4 – Harms caused by bad laws

There are a number of common reasons why many Canadians would like to stop prostitution from happening, or at least reduce how frequently it happens. There is the argument that prostitution is degrading toward women, encouraging men to view women as objects and sex as something that exists solely for a man’s pleasure – an attitude that can spread outside of the prostitution situation into other areas of life and erodes the progress that we have made toward greater gender equality. There is the argument that prostitution runs counter to Canadian and/or Christian values and degrades the moral fabric of our society. Many are concerned about the public nuisance and eyesore that street prostitution can bring, and for the negative elements that street and brothel prostitution can bring into communities. Others are concerned about the psychological and physical harms and dangers – physical and sexual assault, drug addiction, disease, etc. – that a prostitute’s lifestyle can inflict upon sex workers and wish to rescue them from this life.

Here at Sane Prostitution Laws, it is not our aim to argue for or against any of these reasons for wanting to eliminate or reduce prostitution. What we do want to address is the ways in which well-intentioned laws that sound good on paper can in practice inflict serious harms and dangers on those who they should be protecting. There is a common saying that the road to hell is paved with good intentions, and it is our belief that this saying is very true when it comes to the legal approach to prostitution that was recently found to be unconstitutional by the Supreme Court of Canada.

In Canada, a law is in violation of the Charter of Rights and Freedoms and thus unconstitutional if it causes more harm to citizens than the harm it prevents. The supreme Court’s recent ruling on several of Canada’s prostitution laws found these laws to be largely ineffective in terms of preventing the harms that they sought to prevent while having the side effect of putting sex workers in considerable unnecessary danger. For these reasons, three of Canada’s prostitution laws have been declared unconstitutional and will be struck from the criminal code in one year’s time. This gives the government of Canada a deadline of one year to come up with a new legal approach that doesn’t do more harm to Canadians than it prevents. There are some who feel that putting sex workers in danger has value as a deterrent or is a necessary evil in the aim of abolition or reduction of the sex trade. However, the Supreme Court has made it clear that this approach is not a viable one and that we cannot put Canadians in this kind of serious danger without violating the Charter of Rights and Freedoms.

Three different laws relating to activities surrounding sex work are affected by this Supreme Court judgement. Firstly, there is the law making it illegal for anyone but a sex worker to live off of the avails of sex work. Essentially this law was designed to help prosecute abusive pimps, but it makes it illegal for a sex worker to hire any kind of staff whatsoever, including bodyguards, managers, drivers, etc. Secondly, there is the law making it illegal to operate a “common bawdy house”, meaning any kind of brothel where multiple sex workers work together in a shared, long-term location. Finally, there is the law making it illegal to publicly communicate for the purposes of prostitution, meaning that sex workers and their clients cannot discuss engaging in sex for money in any kind of public location.

It should be noted that the act of exchanging money for sex is not itself illegal and hasn’t been illegal since at least 1892 in Canada. Instead, our laws focus on criminalizing a number of the acts that surround sex work. The limitations that we’ve placed on some of the behaviours around sex work, however well intentioned, have been found to have the main effect of preventing sex workers from engaging in the behaviours that help them to be safer. The fact that sex work itself is a legal activity makes it very difficult to constitutionally justify laws prohibiting activities that would make sex work safer. Furthermore, while the three specific laws mentioned above have been found unconstitutional by the Supreme Court, there are a number of other Canadian laws regarding prostitution that are not affected by the judgement. It remains illegal to try to convince someone to become a sex worker (procuring), to control the movements of a sex worker or force them to work, or to engage in indecent acts in public. Furthermore, even without special laws applying to prostitution itself, it remains illegal to engage in human trafficking, sexually exploit minors, engage in unlawful confinement, make threats or commit sexual or physical assault in any context, including the context of prostitution.

The dangers posed to sex workers by bad legislation are not merely theoretical. These dangers are very real and serious, and are underlined by a disturbingly high body count among those who work in the sex trade. Despite making up a much smaller amount of the overall population (exact estimates vary widely), sex workers made up 12% of the total number of Canadian women murdered or missing since 1946, according to recent research by Maryanne Pearce1. In the US, Canada and the UK, sex workers are the group of women most likely to be killed as a result of their occupation, with a work-related homicide rate eighteen times higher than average2. The Pickton murders are only the most recent glaring example of this deadly trend. This is to say nothing of the countless non-fatal assaults and rapes committed against sex workers, which often go unreported. The dangers that sex workers face are extremely real, and we have a moral obligation as a nation to adopt laws that minimize rather than exacerbate these dangers. We cannot afford to stand on principle and walk a road to hell paved in both good intentions and the blood of murdered sex workers, and must instead face up to the uncomfortable realities of the practical effects of our attempts to abolish prostitution.

