislation is the Ontario Ministry of Labour (MoL). According to the MoL's website, its mission is to "advance safe, fair and harmonious workplace practices that are essential to the social and economic well-being of the people of Ontario" (GoO
2007, n.p.). The MoL's activities are focused in three primary areas: occupational health and safety; employment rights and responsibilities; and labour relations and internal administration (GoO 2007). The Ontario Ministry of Labour, therefore, will prove to be an important government body both during the decriminalization process and after in enforcing sex industry workplace standards.
In relation to workplace health and safety, it is the MoL's responsibility to oversee and enforce Ontario's Occupational Health and Safety Act. The primary purpose of the Act is to safeguard workers from job and workplace related health and
safety hazards (GoO 2009b). Created on October 1, 1979, the Act sets out the rules and responsibilities of workplaces regarding safety, standards, and provisions for conduct including handling hazardous substances, violence, and even washroom breaks. The Act further stipulates that it is both employers' and workers' responsibility to support and enforce the provisions of the Act (GoO 2002, 2). Employers and workers are to form workplace partnerships in an 'internal responsibility system' based on the understanding that "workplace parties themselves are in the best position to identify health and safety problems and to develop solutions" (GoO 2002, 2).
The 'partnership' model might work for many, perhaps even most, workplaces,
277 however, within stigmatized and precarious sex industry establishments where aspects of the employer-employee relationship are criminalized, this model might not be the most effective or successful. Indeed, when workplaces are concerned about federal bawdyhouse and procuring charges in addition to municipal zoning and licensing laws, the establishment of a 'health and safety representative' and 'joint health and
safety committees', as the Act instructs, might not be on the top of their priorities list.
And yet, many of the dissertation's interview respondents articulated a direct
correlation between workplace enjoyment and health and safety standards. As outlined
in Chapter 6, many of the respondents' suggestions for workplace improvements
included the implementation of basic standards of cleanliness, the right to refuse
unsafe work, and access to safety protections like gloves when using toxic cleaning
chemicals; all of which are mandated in the current Occupational Health and Safety
Act yet rarely enforced in sex industry workplaces. In a decriminalized context, with the cessation of fear of criminal charges, establishments where sexual services are
provided might be more likely to increase compliance with the Act. This greater
compliance with basic protections can, in turn, promote greater workplace satisfaction
for sex industry workers.
In addition to Ontario's Occupational Health and Safety Act and also under the
purview of the Ministry of Labour is the Workplace Safety and Insurance Board
(WSIB). The WSIB conducts trainings with employers and employees about health
and safety in the workplace (GoO 2002, 58). The WSIB could prove to be an
influential ally after decriminalization, as it not only funds occupational health and
278 safety research, which could be helpful for sex industry establishments, but also because it acts as an advisor to the Ministry of Labour and is in charge of public education campaigns to promote occupational heath and safety awareness (GoO 2002,
59). Indeed, in the first few years after decriminalization, and while sex industry establishments increase their compliance with the Occupational Health and Safety
Act's provisions requiring healthy and safe working conditions, at least one sex worker should be a member of the WSIB's multi-stakeholder Board of Directors. This will help to ensure sex work sensitivity during transition from quasi-legal and largely underground industry into mainstream society.
It would be advisable, prior to and during the decriminalization process, that one or more committees be struck to review both the Occupational Health and Safety
Act and the Workplace Safety and Insurance Board in order to assess their impact on sex industry establishments and to determine how and where provisions and activities could be modified or updated accordingly. It is recommend that Ontario's Ministry of
Labour ensure that sex workers are including in the review committees. Sex workers' insider knowledge could prove to be an invaluable contribution to the development of workplace protections that better suit sex industry establishments.
Again, the New Zealand case study provides a valuable example of the direction in which Canadian provincial health and safety policies might develop.
Indeed, the 2003 Prostitution Reform Act (PRA) set as its primary objective the decriminalization of the industry so as to safeguard human sex workers' rights and promote occupational health and safety (PRA 2003). The wording of the Act makes
279 clear that prostitution is work and prostitutes are workers. The underlying perceptions and assumptions in this context are clearly labour-based. Further, since decriminalization has come into effect, sex workers have participated in the creation of
Occupational Health and Safety Guidelines for the industry and can work in safe and secure environments (Clamen 2005b; OSHS 2004). As the New Zealand case study demonstrates, when sex workers are recognized as sexual labourers deserving of full labour rights and protections, government officials and committees are more likely to include them in decision-making and policy review processes. Sex worker stakeholder involvement can contribute to more informed decisions and more accountability within government.
In addition to reviewing existing workplace health and safety policies and governing bodies, it would be advisable to have surprise inspections of sex industry establishments to confirm that they are meeting the standards set out in Ontario's
Occupational Health and Safety Act. These inspections, however, should not be in excess of comparable inspections in non-sex industry workplaces except insofar as necessary or advisable by sex workers themselves. Inspectors should be aware of the nature of the business and have an understanding of the sale of sexual services.
Inspectors should further undergo sex work sensitivity training to make certain that their behavior and demeanor is not judgmental, anti-sex work, or moralistic in nature.
Last, and perhaps most importantly, municipal, provincial, and federal governments should begin a consultative process with sex workers to evaluate how they can remove the barriers that currently prevent some sex workers from accessing
280 labour-related services and supports. The federal and provincial Ministries of Labour, the Ontario Labour Relations Board, the Ontario Employment Standards Act, Ontario
Worker's Compensation Act, the Workplace Safety and Insurance Board, Ontario
Occupational Health and Safety Act, and City of Toronto department of Social
Services and Licensing and Standards Divisions can all play an important role in supporting sex workers' workplace rights and protections.
4.) Unionization and Other Forms of Labour Organizing
In addition to the protections outlined in Ontario's Health and Safety Act and in addition to the activities of the Workplace Safety and Insurance Board, sex workers could see dramatic workplace improvements from the establishment of industry or sector-wide unions, professional associations, and other forms of labour organizing.
Indeed, trade union organizing, association building, and general labour organizing could prove to be key in establishing and maintaining appropriate health and safety standards that are defined and endorsed by sex workers themselves. However, in
Canada, it has historically been the case that the most marginalized of workers (for example, transient employees, immigrants, and women) are the ones least likely to be unionized (Heron 1996, xi). This certainly holds true in relation to the sex industry.
