Evidence Not Ideology: A Critical Assessment of the Protection of Communities and Exploited Persons Act

Former sex worker Kerry Porth and policy expert Genevieve Fuji Johnson say that Bill C-36, far from protecting sex workers and communities, will create more harm.

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Earlier this month, the Government of Canada introduced Bill C-36, the Protection of Communities and Exploited Persons Act.  With this bill, the Government rejected decades of evidence and ignored the expert insights of key stakeholders.  The proposed legislation is an enormous disappointment to those who believe in the importance of evidence-based policy and the processes that are involved in formulating such policy.

The bill appears to replicate provisions that the Supreme Court of Canada ruled in Bedford were in violation of the Charter of Rights and Freedoms.  In December 2013, the Court ruled unanimously in favor of Terri Jean Bedford, Amy Lebovitch, and Valerie Scott, the sex workers who had launched the case in Ontario in 2007.  In its ruling, the Court responded to evidence, largely derived from the legal testimonies of and social scientific interviews with sex workers, that certain criminal laws concerning adult prostitution increase the vulnerability and stigmatization of sex workers.

Au Salon de la rue des Moulins - Henri de Toulouse-Lautrec

Henri de Toulouse-Lautrec, Au Salon de la rue des Moulins

It is well documented that, as a consequence of such laws, sex workers typically work alone, avoid working in regular premises, engage in “out-call” work, and either transport themselves or are transported by clients to these locations.  Sex workers generally do not hire drivers, bodyguards, or booking agents because these individuals could be understood to live on the avails of prostitution.  Given the communication law, street-involved sex workers are often confined to isolated, darkened, and unsafe areas.  They frequently have to quickly get into vehicles without discussing details of the proposed transaction, without taking time to make judgments about the propensity of the prospective client to violence, and without surveying the vehicle for broken door handles or for items that may be used as weapons, all of which are critical safety measure for sex workers.  The Court was clear that the impugned provisions violate the security of sex workers’ rights.  It’s hard to see how provisions in the proposed legislation will withstand judicial scrutiny.

Bill C-36 appears to reinstate the spirit if not substance of the laws the Court found unconstitutional.  By criminalizing the purchasing of sexual services, the bill would ensure that sex workers have to continue to conduct their business in an illicit and stigmatized context.The bill would make it a criminal offence to communicate for the purposes of offering sexual services in any place where a person under the age of 18 may be reasonably expected to be present.  Since this is virtually anywhere, this provision hardly differs from the communication provision struck down in Bedford.  Bawdy houses—indoor locations where sex work occurs—are no longer prohibited, but the proposed provision against advertising sexual services would make it impossible for sex workers to work in safer indoor locations.  Many would have to take their trade to the streets.

In addition, the Government has failed to recognize the policy expertise held by sex worker organizations across the country.  Typically, public policy is developed with important input from stakeholders such as industry representatives, technical experts, and selected civil society organizations.  The rationale for their inclusion is their expertise concerning a given problem and approaches to addressing it.  In the proposed bill, the Government drew from a single two-hour meeting during which sex work advocates were vastly outnumbered by anti-prostitution campaigners and members of law enforcement.  Instead of seeing sex worker organizations as stakeholders with first-hand knowledge about how to end the violence and exploitation within the trade, the Government views them as victims in need of rescue by state authorities.

Sex workers have knowledge of concrete measures that should be taken to minimize risks of harm.  They also have insights into the kinds of resources that would be necessary to provide opportunities to individuals wishing to leave the trade.  Organizations such as Providing Alternatives Counselling and Education (PACE), Sex Professionals of Canada, Sex Workers United Against Violence, Stella, and Maggie’s are in a unique position to provide policy-relevant knowledge toward achieving an evidence-based legal framework for prostitution.