 

Living on the avails of sex work

The law found unconstitutional:

212. (1) Every one who

  • (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.

 

The noble aim of this law is give the police a tool by which they can more easily prosecute abusive pimps. Of course, it is entirely possible to prosecute such pimps based on their abusive behaviour itself, as the parts of section 212 that aren’t in danger of being struck allow the police to charge “everyone who […] 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 […] compelling that person to engage in or carry on prostitution”. The law making it illegal to live off of the avails of an underage prostitute also remain on the books, as it wasn’t one of the laws challenged or found unconstitutional. As well, police can charge abusive pimps with crimes that aren’t directly related to prostitution, such as assault, unlawful confinement or uttering threats. Making it illegal to profit from a sex worker with the defeated law gives the police an extra avenue by which they can prosecute pimps, but the police have many other avenues available to them even after this law is struck.

The problem is that the living off the avails law, while it arguably makes it easier for the police to go after abusive pimps, has other far-reaching effects on sex workers. As discussed in the “Common Misconceptions about Prostitution” article, it’s actually a relatively small minority of sex workers who are under the thumb of abusive pimps, so those who are potentially served by this law are few in number compared to those who suffer its side effects. This law makes it illegal for a sex worker to hire any kind of security, or support staff. This means no managers, no drivers and – most importantly and dangerously – no security or bodyguards.

Sex workers are in a very dangerous line of work. Their job involves being alone with people in intimate settings, generally with a significant degree of anonymity involved. Sex workers are in greater danger of of being victims of murder and physical and/or sexual assault than essentially any other line of work, with research showing that sex workers are eighteen times more likely to suffer occupation-related homicide than other women3. The gruesome Pickton murders are only the most recent example of a long trend of killers targeting sex workers specifically because of their vulnerability4. Sex workers are in need of bodyguards and/or security support more than nearly anyone else, but this law made it illegal for anyone to work in that capacity. The main argument against the living off the avails law was that it puts sex workers in significant risk of serious harms by denying them the ability to legally hire security. This security could be as simple as a driver paid a share of earnings to wait for the sex worker during a call and intervene if help is requested or he doesn’t hear from her in a predetermined amount of time. Of course, some have pointed out that not all sex workers will choose to, or be in a financial position to, employ some sort of bodyguard, and this is true. However, it would be ridiculous to outlaw bicycle helmets just because not everyone would choose to wear one, and it’s just as ridiculous to outlaw such a safety measure for sex workers just because not everyone would make use of it.

It is also arguable that this law, designed to help crack down on abusive and criminal pimps, actually helps to perpetuate them. Sex work is dangerous enough that sex workers still have a need for security, and if serving as security to a sex worker makes one a criminal then generally speaking only criminals will want the job. By definition, under the living off the avails law, anyone who works security for a sex worker or group of sex workers is committing an indictable offense punishable by up to 10 years of jail time, so such individuals need to be comfortable with breaking the law, will have little to nothing to lose by committing further crimes and must exist in hiding from the police. This is a prime breeding ground for criminal and abusive behaviour, exactly the kind of pimps that the law is designed to combat. On the other hand, if sex workers can hire security who can operate openly without fear of being prosecuted, then they can work with legitimate, law-abiding managers or security staff who would have much to lose from committing abusive and criminal behaviour, making criminal pimps essentially obsolete and unnecessary.

The law against living off of the avails of prostitution makes sex work far more dangerous. The intention behind it is to give police more tools to prosecute abusive pimps, but it is dubious whether it is useful in this regard, it actually helps perpetuate the circumstances in which criminal pimps are a necessary evil for sex workers, and police have other tools at their disposal to prosecute abusive behavior in pimps and non-pimps alike even without this law. There is a good (if naive) intention behind it, but it is difficult to argue against the point that the living off of the avails law is more harmful than it is helpful and thus both unconstitutional and morally unjustifiable. It was, frankly, not a sane law.

 

Keeping a common bawdy house

The law found unconstitutional:

  • 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.

  • (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.

  • (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.

  • (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.

 

Essentially, this makes it illegal for multiple sex workers to work together in a long-term, indoor location. The reasoning behind this law is to avoid a bawdy house/brothel from becoming the kind of hub that would attract a group of sex-workers and Johns, arguably an undesirable element, to a particular neighbourhood. Once again, despite the relatively good intention behind it, the actual effects of this law only serve to put sex workers in danger.