Law argues, "One of the most effective ways for commercial sex workers to promote decent working conditions and protect themselves from violence, abuse, and health and safety hazards, is to work in a collective context... Unionization is possible
281 only in a context in which people work as employees" (Law 2000, 598). Unionized workplaces will have job classifications in their collective agreements so that any worker doing a particular job would be automatically considered an employee and eligible for the rights and benefits as outlined in the agreement. The collective power of multi-stakeholder unions can assist sex workers in their struggle for labour legitimacy and more specifically, in the struggle for employee recognition. The
Ministry of Labour and the Ontario Labour Relations Board can assist in the sex worker unionization process by helping groups of sex workers become more knowledgeable about the rules and requirements of unionization. Similarly, trade unions, when requested by sex workers, can facilitate union drives in individual workplaces.
Sex work unionization is not a new phenomenon. Canada's first dancers union, the Canadian Association of Burlesque Entertainers (CABE), was founded in Toronto in 1979 (Sorfleet 2005,19). During the three years of its existence, the Canadian
Labour Congress officially recognized CABE as Local 1689 (Sorfleet 2005, 19).
According to Valerie Scott, CABE's treasurer, the union had its own dues structure and dental plan.113 In addition to dancers, Childs et al.'s research has demonstrated that street-based sex workers are highly in favour of unionization; there was unanimous support for a sex worker union among street-based research participants working in Vancouver's Downtown East Side (Childs et al. 2006, 23). Some indoor sex workers in Childs et al.'s study, however, expressed reservations about
113 Dissertation Interview, March 14, 2008.
282 unionization for fear of loss of independence and possible reduced wages (Childs et al.
2006, 23-34). Like other workers in Canada, sex workers should be afforded the right to join or form a union at their workplace if they so choose. Conversely, workers who wish to remain non-unionized should be allowed to do so.
Internationally, sex workers unions have been forming since the mid-1990s.
For example, in 1996 Australian prostitutes working in legal brothels in New South
Wales and Victoria formed the first sex workers' union under the Australian Liquor,
Hospitality and Miscellaneous Workers' Union (Kempadoo 1998a, 22; Sorfleet 2005,
19). In 1997, dancers at San Francisco's Lusty Lady peep show voted to unionize with the Service Employees International Union (SEIU) Local 790 (Kempadoo 1998a, 22;
Siegal 2008, 38). In the Netherlands, in 2001, De Rode Draad affiliated with the country's trade union confederation (Sorfleet 2005, 19). Sex workers became the newest branch of Great Britain's third largest union, GMB, in 2002; the International
Union of Sex Workers (IUSM) is now recognized by Britain's Trades Union Congress
(IUSW n.d.). Originally formed in 1995 in Buenos Aries, the Association for Women
Prostitutes of Argentina (Asociacion de Mujeres Meretrices de la Argentina,
AMMAR) is now part of the country's largest trade union, the Central de Trabaj adores
Argentinos (CTA) (Dalen 2003, 33).
A primary barrier to sex worker unionization is the commonplace activity of employers classifying sex workers as 'independent contractors' rather than
'employees' (Law 2000; Kuo 2002; Childs et al. 2006). Sylvia A. Law (2000) contends, "Many commercial sex workers are inappropriately classified... erotic
283 dancers are often classified as 'independent contractors' even though the establishment managers exercise the forms of control that typically characterizes the employment relationship" (Law 2000, 591). This is similarly the case for many escorts and erotic massage practitioners (Childs et al. 2006, 81). Independent contractors are not eligible for Employment Insurance, the Canada Pension Plan, and Worker's
Compensation, nor can they join workplace group health insurance plans (Sorfleet
2005, 5). While sex workers can be at a disadvantage due to their classification as independent workers, agency owners, operators, and employers benefit from not having 'employees' insofar as they can distance themselves from claims of procuring.
Employers are able to argue that they have no influence over the sex worker as it is
"up to the independent contractor to decide whether their work crosses the line from massage or 'escorting' into sale of sexual services" (Childs et al. 2006, 81). Further, when sex workers are classified as independent contractors, employers are not required to abide by the provisions outlined in the Occupations Health and Safety Act and they are not required to pay certain taxes (Kuo 2002; Childs et al. 2006).
It is not always the case, however, that all sex workers would benefit unanimously from employee status. Margot Rutman's (1999) research has demonstrated that "exotic dancers are often better off economically as independent contractors than as employees, even though the employee status triggers other legal protections" (Rutman 1999, 531). Depending on the local licensing scheme and the clubs internal rules and regulations, as independent workers dancers can sometimes maintain greater job flexibility, can garner higher earnings, and do not receive tax
284 deductions on their wages. In instances where sex workers prefer to remain independent, they should be entitled to join a professional association and work collectively with others in their sector for improved standards and conditions.
Professional associations of current and former sex workers can facilitate the creation of industry and sector-wide standards by and for sex workers. Professional associations can provide legitimation for sex workers and can further assure that minimum training requirements have been met. Further, associations can create requirements and certification that might make it easier for sex workers to be able to work in any province of their choosing (Sorfleet 2005, 18). Associations could benefit sex workers who want to work independently but who also see the potential advantage of collectivized guidelines and industry standards.
Interestingly, however, while an employer might define the worker as an independent contractor, depending on the nature of the employment relationship the law might dictate otherwise. Indeed, workers at a variety of sex industry establishment might unknowingly be entitled to all of the benefits and protections of an employer/employee relationship as defined by provincial law, including the ability to unionize, regardless how their employer classifies them (Childs et al. 2006, 81).
Similar to sex worker unionization, however, the decision whether or not to establish an association and what sort of regulatory activities the association would be responsible for, should rest in sex workers' hands.
285 5.) Cessation of Licensing and Registration
The collective lobbying power of sex worker professional associations and unions might be able to influence municipal governments to modify or discontinue their licensing schemes to better meet sex workers' diverse needs. However, until groups of sex workers have established lobbying groups, licenses should not be made mandatory. While there are some benefits to municipal licensing schemes (for example, running water, proper washrooms, adequate ventilation, standards of cleanliness, and mandatory showers for clients prior to massages), sex workers and sex work researchers have argued that licenses are often not in sex workers best interests (Lewis and Matika-Tyndale 2000; STAR 2006; van der Meulen and Durisin
2008). The City of Toronto bylaw requiring a medical examination of massage attendants is a significant example (CTMC n.d. a). Massage attendants not only have to produce a certificate of medical fitness, but the bylaw specifies that where there is reasonable grounds to suspect that a massage attendant might endanger the health and safety of another person, the attendant may have to undergo an additional medical exam (Bruckert et al. 2003, 14). This particular bylaw, among others, supports Frances
Shaver's (1995) assertion that health and safety policies regarding prostitution are premised upon the assumption that sex workers are a threat to others (Shaver 1995,
42).
