How should we regulate sex work in Canada?

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Vancouver-East MP Libby Davies told CTV news: ”We need to distinguish between what is consenting between two adults and what is exploitative, coercive and violent and focus the law-enforcement on those aspects.” She’s right and I don't support criminalizing consensual sexual behaviour, but it's sometimes hard to define exploitation. While there are people who choose to be sex workers (check out Jeffrey and MacDonald’s research with Maritimes sex workers), there are also those who are trafficked into prostitution or forced into it by economic circumstances, sometimes compounded by drug addiction, mental health issues, and racial and gender inequality. Poverty can be a form of coercion, and while that’s no reason for maintaining the harmful patchwork of anti-prostitution laws that we’ve had, it makes me less willing to see this legal fix as more than just one piece of the puzzle.

So where do we go from here? It looks like the court decision is going to finally result in some policy-making at the federal level. Unfortunately, with the Conservatives in power it looks like the government will be fighting this ruling tooth and nail in the name of prostitutes’ “safety”, essentially arguing that some form of criminalization is the best approach, while all the evidence shows that it doesn’t act as a deterrent and only serves to put prostitutes at unnecessary risk. Historian George Ryley Scott concludes his research on prostitution around the world by stating that “the most that can be expected from punitive and repressive measures…is the driving of prostitution into underground channels” (1996, p. 181).

So we’re left with decriminalization or legalizing and regulating aspects of prostitution, as in the Netherlands or Nevada. Legalization sounds progressive on the surface – totally legitimating the profession – but it can actually give more power to pimps and reports show it doesn’t stop the street trade or curb violence against sex workers. Melissa Farley’s research found that most women in legal brothels in Nevada had pimps, and that rights are severely restricted, with women often forced to live in the brothels and work 12- to 14-hour shifts. In the Netherlands, the average age of death of prostitutes is 34.

More widely endorsed is decriminalization, which is supported by the CMA, the WHO, and UNAIDS when exploitation is not involved. It’s believed that decriminalization will reduce stigma and enable sex workers to organize for security and labour rights. However, as we’ve seen in the response to this debate, some women’s groups believe decriminalization gives tacit approval to the trafficking and exploitation of sex workers.

A slight variation on full decriminalization is the Swedish solution to make it criminal to buy but not to sell sex, an approach championed by Benjamin Perrin in the Globe and Mail and organizations like Vancouver Rape Relief. It’s a somewhat conservative approach that assumes all sex workers are victimized, but it’s probably more politically palatable than total decriminalization and statistics out of Sweden seem promising. That said, I wonder whether it would serve to continue to drive prostitution into less safe areas.

Whether or not you agree with Justice Himel’s decision, it has at least forced us into having this needed national discussion. After all, underlying issues of poverty, racism, and sexism will continue to make any substantial material changes difficult even if the decision results in national legal reform. Those larger changes will require broad-based policy initiatives responsive to the needs and views of sex workers. While moves to decriminalize prostitution should be part of these initiatives, we also need to recognize the needs for services and programs to help those women wishing to leave the sex trade. Finally, dealing with the harms associated with prostitution will involve a concurrent movement towards gender and racial equality, in order to address some of the conditions which push women into prostitution and victimize them in this work.

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