Restoring Sanity to the Debate over Sex Work

What would sensible policy regarding sex work look like? Let’s begin with what should be something of a truism in a liberal democracy. Policy in this domain should not be moralistic. By that I mean that it should not be grounded in the judgment made by some that there is something inherently wrong with selling and purchasing sexual services. The state acts in an unacceptably paternalistic manner when it claims that, whatever the conditions in which the sale of such services occurs, it is condemnable and should therefore be prohibited by law. If two consenting adults wish to contract in order to exchange sex for money, they should be allowed to do so.

If that is the case, then a decent society needs to ask itself two kinds of questions. First, how can it ensure, or make it as likely as possible, that when a sex worker and a consumer of sexual services engage in such an exchange, they do so consensually? Second, how can it ensure that harms that might be created by the practice of sex work are prevented or mitigated?

The first of these questions takes us down deep philosophical waters. What are the conditions for “real”, rather than sham consent? Oceans of ink have flowed attempting to answer this question. This is not the place to put an end to these debates. But two things seem tolerably clear in the present context. First, sex workers do not consent when they are coerced to provide sexual services under threat of violence. Nor can they consent when they are not of an age at which we deem consent to be possible. That’s why whatever regime is chosen to regulate the “sex trade”, sex trafficking and the sexual exploitation of children need to be forcefully targeted by state laws, international agreements, and by law enforcement officials.

But a just society can probably do a bit better than simply ruling out egregious cases such as these. Poverty and lack of options often push people to do things for money that are contrary to their values, including selling sexual services. A society that truly wants to limit the sale and purchase of sexual services to cases where consent is present had better do as much as it can to combat poverty, and to provide its citizens with acceptable ranges of options. A choice is not really a choice when it is exacted at the end of the barrel of a gun or at the point of a knife. But it is also only partly a choice when it occurs against unjust background social conditions.

Any government that moralistically condemns sex work as inherently wrong, and which commits itself to investing resources to “save” women from the sex trade, but that does not do its utmost to eradicate the socio-economic conditions that leads certain women to sell sexual services out of necessity, opens itself to the charge of blatant hypocrisy.

Once a society has done as much as it can through policy to ensure to ensure that consent is present in all commercial exchanges for sexual services, it also needs to ensure that sex workers can practice their trade in safe conditions. There is very likely a greater chance of harm befalling a sex worker at the hands of a “john” then there is in the case of the provision of other kinds of services. So steps have to be taken to protect sex workers against foreseeable dangers.

The Supreme Court of Canada, in the Bedford decision, made it very plain that the criminal law in Canada failed quite miserably in this respect. By prohibiting anyone from “living from the avails” of prostitution, it effectively prevented sex workers from hiring bodyguards or drivers. By making it illegal to communicate for the purposes of the sale or purchase of sexual services, it make it much more difficult than might otherwise be the case for sex workers to screen customers. And by making it a crime for anyone to find themselves in a “common bawdy house”, it makes it impossible for sex workers to work indoors, and thus relegates them to the streets, where they are almost by definition susceptible to greater dangers.

The Court struck down these three provisions, and gave the government a year to either decide to do nothing, and allow the impugned provisions to lapse, or to replace them with compliant legislation. The Harper government has responded with Bill C-36, the “Protection of Communities and Exploited Persons Act”.

The Bill is in some ways inspired by the so-called “Nordic model”, which aims at choking off the demand for sexual services by targeting not the suppliers of such services, but those who seek these services out. Under C-36, it would now be a criminal offense to purchase sexual services.

But the proposed legislation goes beyond the targeting of johns and pimps by making it illegal for third parties to advertise the sale of sexual services in newspapers, on the Internet, and elsewhere. It also threatens to fine sex workers who ply their trade in places where there is a “reasonable” chance that children might be present. And it creates a $20 million dollar fund to help those who presently practice in the sex trade to exit it.

Does the proposed legislation answer the concerns voiced by the Justices, in their unanimous 9-0 decision in the Bedford case? Quite clearly, it does not. First, by prohibiting sex workers from advertising in various media, it pushes them out into the street in order to do so. Remember that one of the principal concerns of the Justices had been that sex workers not have to ply their trade in the streets. Unless I am missing something, it is hard to see how this restriction will not lead many sex workers into the street in order to advertise their services.