Sex worker's rights activists have denounced medical examinations as unacceptable and only serving to perpetuate the belief that sex workers transmit infection (ICPR 1998, 313). This is a particularly contradictory situation since safer
286 sex supplies are not freely available in massage parlours. Toronto's bylaws contain provisions that seem to be at odds with one another; massage attendants require certificates of medical fitness, yet cannot openly access safer sex supplies nor talk about sexual services. Indeed, sexual services are neither explicitly permitted nor condoned at massage parlours, however, the bylaws that some municipalities have attempted to enact to prohibit nudity and physical contact between massage workers and customers suggest that they are at least somewhat aware that sexual services are being provided (Childs et al. 2006, 227). The City of Toronto, like all municipalities, is technically not allowed to regulate the sale of sexual services because prostitution is a federal matter. What has developed is a situation where cities license indoor forms of sex work, yet municipal employees have to act as if there are no sexual services being provided. As a consequence, gloves, condoms and other safer sex supplies are not available (Bruckert et al. 2003; STAR 2004).
Further, many provisions within the City of Toronto bylaws that regulate massage attendants decrease sex workers' autonomy and control over their working conditions. For example, massage workers are subject to a paternalistic set of regulations that prevent them from working at more than one parlour at a time (CTMC n.d. b). Also, massage workers must notify the Licensing Division immediately if employment at a parlour ends or if they change home addresses (CTMC n.d. c).
Massage bylaws further specify that attendant licenses containing the names and addresses of workers must be posted in a conspicuous place at the parlour, which, of course, compromises their anonymity (CTMC n.d. d).
287 Since massage attendants in the City of Toronto need to be licensed to work legally (Municipal Code, s. 545-333, Chapter 545), their working conditions and employer/employee relationships should be governed by the Ontario Labour Relations
Board and the Ontario Labour Relations Act and they should be able to form workplace unions. Additionally, massage attendants should be able to bring forward workplace violations in the courts and receive equal, and receive non-stigmatized, treatment just as any other worker (Gillies 2005, 73). However, over the last five years there has been only one filed complaint application from a massage attendant working in a licensed body rub parlour in Toronto according to the Ontario Ministry of Labour and the Ontario Labour Relations Boards and there have been no claims or applications under the Occupational Health and Safety Act for workplace safety violations.
Unlike in the City of Toronto where sex workers are subject to both medical exams and police record checks, sex workers in New Zealand no longer have to register with the police and can therefore maintain anonymity. What's more, the
Prostitution Reform Act empowers small groups of sex workers to work from their own homes rather than for a boss or manager (PRA 2003). Additionally, an Operators
Certificate is only required for an individual or group who "owns, operates, controls, or manages the business" but there is a built in exception to this rule for small owner- operated brothels (PRA 2003). It is possible for up to four sex workers to work together without an Operators Certificate provided that "each of those sex workers retains control over his or her individual earnings" (PRA 2003, n.p.). The City of
288 Toronto, as previously argued, should follow the New Zealand example and actively involve sex workers from different sectors of the industry in the creation of new municipal guidelines for regulating the industry.
Licensing restrictions on sex workers should only be equal to similar workers, for example, holistic health practitioners, estheticians, or some medical personnel.
Further, the municipal regulation of sex-related businesses should not extend beyond regulations for other businesses and zoning by-laws should not be prohibitive or discriminatory due to the sexual nature of the work. Sex work establishments should
"be subject to the same laws regarding employee rights as any other businesses, including standards for maximum length of shifts, freedom of movement, and so forth" (Kuo 2002, 163). With municipalities and provinces imposing sex industry specific laws, sex workers could be faced with a system more disciplinary and penalizing than the one they are already accustomed to subverting and avoiding.
Unions, labour boards, and workers' associations are necessary vehicles that sex workers can use to fight for increased rights and against excessive governmental regulation.
Some of the sex workers and allies interviewed for this dissertation articulated a fear that decriminalization could facilitate much greater regulatory municipal powers. Once prostitution and sexual services are no longer criminalized through the federal Criminal Code, it will be possible for municipalities to increase the number and scope of related bylaws to attempt to control and prohibit aspects of the sex trade.
Prior to complete decriminalization, sex workers and allies should work with members
289 of municipal government to "ensure that any other legislation relating to the sex trade does not create a quasi-criminal or punitive regime through the use of fines or penalties" (Alinott et al. 2003, 35).
Conclusion
In an ideal scenario the actualization of the five recommendations would occur relatively simultaneously or in relative conjunction with one another. Indeed, each recommendation will be best realized if implemented concurrently. For example, sex worker unionization and association building will be much more successful in a decriminalized context otherwise much of the common workplace activities, which would be protected in the collective agreement, would be illegal. Similarly, sex work needs to be reconceptualized in labour-based terms prior to and in conjunction with changes to Ontario's Occupational Health and Safety Act or else it is possible, even likely, that the changes will be imbued with problematic and patronizing protections that sex workers have articulated to be not in their best interest. However, the simultaneous realization of these recommendations is unlikely to happen. As such, a process of 'relentless incrementalism' might prove to be more effective (Battle 2001).
According to Ken Battle (2001), policy and social change that happens at a relentlessly incremental pace is a successful strategy when "big-bang reforms" fail. He defines relentless incrementalism as a process "consisting] of strings of reforms, seemingly small and discrete when made, that accumulate to become more than the
290 sum of their parts. Relentless incrementalism is purposeful and patterned, not haphazard and unintended" (Battle 2001, 39). In other words, focusing on realistic, consistent, and small-scale changes that culminate in much larger aims and objectives could prove to be effective in initiating lasting and beneficial social and policy change.
Through small and perhaps more feasible goals, the discourse on sex work can be altered and amended to one in which sex workers' rights are tantamount. From there it could be easier for sex workers to encourage specific agencies and organizations to include sex work positive materials into their already ongoing education campaigns, for example. Further, while decriminalization could happen relatively overnight though a pronouncement of the Supreme Court of Canada, it could also happen though a series of smaller social and policy changes that lead to a ground-swell of public support for sex workers' labour rights.
As this dissertation has argued, the labour and social vulnerability that sex workers face can be assuaged through the implementation and establishment of adequate health and safety guidelines, the reduction of social stigma attached to sex work, and a commitment that municipalities will not impose excessive rules and regulations on sex industry workers and establishments. Indeed, through the decriminalization of the industry and a change in conceiving sex work as work, labour-based legitimacy for sex workers can be attainable. In addition to legislative and labour based changes, the social stigma and negative stereotyping of sex work and sex workers needs to be challenged on a much larger and broader societal level. This challenging can happen though public education campaigns, through the inclusion of
291 sex workers in review committees and policy formation, though unionization and association building, and though the creation of labour protections guidelines created with and by sex working communities. The social marginalization and ostracization of sex work and sex workers will only change if there is a shift in the way we conceptualize the industry and we remove the criminal sanctions, licensing schemes, and regulations that further penalize them.
