Tuesday, June 17, 2014

Bill C-36 and Prostitution in Canada: Moral Criminalization of Sex Workers

The Canadian government established The Royal Commission on the Relations of Labour and Capital in 1889 to face the growing criticism on security in the labour force. Too many workers were being hurt, too many oppressive working conditions were still in place, but the federal government refused to act, saying it would overstep into provincial jurisdiction.

In 1914, Ontario is the first province to institute the Workmen's Compensation Act for workers injured on the job. In 1972, Saskatchewan follows with a first of its kind Occupational Health Act, which makes both health and safety the joint responsibility of management and workers. The Canadian Charter of Rights and Freedoms was enacted in 1982, but following mass protests around the country over the next decades, the Supreme Court, in 2007, overturned more than twenty years of Charter of workplace jurisprudence by allowing for unionized healthcare and social services for workers.

Then, in December of 2013, the Supreme Court unanimously struck down Canada's major prostitution laws, stating unequivocally that Parliament's restrictive measures had infringed on the constitutional rights and security of prostitutes. Ruling on the Bedford Case, the Court gave the Minister of Justice Peter MacKay one year to revise the laws in favour of more protective measures.

In early June 2014, MacKay did just that, unveiling a prostitution bill based on the Nordic model, calling it a Canadian version that criminalized the purchase of sex and scoffed in the face of what the Supreme Court had requested.

The Nordic model has been condemned worldwide, and the Canadian version appears far worse. The Bill intensely persecutes clients, criminalizing the use of sex services with five years in prison, while also targeting anyone who receives material benefits from prostitution. It bans the advertisement of prostitution, even in the online marketplace, and places restrictions on where and how prostitutes can practise their trade. Undeniably, it paints prostitutes as the immoral decay in society and their clients as sexually unhinged.

Bill C-36, perhaps ironically entitled The Protection of Communities and Exploited Persons Act, believes paid sex is a form of violence against women, heavily steeped in inequalities between the sexes and the moral preservation of the purity of female sexuality. Under this bill, sex for money is inherently undignified and impure, and women who choose this line of work are social degenerates to be castigated in the public eye - but most are undoubtedly victims, and the proprietary and paternalistic nature that C-36 holds towards women emboldens it to 'save' women from their bad choices.

The Bill is lax on defining terms, which are intrinsic to law, security and criminalization. 'Public space', 'avails', 'where children are expected to be present' - all these terms would be up for varying definition by the courts. Does not benefiting from avails mean that prostitutes could not hire drivers, body guards, screeners to improve their security? If public space is widely defined, will prostitutes be forced to work indoors but not tell anyone for fear of losing clients? Does public space include the internet? Defining terms is the basic structure of any law, and MacKay fails miserably in this, aiming to leave definitions open in the hopes of stricter legal interpretation.

As is, Bill C-36 would be struck down by the Supreme Court as it does nothing to improve the safety of sex workers. In their 2013 decision, the Court stated: "It is not a crime in Canada to sell sex for money," and nor is it a crime to buy it. MacKay changed that with the tabling of Bill C-36, defying new Canadian polls that suggest "more canadians favour decriminalization than cracking down on prostitutes and clients."

Criminalizing the use of sex services would only increase the security risks for sex workers, male, female and trans. Clients who fear severe repercussion in the form of hefty fines and five years of jail time would demand heightened anonymity, refusing to give their name or phone numbers, refusing screening or public exchanges. The more shadowy the transaction and with fewer people involved (re: security or drivers) the less security there is for the sex worker. The Bill also allows all the same search and seize measures for police, doing nothing to curtail police brutality nor educate and train forces on protection and the very measures of equality the Bill pretends to uphold. The preamble speaks of 'human dignity' and 'equality', encouraging the reporting of incidents and compelling prostitutes to leave sex work, but nowhere is there mention of support lines or groups, secure and affordable housing, alternative income sources, or, and why not, a bill to fight poverty instead of prostitution. Instead the Bill imposes dangerous working conditions on sex workers, defying the Supreme Court ruling in a desperate attempt to morally quell a trade that has been defying law (and prideful patriarchy) since the dawn of time.

That women could possibly use their sexuality for trade is daunting to the stronghold of patriarchy. Intrinsically, it removes men from the biological imperative: they are no longer providers, having been completely left out of the equation. That a woman's sexuality has always been under a man's control is nothing new - indeed I've often written how a culture's purity and a family's pride and moral standing is written on the woman's body - so it only reasons that when women step outside of this traditional sexual role, they would be labeled as immoral for doing so. Traditionally, prostitutes are either whores or victims, immoral sluts or victims of circumstance. For the Harper conservative government to have chosen the latter is, again, no surprise, such parental views of women follow a long line of women never being considered as full persons endowed with the same inalienable rights and abilities as men: we are less than, we are other, and constantly need male guidance with our choices, lest we choose wrong. Decriminalizing prostitution, however, need not fall under such traditionally patriarchal terms. New Zealand has done it, where prostitution operates under employment and public health laws, treating women as full human beings, able to make their own choices with their bodies.

Sex, historically from church to marriage, was either for procreation or pleasure - certainly not for capitalism. But, undeniably, it has always been so - in times of richness and poverty, women have used their bodies for gainful means. Indeed, prostitution epitomizes the use of capitalist forces to trade a service within a high market demand. Dangers lie also in the way we speak of women, and of prostitutes: are they victims? Are they poor innocent girls, forced into a trade unbeknownst to them? And why is sex for money more importantly valued than other jobs? We all must make a living, and while some are CEOs, others collect trash, wash toilets, clean sewer tanks or work night shifts and day shifts and back to back shifts for less than the minimum wage. Yet the uproar against these jobs is minimal: we are not concerned with bettering our economy and providing better resources to these workers, we are not looking to save them, nor are we victimizing their condition, yet it could be argued that capitalism is structured in a way that forces underemployment and overworking, pushing down whole segments of the population into slave-like conditions, for the benefit of the very few. If women are choosing to work in the sex industry and make more than working at Starbucks, pay their taxes and are fine with it, what government could not admit that this is exactly how capitalism is supposed to work?

Peter MacKay has called prostitutes 'degrading' and their clients 'perverts' - stating that "no one chooses this, it is inherently degrading and inherently violent." For one man and one party's moral agenda to so taint such a wide-reaching law is unconscionable, and may even turn the law into a form of gender-based violence, as it imposes conditions harmful to a large group based primarily on gender.* Luckily the Supreme Court will send it back for revision, and hopefully with a slap on the proverbial wrist.

Canadian women, and all sex workers, deserve better.

*Trans and male sex workers are also heavily stigmatized, and while statistics on sex workers in Canada vary greatly and are generally influenced by their source, it is generally thought that most sex workers are women. 

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