Second, by making it an offense, punishable by fines, for sex workers to practice in places where children might be able to see them, the legislation provides law enforcement officials with a very vaguely worded tool with which to harass sex workers in the streets. The safety of sex workers requires that they be able to view the police as allies rather than as enemies. If they are assaulted, they need to feel that they can turn to law enforcement officials, without having to worry about the fact that they might find themselves exposed to fines. Potentially violent johns may feel more inhibited to visit violence upon sex workers if they believe that police are not being sent a mixed message by lawmakers as to what their attitude should be toward sex workers.

Third, the criminalization of the purchase of sex means that those who continue to want to purchase sexual services will require that the sex trade be driven underground, again to the detriment of the safety of sex workers.

It is therefore unlikely that the legislation would pass constitutional scrutiny. The same kinds of concerns that led the Justices to throw out the previous Criminal code provisions would inevitably lead them to do the same in the case of Bill C-36. The Official Opposition has challenged the Justice Minister to refer the Bill to the Supreme Court in order to avoid the lengthy and costly road of legal challenges. Unsurprisingly, he has refused to do so.

So this is clearly not the end of the road for the sex work file in Canada. At some point or other, this legislation will be revealed to be as incompatible with the section 7 rights of sex workers as the previous legislation was. And we will have to think more seriously than the present government has done to think about ways in which to regulate the sex industry in ways that satisfy the various desiderata enumerated above.

One issue that will have to be scrutinized very closely is the claim that by making it a crime to purchase sexual services, demand for such services will be greatly diminished.

The evidence on this issue is still the object of controversy. The governments of Nordic countries that have gone down this road claim to have greatly reduced the incidence of sex work in their societies. Opponents claim that sex workers have merely been driven underground, into greater invisibility, and thus, into greater peril.

There are however questions that I have not seen addressed in the empirical literature, that should be at the center of debate when we are again able to debate these questions in a sane way. Let’s grant for the sake of argument that the criminalization of the purchase of sexual services does in fact reduce demand. No one is claiming that it is eradicating that demand altogether, nor that the sex trade is for all intents and purposes being eliminated in the countries that have gone the Nordic road. The risk is that, though overall numbers decrease, the conditions that are being imposed upon the sex workers that are still practicing their trade in this kind of a repressive regime are at greater risk than they had been previously. The questions we need to be asking in surveying the empirical landscape of the countries that have adopted legislation similar to that being proposed by the Harper government are not, simply: is the legislation bringing numbers down? But rather: are sex workers under this regime at greater risk than they were before, and also: is the legislation effective in removing from the market those sex workers who are the most vulnerable, leaving only those who freely consent to practice the trade?

I don’t know the answers to those questions. But when we get to a point where we are capable of discussing these matters sanely, that is, in a non-moralizing context, and by a government that is not more intent on consolidating its electoral base and on thumbing its nose at a Supreme Court with which it has clearly grown exasperated than on truly protecting the vulnerable, these are the kinds of questions we will have to ask.



Restoring Sanity to the Debate over Sex Work — 11 Comments

  1. good piece D. But I question your opening premise- that liberal democracies shouldn’t allow moral judgment to dictate policy- That strikes me as a fairly naïve proposition; morality plays an overwhelming role in all manner of area s of criminal law, and it is clearly driving the Cons response to the SUpreme Court ruling here. And then the debate simply devolves into a battle between those who are acting to do what is “right” vs those who would say we need to take a pragmatic approach on such issues ( be it prostitution, drug enforcement policy, obscenity laws – which the zeitgeist has rendered obsolete), etc. What Mackay has done here is outrageous and cynical, but it is arguable that from a policy perspective one can justify a position that prostitution is immoral, a societal blight, etc., in which case what option is there but to continue to try to eliminate it through criminalization

  2. LD and JS: but the term “morals” is ambiguous as between actions that involve harm to others, which is deemed immoral, or open to moral scrutiny, on those grounds, and self-regarding actions, or actions between consenting adults. The criminal law of course takes multiple stands on the latter, but I think it is in the nature of a liberal democracy to at least tend toward expunging from the criminal law the category of victimless “crimes”.

  3. LD and JS: there is no doubt that morals have an appropriate role in the criminal law, to the extent that morals have to do with the harms that people are wont to do to one another. I think that it is in the spirit of liberal democracy however to at least tend toward the expunging from the criminal law of prohibitions on self-regarding actions, and on that to which consenting adults agree.