292 Appendix A: Informed Consent
INFORMED CONSENT FORM
Sex, Work, and Policy: How Laws Affect Sex Work Labour Organizing, A Toronto Case Study
Researcher/Principal Investigator: Emily van der Meulen, PhD student in Women's Studies, York University, 4700 Keele Street, Toronto, Canada. 416 531 9022. [email protected].
It's important that you know how and why I'm doing this research. I want you to feel safe and comfortable while you are taking part in it. Before signing this form please read below and make sure that you understand everything. I'm here to answer your questions so please ask me!
Why am I doing this research? The point of this research is to look at how Canada's sex work-related laws affect labour organizers' and sex work advocates' ability to organize for labour rights. The interviews are going to focus on three main areas: first, how sex worker activists and community organizers engage with policy development, specifically the Subcommittee on Solicitation Laws Review (SSLR); second, the successes and challenges that sex worker labour organizers and allies face in building bridges with unions and professional associations; third, sex worker labour organizers and allies' industry-wide labour organizing campaigns.
What you need to know before starting: The interview will be about two hours. If you agree, I might get in touch with you to ask for a follow up interview later. It's very important that you understand the following:
• Your participation in this study is entirely voluntary and you can choose to not answer any question that makes you uncomfortable. You can also ask to stop the interview at any time to ask a question or for any reason without any sort of penalty. • If you want to withdraw from the study there will be no repercussion to you, to your relationship with me, or to your relationship with York University. You will still receive your $50 honorarium and TTC tokens or taxi voucher. • If you withdraw from the study all of your interview materials will be destroyed. • Interviews will be tape-recorded with your permission and will be transcribed into typewritten form.
293 • Your participation in this research is anonymous; your name and/or anything that could identify you will not be recorded or made public unless you tell me that you would like to have your name made public. • I can only keep confidentiality to the extent allowed by law. • The interview material will help me write my dissertation as well as possible journal articles, information pamphlets, facts sheets, posters, or handouts. • The research materials like as audiotapes and transcripts will only be identified by a code number. They will be held in a secure location and will not be publicly accessible. The audiotapes will be kept for up to two years and then they will be destroyed. • This research has been reviewed and approved by the York University Human Participant Review Committee (HPRC) for compliance with Senate Ethics policy. • If you have any concerns about the way this research is conducted you can contact:
—The supervisor of this research, Dr. Kamala Kempadoo, York University, 4700 Keele St, S717 Ross Building. 416 736 2100 ext.77402. [email protected] —The School of Women's Studies, York University, 4700 Keele St, 206 Founders College. 416 650 8144. —The Manager, Office of Research Ethics, Alison M. Collins-Mrakas, York University, 4700 Keele St, 309 York Lanes. 416 736 5914. [email protected]
What are the risks and benefits? This research should pose no more than minimal risk to you. The interview will give you the opportunity to reflect on your labour organizing activities for increased health and safety standards for sex industry workers as well as your possible participation in the recent Subcommittee on Solicitation Laws Review. It will also allow you to consider the successes and challenges that you have encountered through your role as sex worker advocate and organizer in relation to labour rights. Below you will find contact information for support and advocacy organizations that may be of interest to you. Please don't hesitate to contact any of the organizations after this interview if you need any sort of assistance.
In order to compensate you for the time that you have volunteered in this study you will be provided with light refreshments, two TTC tokens or a taxi voucher, and a $50 honorarium. This $50 honorarium is given to you strictly for the amount of time that you are participating in the research project, not for the quality or quantity of your responses.
Consent: Your signature below shows that you have received a copy of this consent form, that you understand what this research is about, and that you are agreeing to participate in this study.
294 Participant Signature Date **Also sign here if you consent to waiving your anonymity
Principal Investigator Signature Date Printed Name of Principal Investigator
Resources This list includes contact information for: a Toronto sex worker organization that provides education and support to assist sex workers in their efforts to live and work with safety and dignity; a worker-based organization committed to improving the lives and working conditions of people in unstable employment; and a community-based legal clinic that provides free legal advice.
Maggie's: The Toronto Prostitutes' Community Service Project Address: 298 Gerrard St. East, 2nd Floor Toronto, Ontario Telephone: 416 964-0150
Email: [email protected] Webpage: http://www.maggiestoronto.ca
The Workers' Action Centre Address: 720 Spadina Avenue Suite 223 Toronto ON M5S 2T9 Telephone: 416 531-0778 Email: [email protected] Webpage: http://www.workersactioncentre.org Parkdale Community Legal Services Address: 1266 Queen Street West, Toronto, Ontario, M6K 1L3 Telephone: 416-531-2411 Email: [email protected] Webpage: http://www.parkdalelegal.org
295 Appendix B: Demographic Questionnaire
Questionnaire: Please check all that apply and only what you are comfortable answering...
1) Name (real or made up): 2) Age:
3) Gender identity: 4) Racial identity:
5) Are you a sex worker? CURRENT FORMER ALLY
6) How old were you when you first started working in the sex industry?
7) How many years have you been, or were you, a sex worker?
8) What sex industry jobs have you had? What kinds of work have you done?
9) Have you ever been a part of a labour organizing, unionizing, workplace rights, or association building campaign?
In the sex industry: YES NO
In a non-sex industry workplace: YES NO
10) Have you heard of the Subcommittee on Solicitation Laws Review? YES NO
11) Did you present for the Subcommittee? YES NO
296 If yes, where did you present?
Formal hearings in Ottawa _____ Public cross-country hearings
Closed in-camera cross-country sex worker hearings
12) What year did you first get involved with Maggie's?
13) How long have you been, or were you, involved with Maggie's?
14) In what capacities have you been, or were you, involved with Maggie's?
BOARD STAFF VOLUNTEER
OTHER
15) Is it ok for me to include the above information when I write about my interview with you?
YES NO
SOME (If some, please let me know which parts to include and which parts not to)
297 Appendix C: Interview Guide
Topic Area 1: The Impact of the Criminal Code on Work Conditions These questions look at the impact of federal laws on sex workers' workplace rights and safety.
Bawdy House Questions (Sections 210 and 211):
1) Under the bawdy-house laws, if your landlord suspects that you are using your apartment or house to see clients he legally has to report you. How does this affect your work?
2) It is also illegal to be an inmate of a bawdyhouse or 'found in' a bawdy house. How does this affect your work?