Most attacks against sex workers occur when she and a client are in an isolated place, alone5. One of the best ways for sex workers to stay safe is to work in groups. The best ally of someone looking to victimize a sex worker is anonymity. The more witnesses, the safer things are. Furthermore, having people within earshot to respond to cries of help makes things safer as well. Multiple sex workers working out of the same location – in other words, a brothel or ‘common bawdy house’ – is, quite simply, the safest possible situation for sex workers to be in6. This is especially true given the interaction with the law against living off of the avails, which makes it illegal for sex workers to employ security staff. The only security that a sex worker can rely on is their fellow sex workers, and preventing them from working in a shared location robs them of even this sort of security.

Of course, even under the laws found unconstitutional by the Supreme Court decision, hidden and illegal brothels do exist, and are in fact fairly common, typically disguised as massage parlours. For many sex workers, the risk of being prosecuted for breaking the law is better than the increased risk of being assaulted or killed by working alone. Even these illegal brothels fail to provide the safety that a legal brothel would, however. Without the sex workers having the ability to go to the police without putting oneself in danger of being charged with a crime, abusive Johns still have a fair amount of impunity to commit crimes against sex workers. Furthermore, brothels disguised as massage parlours risk unsuspecting people wandering in just looking for a massage and encountering an undesirable situation.

Legal brothels would provide the maximum level of safety for sex workers, and our law against them is simply pushing brothels underground and making them less safe for everyone. Concerns about bringing undesirable elements to neighbourhoods could be better served through zoning and advertising laws restricting where and how brothels can operate, similar to how smoking and pornographic magazines are legal, but access to to and advertising of these things are reasonably limited by law. There very much can and should be a middle ground between denying sex workers the safest way to ply their trade and having to deal with red lights and half-clothed girls hanging out windows when you’re walking down the street. Brothels already exist in hiding, relatively unseen by passers-by, and legal brothels could be equally unobtrusive.  An inflexible and absolute blanket law against common bawdy houses puts sex workers in unreasonable danger relative to the harms that it is intended to prevent. Like the law against living off the avails, it is not a sane way to legislate on prostitution.

 

Communication for the purposes of prostitution

The law found unconstitutional:

  • 213. (1) Every person who in a public place or in any place open to public view

  • (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.

This law was created in the 1980s to cut down on the nuisance caused by street prostitution and to make prostitution less visible to the general public. It prohibits any conversation in any public location for the purpose of arranging an act of sex for money. On the surface, this law makes a lot of sense. The vast majority of Canadians would prefer not to have people openly discussing acts of prostitution on the streets where anyone, including children, could overhear. Limiting communications between sex workers and their clients seems on the surface to be a good way to cut down on the incidence of prostitution. However, much like the living off the avails law, this blanket law is so vague and wide-reaching that it had a lot of side effects that are harmful to sex workers.

The practical upshot of this law is that sex workers and their clients typically don’t discuss details until they are in private. In the case of street prostitution, this means climbing into someone’s car, often under a guise such as asking for a ride to a nearby location and letting them drive away with you. In the case of escort in-calls and out-calls, it means waiting until you’re alone in a room together. Similarly, in the case of brothels under the guise of massage parlors, sex workers get potential clients alone in a room through the cover pretense before any talk about sexual services occurs. With any law about activities that are difficult to define, people will essentially always find a way of working around the law and engaging in the desired activities via a roundabout but technically legal route. Prostitution is a prime example of this, with sex workers and clients typically going off somewhere private on an implied mutual understanding without sex ever having been discussed, and with any money being exchanged having been technically paid for a non-sexual service such as a simple date with an escort or a massage.  Forcing people to use such a workaround is seldom very effective in stopping the behavior in question, but often has other effects such as making it less safe or allowing innocent and unsuspecting people to find themselves accidentally in a compromising situation.

A close friend of mine was approached by a young woman in a drug-store parking lot one evening who asked him for a ride to a location down the street. Being a nice guy he agreed, it not being really out of his way, and once they were driving she began sexually propositioning him. Tricking him into the private location of his car was a way around the communication laws, and even had he secretly been recording the entire interaction and had turned the recording over to police, no laws were broken and no charges could have been laid. Rather than being able to easily walk away from being propositioned in the parking lot, he was in the more awkward and difficult to escape position of having a sex worker proposition him in his car. Due to the workaround, the communication law caused the exact opposite of its intended effect. Similarly, I recently spoke to a massage therapist who informed me that due to the common workaround of disguising brothels as massage parlours, it’s very common for legitimate masseuses to get propositioned by clients seeking sexual services. This can be very uncomfortable, even traumatic, for young women going into massage and I was told that some even drop out of training to become massage therapists because of the frequent sexual requests. In both cases, the law designed to protect the public from having to deal with prostitution caused innocent people to be put in uncomfortable positions by unwanted private conversations about prostitution.