  4. Thanks for this very helpful piece. I’m struck by how much “sanity” has pervaded the public discourse on Bill C-36 in recent days, including in this discussion. Even when the “anti” folks have found a voice in the media, the comments section is filled with humanity, rationality, and respect for the needs of sex workers to secure decent working conditions. Quite peculiar, to be comforted by the comments section in the National Post! I’m increasingly convinced that the public discussions which have occurred inside and outside of Canadian courtrooms in recent years have altered our views on what sex work means and doesn’t mean, and all to the good. The only point I would add to DW’s perspective here is to say that, for some sex workers, not only is the work not harmful to others, but can be beneficial and desirable to themselves. I agree entirely with the need to improve social conditions for those who are in the sex trade because of a lack of options. But I think we are all too accustomed to seeing how sex work happens amidst criminalization and stigma, and not realizing the range of ways that it might occur. It’s important to know that for some folks it is not an option of last resort, but a set of experiences that can involve intimacy, experimentation, extraordinary learning, and lasting relationships. It can be a meaningful dyad. I would refer you to Vanessa D’Alessio’s essay in the Toronto Star for that perspective (an experienced escort and volunteer with Maggie’s: Toronto Sex Workers’ Action Project). Thanks again for this piece.

  5. Excellent piece summarizing this important issue and the unfortunate response of the current government. I’ll add my voice to Lisa Kerr’s comments. I cannot speak for sex workers as I am not one, but my encounter with those who do choose freely this path leads me to repeat what Monica Forrester once said at a conference: “we do not want to be saved” (referring to the current approach of social and public health workers). Any regulation of the sex worker profession should take into account their needs; which means that they should be the first one to be consulted. Consent is important, but in my humble opinion, regulations ensuring sex workers’ protection should not act as barriers to those who actually consent and benefit from their work.

  6. I don’t agree at all with the suggestion that a sane discussion on the topic requires the removal of any moralistic perspectives. Every side of the argument has a belief regarding what it considers right and wrong. While some may view prostitution as “bad”, others may, through a completely different paradigm, view it as “good”. In other words, you are suggesting that a set of views that you disagree with should be eliminated from the debate in order for it to be “sane”. However, not only is that disrespectful of others who simply don’t share your point of view, it takes the debate out of the realm of the practical and into the realm of the hypothetical and waste of time. Ultimately, politicians in a liberal democracy have to respond to their constituents. They have to be able to account for their actions by explaining things in terms of “right” and “good” versus “wrong” and “bad”. To suggest that politicians should address this enormously controversial topic by approaching it in an “amoral” fashion, as Mr. Weinstock suggests would be the only way to “restore sanity” in the debate, would in fact probably promote the opposite.

  7. Hi DH,

    Thanks for the comments.

    My suggestion is certainly not for anyone’s views to be eliminated. My point is that our constitutional structure protects everyone, including sex workers, from having their section 7 rights to security and life negated because of moralism of any kind. The Harper government responded to the Court’s requirement that they respect these rights through legislation by making the situation of sex workers even worse: preventing them from advertising in any way shape or form, and also requiring that they not do business in any place where children might be present, means that they will be pushed out into remote locations where they will be more vulnerable than they are even under the former, pre-Bedford legislation.


  8. The exchanges here are interesting, but to me they suggest that there likely is no “non-moral” approach to this question (or any other question). After all, when we endorse “security and life” as a trump principle, is that really amoral? I suppose that it could be if we really subordinated those interests to every other concern, but does anyone seriously maintain that position? For instance, as I recall there were some other postings that took a sympathetic view of physician-assisted suicide. So aren’t we inclined to approach both issues in terms of a certain view of human dignity or human autonomy, and those principles have different implications for our understanding of the primacy of security and life depending on the issue?

    I suppose that one can also use the “self-regarding actions” card as a trump card, though. Of course, the cliche question about “self-regarding actions” is whether they truly exist. In the context of the prostitution debate, it would be interesting to look at this question in light of the interesting recent theories of “erotic capital”.

    But at least in the case of physician-assisted suicide, the “human dignity” argument carries much more weight with me (i.e., if the issue were really one of people wanting to take their lives just to show their own autonomy, it would seem, at best, creepy to me; but if the issue is one of human dignity, then I think that qualified case for assisted suicide becomes very compelling).

  9. On reflection I have to retract my last comment a bit: I’m not sure if “dignity” helps to clarify the issues so much after all. I think I was writing too much based on on gut reactions. Maybe we need an “amoral” standard after all!