3) It's also illegal for someone to knowingly drive you to a bawdy-house. So for example, it's illegal for a taxi driver, friend or partner to drive you to your in call work apartment or hotel room if they know that you are using it for work. In what ways does this affect your working conditions?
4) Also under these laws its illegal to direct someone to a bawdy-house. For example, a hotel concierge can be charged to telling someone at the hotel where the closest brothel or in call location is. How does this affect your work?
5) If you could, how would you change the bawdy-house laws?
Procuring Questions (Section 212):
1) Under the procuring section it is illegal for someone to try and convince or entice you into selling a sexual service - this could be a friend suggesting a double or a boss or manager directing you out on a call. How does this affect your working conditions?
2) It is also illegal to 'live on the avails' of a prostitute. This means that it is against the law for someone to be supported by a sex worker's earnings if it is a 'parasitic' relationship. For example, if you pay for the household expenses and your friend or partner pays less or lives for free that is illegal. Can you think of ways that this could affect your work?
3) Are there other ways that the procuring laws affect your work?
4) If you could, how would you change the procuring laws?
298 Communication Questions (Section 213):
1) With the communication laws it is illegal to stop a car or a pedestrian in a public place and offer to sell or buy sex. A public place can be anywhere outside but it can also mean a bar, a hotel, a restaurant, and even a car. How does this affect your work?
2) What are the benefits of being able to negotiate services and prices before agreeing to a date?
3) How else do the communication laws affect your work?
4) If you could, how would you change the communication laws?
Topic Area 2: Moving Forward for Better Work Conditions These questions focus on how to improve the working conditions and standards in sex workers' work places.
YES to QUESTION 9 - Workplace organizing:
1) In the questionnaire, you answered that you have been a part of a workplace rights campaign. Tell me a bit about that. Which unions, associations, or labour sectors did you organize with?
- If in the sex industry specifically: How receptive was the union/association to sex workers' rights? - If in the sex industry specifically: Were there other unions/associations that didn't want to organize with sex workers?
FOR EVERYONE - Ideal Conditions:
1) When you think about how to improve workplace conditions and establish workplace rights, do you think that this needs to happen differently for each workplace (ie. each club should have their own policies), for each sector (ie. there should be one escorts association regardless which agency you work at), or should it be for the whole industry (ie. a giant union that protects all sex workers regardless as to what job you do or where you work)? Or a combination of these three?
299 - If workplace specific, which workplaces and which strategies do you think would be most successful? - If sector specific, which sectors and which strategies do you think would be most successful? - If industry-wide, why? What would this look like? - If combo, why? What would this look like?
2) In other workplaces there are protections like complaints processes, health and safety policies, sick leaves etc. What kinds of workplace protections would you have liked in the sex industry jobs that you've had?
3) If you could create your ideal work situation what would it look like? - What would need to happen for this goal to come true?
Topic Area 3: Engagements in Canadian Policy Development The questions in this section are about sex worker activists' engagement with the Subcommittee on Solicitation Laws.
NO to QUESTIONS 10 and 11 - Policy Engagement:
1) Have you ever tried to change or get involved with a sex work policy campaign? This could be a governmental review of the laws, some sort of political lobbying effort, creating policy recommendations etc. - If so, tell me a bit about that. What were some of the challenges or barriers to your involvement? - If not, are there specific reasons why you haven't tried to engage with policy makers or politicians? Are there barriers that prevent you from engaging in policy change?
YES to QUESTION 10 - GENERAL Subcommittee Questions:
1) In the questionnaire you answered that you've heard of the Subcommittee on Solicitation Laws. What did you think about it? General thoughts or comments about it? - How do you think sex workers perspectives were represented? - IF NO TO QUESTION 11 Were there specific reasons why you didn't try to get involved or present at the Subcommittee hearings? Were there barriers that prevented you from engaging?
300 YES to QUESTION 11 - People who PRESENTED at Subcommittee:
1) In the questionnaire you said that you presented at the Subcommittee hearings. - Tell me a bit about your experience presenting. - What were the main messages/points were you trying to get across?
2) Do you think the Subcommittee considered the perspectives of all of the presenters equally? For example, do you think that some voices were heard more than other voices? - If so, which presenters and which voices? - If so, do you think they were listening differently depending on which of the hearings you were presenting at (ie. formal Ottawa vs. public cross country vs. closed sex worker)?
Subcommittee REPORT: 1) Have you seen the Subcommittee's final report? - What are your feelings about it? - How do you think sex workers perspectives were represented in the report?
FINAL QUESTION: 1) Is there anything else that you would like to add or wish I had asked you?
301 Appendix D: 1999 Swedish Penal Code Retrieved from http://www.Sweden, gov.se/sb/d/3926/a/27777
Chapter 6, Section 8
A person who promotes or improperly financially exploits the casual sexual relations for payment of another person shall be sentenced for procuring to imprisonment for at most four years. A person who, holding the right to the use of premises, grants the right to use them to another in the knowledge that the premises are wholly or to a substantial extent used for casual sexual relations for payment and omits to do what can reasonably be expected to terminate the granted right, he or she shall, if the activity continues or is resumed at the premises, be considered to have promoted the activity and shall be sentenced in accordance with the first, paragraph.
302 Appendix E: Revised 2005 Swedish Penal Code
Retrieved from http://www.sweden.gov.Se/sb/d/3926/a/47455
Chapter 6
Section 1 A person who by assault or otherwise by violence or by threat of a criminal act forces another person to have sexual intercourse or to undertake or endure another sexual act that, having regard to the nature of the violation and the circumstances in general, is comparable to sexual intercourse, shall be sentenced for rape to imprisonment for at least two and at most six years. This shall also apply if a person engages with another person in sexual intercourse or in a sexual act which under the first paragraph is comparable to sexual intercourse by improperly exploiting that the person, due to unconsciousness, sleep, intoxication or other drug influence, illness, physical injury or mental disturbance, or otherwise in view of the circumstances in general, is in a helpless state.
If, in view of the circumstances associated with the crime, a crime provided for in the first or second paragraph is considered less aggravated, a sentence to imprisonment for at most four years shall be imposed for rape.
If a crime provided for in the first or second paragraph is considered gross, a sentence to imprisonment for at least four and at most ten years shall be imposed for gross rape. In assessing whether the crime is gross, special consideration shall be given to whether the violence or threat was of a particularly serious nature or whether more than one person assaulted the victim or in any other way took part in the assault or whether the perpetrator having regard to the method used or otherwise exhibited particular ruthlessness or brutality.