Since the 1990s, the sex worker community has become increasingly organized.  For example, working with Pivot Legal Society, over 90 sex workers in Vancouver contributed legally sworn testimonies concerning their experiences with the criminal law.  These testimonies were compiled into a report,Voices for Dignity (2004), and presented to the House of Commons Subcommittee on Solicitation Laws in the mid-2000s and in Bedford in the late-2000s.  In the former, the majority of subcommittee members concluded that the harms associated with prostitution would best be addressed through general application criminal laws and that sexual activities involving consenting adults should not be criminalized.  In the latter, the majority in the Ontario courts and the Supreme Court concluded that the impugned provisions should be struck down because they cause greater harm than good.

Sex workers make up an invaluable epistemic community.  Drawing expert knowledge from this community would significantly enhance the effectiveness of a new approach to governance in this area.  It’s time to listen to them.

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Kerry Porth is a former sex worker and Chair of the Board of Directors for Pivot Legal Society@pivotlegal

Genevieve Fuji Johnson is an Associate Professor of Political Science, Simon Fraser University.

2 comments

  1. Sure like the lead element in the title of this essay: “Evidence Not Ideology”. Reminds me of something that Ignatius Loyola – progenitor of the Jesuits – said in his “Rules for thinking with the Church”:

    That we may be altogether of the same mind and in conformity with the Church herself, if she shall have defined anything to be black which to our eyes appears to be white, we ought in like manner to pronounce it to be black.

    Considering the testimony of many Conservative MPs at the recent Justice Committee hearings – particularly relating to the question of legalizing the sale of sex while criminalizing its purchase, I would say they have taken that “philosophy” very much to heart.

    In any case, I also agree with the essay’s conclusion, that it is “time to listen” to the sex worker community. However, I also think it of some importance to hear the voice of clients – as argued on the “John’s Voice” website which describes a survey, which I took part in, of some 1300 of us. While I will readily agree that it is the voices of sex workers which should carry the greatest weight, not least because they seem to bear the harshest consequences of problematic laws and the underlying social attitudes, I also think that the voices of johns at least provide some useful context: can’t really understand a market until one takes a close look at the motivations, objectives, values and circumstances of both buyers and sellers, particularly one with such diverse and well-populated spectrums on each side.

    But, for instance, the Pivot “Voices for Dignity” document argues:

    The affidavits highlight many ways in which Canada’s sex trade laws worsen the already harmful conditions under which sex workers live, add to the stigma of their employment and social position, and support the inference that sex workers are less worthy of value than other members of society.

    And it is that last bit – “worthy of value” – which is, I think, the crux of the whole matter, the rather large elephant in the room that needs to be addressed, the question that was at least broached by a Globe & Mail article asking “Is there a moral case against prostitution?” But when Peter MacKay can refer to sex work as a “degrading practice”, and to clients as “perverts” then one might characterize those negative attitudes as the tip of a rather large, problematic,and very public iceberg. And if clients are going to be criminalized under the new provisions of C-36 as a result then I expect there are going to be even fewer of us – close to a non-existent cohort at the moment – willing to come forward to support the providers and provide some validation of their worth. Which was a large part of my motivation for submitting a brief to the C-36 Justice Committee in which I said, “I feel some sense of obligation to a group of people that I think gets a far worse press than it deserves and which is likely to be very badly served by the proposed legislation.”

    But I do recognize that, as was in evidence at the hearings, not all aspects of the purchase of sexual services are all that salutary or edifying, that many are more along the line of an inhuman use of human beings. However, as the “John’s Voice” evidence suggests, that seems to be a relatively small percentage of a total population of motivations that probably runs the gamut from the pathological to the merely phsyiological to the profound. And which is probably not all that far removed from the situation with many other “appetites” – which makes one wonder why it is discriminated against, and rather egregiously at that. In any case, it seems to me that unless society is willing to explicitly address those various aspects of a profession that I think has a significant “redeeming social value”, I can’t see that any legislation, certainly C-36 as it stands, is going to be all that effective in reducing, much less eliminating, what appears to be the no small amount of grief that seems an unfortunate concomitant of the industry, at least as it exists under the current set of laws and attitudes.

  2. […] clarity within the proposed bill itself.   The last one comes from Impact Ethics, and offers a critical assesment of the proposed bill from the PoV of both former sex worker Kerry Porth and policy expert Genevieve Fuji […]

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