Negotiation of the price of services is the time in a sex work interaction where violence is most likely to occur7. One of the reasons that price negotiation can be so potentialy dangerous is that the type of sexual services that will be asked of a sex worker are by no means uniform and predictable, nor is the cost. Many clients turn to prostitution in order to satisfy highly specific fetishes that they have trouble fulfilling in other contexts, which sex workers may or may not be willing to offer and/or may charge extra for, on a case by case basis. Without the ability to communicate beforehand, it’s entirely possible for a sex worker and client to go to the trouble of getting somewhere private – often with a client having already paid for an escort’s time or for a massage –  only to discover that the sex worker isn’t willing to offer the services that the client is looking for, or that the price is too high for the client to pay. This type of misunderstanding where a client suddenly finds out that he isn’t able to get what he’s looking for, after he’s already gotten the sex worker alone in a car or hotel room, creates a needlessly dangerous situation. Forcing this negotiation – the most dangerous phase of a sex work interaction – to occur when the sex worker is alone with a client rather than beforehand in a safer context such as online, over the phone or on a street with witnesses puts sex workers in a great degree of unnecessary danger.

Another difficulty with the communication law is that it was written during the 1980s, a different era when street prostitution was much more of a common phenomenon and computers, let alone the internet, were something that were not yet part of the average person’s life. Since then, the world wide web has revolutionized the sex industry just as it has revolutionized so many others, with a huge number of sex workers now seeking clients on the information superhighway rather than the physical streets. Anecdotally, we see far fewer street prostitutes these days than we did prior to the internet’s rise in popularity. While some might credit this reduction in street prostitution to the communication laws that were instituted at about the same time, the corresponding rise in the number of online escorts suggest that the vanished street prostitutes were merely adapting to the new technology and changing venues.  Our decades-old laws haven’t been as quick to evolve along with the new technology, however, and it remains very vague and unclear to what degree different kinds of online settings count as public vs private in terms of the recently struck law against public communication about prostitution. Is a website a public location in that anyone can theoretically go there? Does requiring people to create a user account make it private? The law is very unclear on these points, as it was written before there was really such a thing as websites. Most escort sites err on the side of caution and don’t specify any sexual services, instead only selling the escort’s time and leaving discussions about sexual services to occur in person and in private. This puts online escorts in similar risk of dangerous misunderstandings as street prostitutes, even though online communications don’t expose unwilling bystanders to prostitution the way that street prostitution might. A website isn’t like a city street, in that you never need to pass through it on the way to somewhere else. Despite this, those who sell sex online are being exposed to danger by a law designed to combat the public nuisance of street prostitution, written in a time before the internet as we know it even existed. Any new laws will need to deal coherently with digital realities and be clear about how they do and don’t apply to different kinds of online communication.

Of course, even in the offline world, allowing for the types of conversations that help sex workers to keep safe doesn’t have to mean that sex workers will be free to accost passers-by or engage in loud and explicit discussions of sex that can be overheard by children and those who find such talk to be offensive. Even after the struck communication law ceases to be in effect, it will remain illegal to impede vehicular or pedestrian traffic for the purpose of communicating about prostitution, meaning that sex workers can’t stop someone on the street who doesn’t want to be stopped. As well, harassment and public decency laws provide pedestrians with the same protection from unwanted sexual conversations with sex workers that they have from being sexually harassed by any other member of society. Finally, the Supreme Court has made it clear that we are free to draft new and more specific laws about communication about prostitution that don’t endanger sex workers the same way that the current vague blanket laws do, such as prohibiting such conversations within earshot of children or mandating that they don’t take place in a loud or disruptive manner. Just as we were able to make sure children aren’t subjected to advertising for cigarettes we can similarly regulate the ways in which escort agencies can advertise. Certainly, at the very least we can write laws that account for the existence of the internet rather than being designed to only deal clearly with physical spaces.

A sane legal approach to communication about prostitution will have to recognize that people will find workarounds, will have to deal with the modern reality of the internet, will need to focus on the specific behaviours that we want to curtail rather than being overly broad and vague, and must be conscious of its safety-related side effects. Regardless of to what degree you might personally think communication about prostitution should or shouldn’t be limited, it’s plain to see that the recently struck law only questionably minimizes the nuisance of street prostitution and does so at a serious cost to the safety of sex workers. The Supreme Court has ruled that the only sane approach to to keeping prostitution out of the public eye is one that doesn’t do so at the cost of women’s safety and lives.