Section 2 A person who, otherwise than as provided in Section 1 first paragraph, induces another person by unlawful coercion to undertake or endure a sexual act, shall be sentenced for sexual coercion to imprisonment for at most two years.
This shall also apply to a person who carries out a sexual act other than provided for in Section 1 second paragraph with a person, under the conditions otherwise specified in that paragraph.
If a crime provided for in the first or second paragraph is considered gross, a sentence to imprisonment for at least six months and at most six years shall be imposed for gross sexual coercion. In assessing whether the crime is gross, special consideration shall be given to whether more than one person assaulted the victim or in any other
303 way took part in the assault or whether the perpetrator otherwise exhibited particular ruthlessness or brutality.
Section 3 A person who induces another person to undertake or endure a sexual act by serious abuse of that person's position of dependency on the perpetrator shall be sentenced for sexual exploitation of a person in a position of dependency to imprisonment for at most two years.
If the offence is gross, a sentence to imprisonment for at least six months and at most four years shall be imposed for gross sexual exploitation of a person in a position of dependency. In assessing whether the crime is gross, special consideration shall be given to whether more than one person assaulted the victim or in any other way took part in the assault or whether the perpetrator otherwise exhibited particular ruthlessness.
Section 4 A person who has sexual intercourse with a child under fifteen years of age or who with such a child carries out another sexual act that, having regard to the nature of the violation and the circumstances in general, is comparable to sexual intercourse, shall be sentenced for rape of a child to imprisonment for at least two and at most six years.
This also applies to a person who commits an act provided for in the first paragraph against a child who has attained the age of fifteen but not eighteen and who is the perpetrator's offspring, or is being brought up by or has a comparable relationship with the perpetrator, or for whose care or supervision the perpetrator is responsible by decision of a public authority.
If a crime provided for in the first or second paragraph is considered gross, a sentence to imprisonment for at least four and at most ten years shall be imposed for gross rape of a child. In assessing whether the crime is gross, special consideration shall be given to whether the perpetrator used violence or threat of a criminal act or whether more than one person assaulted the child or in any other way took part in the assault or whether the perpetrator having regard to the method used or the child's young age or otherwise exhibited particular ruthlessness or brutality.
Section 5 If, in view of the circumstances associated with the crime, a crime provided for in Section 4 first or second paragraph is considered less serious, a sentence to imprisonment for at most four years shall be imposed for sexual exploitation of a child.
304 Section 6 A person who carries out a sexual act other than provided for in Sections 4 and 5 with a child under fifteen years of age, or with a child who has attained the age of fifteen but not eighteen and for whom the perpetrator is responsible as provided for in Section 4 second paragraph, shall be sentenced for sexual abuse of a child to imprisonment for at most two years
If the offence is gross, a sentence to imprisonment for at least six months and at most six years shall be imposed for gross sexual abuse of a child. In assessing whether the crime is gross, special consideration shall be given to whether more than one person assaulted the victim or in any other way took part in the assault or whether the perpetrator having regard to the method used or the child's young age or otherwise exhibited particular ruthlessness or brutality.
Section 7 A person who, otherwise than as previously provided in this Chapter, has sexual intercourse with his or her own child or its offspring, shall be sentenced for sexual intercourse with an offspring to imprisonment for at most two years.
A person who, otherwise than as previously provided in this Chapter, has sexual intercourse with a full blood sibling shall be sentenced for sexual intercourse with a sibling to imprisonment for at most one year.
The provisions of this Section do not apply to a person who has been made to commit the act by unlawful coercion or other improper means.
Section 8 A person who promotes or exploits performance or participation in sexual posing by a child under fifteen years of age shall be sentenced for exploitation of a child for sexual posing to a fine or imprisonment for at most two years.
This also applies to a person who commits such an act against a child who has attained the age of fifteen but not eighteen if the posing is by its nature likely to damage the child's health or development.
If the offence is gross, a sentence to imprisonment for at least six months and at most six years shall be imposed for gross exploitation of a child for sexual posing. In assessing whether the crime is gross, special consideration shall be given to whether the crime has concerned a large-scale activity, brought significant financial gain or involved ruthless exploitation of the child.
Section 9 A person who, otherwise than as previously provided in this Chapter, induces a child
305 under eighteen years of age to undertake or endure a sexual act in return for payment, shall be sentenced for purchase of a sexual act from a child to a fine or imprisonment for at most two years
The provision of the first paragraph also apply if the payment was promised or given by another person.
Section 10 A person who, otherwise than as previously provided in this Chapter, sexually touches a child under fifteen years of age or induces the child to undertake or participate in an act with sexual implications, shall be sentenced for sexual molestation to a fine or imprisonment for at most two years.
This also applies to a person who exposes himself or herself to another person in a manner that is likely to cause discomfort, or who otherwise by word or deed molests a person in a way that is likely to violate that person's sexual integrity.
Section 11 A person who, otherwise than as previously provided in this Chapter, obtains a casual sexual relation in return for payment, shall be sentenced for purchase of sexual service to a fine or imprisonment for at most six months.
The provision of the first paragraph also apply if the payment was promised or given by another person.
Section 12 A person who promotes or improperly financially exploits a person's engagement in casual sexual relations in return for payment shall be sentenced for procuring to imprisonment for at most four years.
If a person who, holding the right to the use of premises, has granted the right to use them to another, subsequently learns that the premises are wholly or to a substantial extent used for casual sexual relations in return for payment and omits to do what can reasonably be requested to terminate the granted right, he or she shall, if the activity continues or is resumed at the premises, be considered to have promoted the activity and shall be held criminally responsible in accordance with the first paragraph.
If a crime provided for in the first or second paragraph is considered gross, imprisonment for at least two and at most eight years shall be imposed for gross procuring. In assessing whether the crime is gross, special consideration shall be given to whether the crime has concerned a large-scale activity, brought significant financial gain or involved ruthless exploitation of another person.
306 Section 13 Criminal responsibility as provided for in this Chapter for an act committed against someone under a given age shall also be required of a perpetrator who did not realise, but had reasonable grounds for assuming, that the other person had not attained that age.
Section 14 A person who has committed an act under Section 5 or Section 6 first paragraph against a child under fifteen years of age or under Section 8 first paragraph or Section 10 first paragraph shall not be held criminally responsible if it is obvious that the act did not involve any abuse of the child in view of the slight difference in age and development between the person who committed the act and the child and the circumstances in general.
Section 15 An attempt to commit rape, gross rape, sexual coercion, gross sexual coercion, sexual exploitation of a person in a position of dependency, gross sexual exploitation of a person in a position of dependency, rape of a child, gross rape of a child, sexual exploitation of a child, sexual abuse of a child, gross sexual abuse of a child, exploitation of a child for sexual posing, gross exploitation of a child for sexual posing, purchase of a sexual act from a child, purchase of sexual service, procuring and gross procuring shall be dealt with in accordance with the provisions of Chapter 23.
This also applies to preparation for and conspiracy to commit rape, gross rape, rape of a child, gross rape of a child, gross exploitation of a child for sexual posing and gross procuring together with failure to reveal such a crime.
307 Appendix F: Beyer Speech to Parliament Retrieved from: http://www.georginabeyer.com/parliament/speech 250603.htm
Georgina Beyer's June 25th, 2003 Speech to Parliament on the Prostitution Reform Bill (Third Reading)
GEORGINA BEYER (Labour-Wairarapa): I rise to make my contribution to the third reading of this bill, which I support. I would like to begin by expressing my gratitude to the members of this Parliament for a considered and varied debate from both sides and both points of view. Along with that, I congratulate supporters of both sides of the argument for their contribution, which expresses a fair view from both sides of the nation. I particularly congratulate and pay great credit to Tim Barnett, who has had the courage and commitment to see this bill through to this most important point.
I support the bill, because, as everybody knows, I have had experience in the sex industry—and I am the only member of this Parliament to have had it. If I had had a law like this to protect me and give me some teeth for redress when I was 16 and 17 years old—even on entering into the sex industry—then I might have been spared the 5 or so years I spent in that industry. Barriers would have been created against people who would coerce those under 18 to enter the sex industry in the first place. I support this bill for all the prostitutes I have ever known who have died before the age of 20 because of the inhumanity and hypocrisy of a society that would not ever give them the chance to redeem whatever circumstances made them arrive in that industry.
This bill provides some of that protection. It provides people like me at that time with some form of redress for the brutalisation that might happen when a client pulls a knife. The horror of that situation is that it could be a life and death one—one does not know—but it would have been nice to know that instead of having to deal out justice afterwards to that person myself, I might have been able to approach the authorities— the police in this case—and say: "I was raped, and, yes, I'm a prostitute, and, no, it was not right that I should have been raped, because I said no, and it was not paid attention to."
I think of all the people I have known in that area who have suffered because of the hypocrisy of our society, which, on the one hand, can accept prostitution, while, on the other hand, wants to push it under the carpet and keep it in the twilight world that it exists in. We are bringing prostitution reform into the light with some of what is proposed in this bill, and the criminal element does not necessarily like to be standing in the glare of greater public influence over how an industry like this might be conducted within our society. It is about accepting that that occurs, and it is about accepting the fact that the people who work in this industry deserve some human rights. I plead with those members in this House who are wavering right up to the wire, to think, for heaven's sake, of the people of whom I have just spoken, including
308 myself, who might be spared some of the hideous nature of the way society treats prostitutes—because that is here with us.
But if one does have fears, this legislation will be reviewed in 5 years to see how it is operating and whether it is effective. If this bill passes tonight, in 5 years we will be able to reassess its worth. That is something that those who are wavering should be comforted by. But to do nothing now would be irresponsible of this Parliament, because the status quo would remain, and that is unacceptable. This is our one chance in perhaps 20 years to do something. Whatever side of the argument we take, I know we all come from a humanitarian point of view, but I beg members to consider the side I am on, and the side many others in this House are on also. It is the side I consider to be right. It does not diminish, in my opinion, the opinions of those who are against this bill, because some valid points have been made, but not to address this issue now, with this possibility, is not right.
I will conclude by saying that right now we have a sex industry, and we have legislation based on an outmoded double standard. Let us change, please, the part we can.
309 Appendix G: NZPC Summary of Laws
Reprinted from: http://www.nzpc.org.nz/page.php?page_name=Law
"The main points about the Prostitution Reform Act are: * You have the right to refuse to have sex with a client for any reason, or for no reason. No one- including managers, receptionists, minders, clients, other workers, etc., can force you to have sex with a client, even if he has paid. Managers cannot fine you for refusing a client- it is against the law for them to do so.
* You cannot be coerced ("induced or compelled") into having sex by having money taken off you, etc., (i.e., fined, etc.), or threatened in any way. Section 16 of the Prostitution Reform Act states any person who does so "commits an offence and is liable on conviction on indictment to imprisonment for a term not exceeding 14 years".
* You do not have to register with the police, or even contact the police, if you wish to be a sex worker in New Zealand. Under the old laws, Massage parlours were required to keep a register of names, with identifying details, which were to be given to the police for inspection "upon request". In some areas, people working privately had to register with the police before they could advertise in their local newspaper. This is no longer the case.
* Operators, clients and sex workers must take all reasonable steps to "ensure a prophylactic sheath (condom) or other appropriate barrier is used if those services involve vaginal, anal, or oral penetration or another activity with a similar or greater risk of acquiring or transmitting sexually transmissible infections". Failure to do so can mean a hefty fine. This means that everyone should use a condom and/or dental dam for vaginal, oral and anal sex.
* A brothel is a place that is habitually used by just one sex worker or more for commercial sex activities with clients. All brothels must display health promotion messages. There are some posters that have been published by the Ministry of Health that spell out the requirements for safer sex practices. These are available from NZPC and are free.
* Operators are required to have "Operators Certificates". An operator is any person who has any form of control over a sex worker. This includes owners, directors of companies, managers, and may include receptionists. Check section 5 of the Prostitution Reform Act if you are unsure if this affects you, or ring NZPC. There is a form you send to the Registrar at the Auckland District Court. The forms are available from the Ministry of Justice website. The cost of applying is currently $205.00 including GST. There are some people who may not be able to get an Operators
310 Certificate if they have previous convictions for violence, sexual offences, or certain drug related offences. However, people can appeal against this on several grounds. It is worth checking this out if you have been refused an Operators Certificate.
* Sex workers can work with any convictions.
* Up to four sex workers can work together and do not need an Operators Certificate, so long as no one is in charge of anyone else, or working as a boss. If there are more than four sex workers working together, as equals, one will have to apply for an Operators Certificate.
* Councils have the right to make bylaws affecting the signage and location of brothels, but cannot ban brothels outright. Some councils have zoned brothels to certain areas. Some councils also have home based-occupation rules affecting anyone who works from home. It is important to be aware of any bylaw that may affect you if you are thinking about establishing a brothel or working from home or apartments in certain areas.
* A sex worker is "at work" for the purposes of OSH when they are providing sexual services. There are Occupational Safety and Health guidelines have been developed by OSH in consultation with NZPC, sex workers and brothel operators. These guidelines are available from the OSH website.