 

The Ontario Court of Appeal’s Compromise

The 3 laws that were recently struck down in the Supreme Court of Canada on December 20th, 2013, were originally rejected as unconstitutional by the Ontario Superior Court of Justice on September 28th, 2010. The case was then taken to the Court of Appeal for Ontario, which made a compromise ruling on March 26th, 2012.

The Appeal Court’s compromise ruling would have modified the law against living off the avails to apply only “in circumstances of exploitation”, rather than rejecting the law in its entirety. Theoretically, this would have allowed sex workers to hire legitimate security and other staff while giving the police tools to prosecute pimps who would seek to exploit them. However, many have criticized this compromise on the basis that what constitutes an “exploitative” relationship is extremely nebulous and difficult to define. For example, my wife is an aesthetician and in that field it’s not unheard of for an aesthetician working in a shop to take home only about 25-50% of what a client pays them for their services. Some might look at this and call it exploitative – although given that the shop pays for rent, utilities, advertising and supplies, perhaps not. How exactly would one judge whether a manager, brothel or escort agency is exploiting sex workers when the issue is such a nebulous and difficult to define one even in mainstream industries?

The key issue when it comes to the type of pimping that the living off the avails law is designed to combat isn’t exploitative business arrangements, it’s patterns of abuse, threats and coercion that keep sex workers trapped in the relationship with the pimp. The focus of the laws and police should be on cracking down on these criminal abuses, which will remain entirely illegal even after the Supreme Court judgement goes into full effect next year. Decriminalizing brothels and living off the avails will allow sex workers to create legal business relationships that don’t need to be hidden from the police, allowing them to have the same protection from abuse as anyone else. When sex workers are free to leave a business relationship they find exploitative, with the same protections from threats, coercion and violence as the rest of us, then they will be protected from exploitation in the same manner as a worker in any other industry.

The Court of Appeal for Ontario also decided in a slim 3-2 vote that the law against communication about prostitution was constitutional so long as the law against brothels and the blanket law against living off of the avails were struck. The reasoning is that the anti-communication law made street prostitution too unsafe in the current situation, but that if sex workers had the safer options of working in brothels and hiring security there wouldn’t be a need to engage in the unsafe practice of street prostitution and as such the safety issues with the communication law would be less pressing. However, this still fails to consider the ways in which this law is outdated and vague in the internet age, as well the ways in which it compromises the safety of escorts as well as street prostitutes. Even if we do want to keep the core purpose of this law, it is long overdue for an update and clarification. Keeping it in its current vague and outdated form doesn’t serve anyone.

The Supreme Court of Canada ultimately rejected the Appeal Court’s compromise and ruled with the original Superior Court judge, striking all three laws under debate completely. The Supreme Court didn’t necessarily disagree with the the reasoning behind the Appeal Court’s compromise, but felt that it had overstepped its mandate in altering the Superior Court’s original ruling. A higher court should only alter a lower court’s judgement if there is adequate proof that there was a serious flaw in the lower court’s ruling. To use a sports analogy, the ruling on the field stands unless the video review shows that the ruling was clearly and indisputably wrong. According to the Supreme Court, the Appeal Court failed to properly prove that the original ruling was sufficiently flawed, and thus were out of bounds to change the original ruling. Such attempts at creating balanced and sane new laws, the Supreme Court made it clear in their ruling, is the domain of Parliament and in their ruling they gave parliament a mandate to come up with a new legal approach that doesn’t compromise the safety of sex workers.

Ultimately, what we need are new legislative approaches that take into account the realities of modern sex work and the practical effects and harms that the laws will have. Our current laws fail in this regard and have rightly been struck down so that a new and better approach, with greater effectiveness and less collateral harm, can be adopted. No matter what we aim to achieve in terms of reducing or eliminating the incidence of prostitution, clinging to very questionably effective laws that only serve to threaten sex workers’ safety and lives is not a sane way to pursue these goals. We need to protect and ensure the safety of all Canadians with our laws, and that includes the sex workers themselves. We cannot walk a road to hell that is paved in good intentions and the blood of murdered workers.

  1. Pearce, Maryanne. An Awkward Silence: Missing and Murdered Vulnerable Women and the Canadian Justice System (Doctoral Thesis, University of Ottawa, 2013) [unpublished], p 257 []
  2. Pearce, p 274-275 []
  3. Pearce, p 274-275 []
  4. Pearce, p 273, 306-307 []
  5. Pearce, p 276 []
  6. Pearce, p 277, 303 []
  7. Pearce, p 296 []

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