* If you are a sex worker who wishes to leave sex work, you can go onto a benefit without any extra stand down being imposed for voluntary unemployment.
* You can be a sex worker in New Zealand provided you are a New Zealand citizen.
* If you are thinking of coming to New Zealand to work as a sex worker; or to own, open, or invest in, a brothel or other business of prostitution, your visa can be refused. If you hold a temporary visa, or if your permanent residency carries a special condition, you can be deported if you own a brothel or other business of prostitution, or if you are working in the sex industry.
* If you are a brothel operator, or a client, you can be fined or imprisoned if you hire a sex worker who is under 18. It is also illegal to receive money from a sex worker under the age of 18. It is not illegal to be a sex worker if you are younger than 18. However, if you hire a sex worker under 18 to work in your brothel, or if you are a client who hires a sex worker under 18 to provide you with sexual services, you are breaking the law.
* Many newspapers require photo ID before allowing adverts for sex workers in the adult entertainment columns. This is to ensure that they do not "cause, assist, facilitate,
311 or encourage a person under 18 years of age to provide commercial sexual services to any person", which also carries a prison sentence.
* Some brothel operators have already been found guilty of hiring people under the age of 18 to work as sex workers. In one case, it appears the brothel operator did not check ID to ensure the person was over 18, but as the law allows no defence to the charge, they were found guilty. Therefore, in order to protect yourself from being prosecuted, NZPC recommends that all brothel operators view photo ID of people they are hiring to ensure they are over 18."
312 Appendix H: Section 210 Criminal Code
Bawdy-houses
Keeping common bawdy-house
210. (1) Every one who keeps a common bawdy-house is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
Landlord, inmate, etc.
(2) Every one who
(a) is an inmate of a common bawdy-house,
(b) is found, without lawful excuse, in a common bawdy-house, or (c) as owner, landlord, lessor, tenant, occupier, agent or otherwise having charge or control of any place, knowingly permits the place or any part thereof to be let or used for the purposes of a common bawdy-house, is guilty of an offence punishable on summary conviction.
Notice of conviction to be served on owner (3) Where a person is convicted of an offence under subsection (1), the court shall cause a notice of the conviction to be served on the owner, landlord or lessor of the place in respect of which the person is convicted or his agent, and the notice shall contain a statement to the effect that it is being served pursuant to this section.
Duty of landlord on notice (4) Where a person on whom a notice is served under subsection (3) fails forthwith to exercise any right he may have to determine the tenancy or right of occupation of the person so convicted, and thereafter any person is convicted of an offence under subsection (1) in respect of the same premises, the person on whom the notice was served shall be deemed to have committed an offence under subsection (1) unless he proves that he has taken all reasonable steps to prevent the recurrence of the offence.
R.S., c. C-34, s. 193.
313 Appendix I: Section 211 Criminal Code
Transporting person to bawdy-house
211. Every one who knowingly takes, transports, directs, or offers to take, transport or direct, any other person to a common bawdy-house is guilty of an offence punishable on summary conviction.
R.S., c. C-34, s. 194.
314 Appendix H: Section 210 Criminal Code
Offence in relation to prostitution
213.(1) Every person who in a public place or in any place open to public view
(a) stops or attempts to stop any motor vehicle,
(b) impedes the free flow of pedestrian or vehicular traffic or ingress to or egress from premises adjacent to that place, or
(c) stops or attempts to stop any person or in any manner communicates or attempts to communicate with any person for the purpose of engaging in prostitution or of obtaining the sexual services of a prostitute is guilty of an offence punishable on summary conviction.
Definition of "public place" (2) In this section, "public place" includes any place to which the public have access as of right or by invitation, express or implied, and any motor vehicle located in a public place or in any place open to public view.
R.S., 1985, c. C-46, s. 213; R.S., 1985, c. 51 (1st Supp.), s. 1.
315 Appendix H: Section 210 Criminal Code
Procuring
212. (1) Every one who
(a) procures, attempts to procure or solicits a person to have illicit sexual intercourse with another person, whether in or out of Canada,
(b) inveigles or entices a person who is not a prostitute to a common bawdy-house for the purpose of illicit sexual intercourse or prostitution,
(c) knowingly conceals a person in a common bawdy-house,
(d) procures or attempts to procure a person to become, whether in or out of Canada, a prostitute,
(e) procures or attempts to procure a person to leave the usual place of abode of that person in Canada, if that place is not a common bawdy-house, with intent that the person may become an inmate or frequenter of a common bawdy-house, whether in or out of Canada,
(f) on the arrival of a person in Canada, directs or causes that person to be directed or takes or causes that person to be taken, to a common bawdy-house,
(g) procures a person to enter or leave Canada, for the purpose of prostitution,
(h) for the purposes of gain, exercises control, direction or influence over the movements of a person in such manner as to show that he is aiding, abetting or compelling that person to engage in or carry on prostitution with any person or generally,
(i) applies or administers to a person or causes that person to take any drug, intoxicating liquor, matter or thing with intent to stupefy or overpower that person in order thereby to enable any person to have illicit sexual intercourse with that person, or
(j) lives wholly or in part on the avails of prostitution of another person, is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
316 Living on the avails of prostitution of person under eighteen (2) Despite paragraph (l)(j), every person who lives wholly or in part on the avails of prostitution of another person who is under the age of eighteen years is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years and to a minimum punishment of imprisonment for a term of two years.
Aggravated offence in relation to living on the avails ofprostitution of a person under the age of eighteen years (2.1) Notwithstanding paragraph (1)0) and subsection (2), every person who lives wholly or in part on the avails of prostitution of another person under the age of eighteen years, and who
(a) for the purposes of profit, aids, abets, counsels or compels the person under that age to engage in or carry on prostitution with any person or generally, and
(b) uses, threatens to use or attempts to use violence, intimidation or coercion in relation to the person under that age,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years but not less than five years.
Presumption (3) Evidence that a person lives with or is habitually in the company of a prostitute or lives in a common bawdy-house is, in the absence of evidence to the contrary, proof that the person lives on the avails of prostitution, for the purposes of paragraph (1)0) and subsections (2) and (2.1).
Offence — prostitution of person under eighteen (4) Every person who, in any place, obtains for consideration, or communicates with anyone for the purpose of obtaining for consideration, the sexual services of a person who is under the age of eighteen years is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years and to a minimum punishment of imprisonment for a term of six months.
(5) [Repealed, 1999, c. 5, s. 8]
R.S., 1985, c. C-46, s. 212; R.S., 1985, c. 19 (3rd Supp.), s. 9; 1997, c. 16, s. 2; 1999, c. 5, s. 8; 2005, c. 32, s. 10.1.
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