Bruce Ryder is an associate professor, Osgoode Hall Law School, York University.
It doesn’t take long for the Conservative government’s bill on sex work to go off the rails: In the first sentence of the preamble it declares that “exploitation is inherent in prostitution.” In the context of the exchange of sexual services for consideration between consenting adults, this ex cathedra pronouncement is demonstrably false. It ignores mountains of social science evidence and the testimony of many sex workers. The bill perpetuates stereotypes that marginalize and stigmatize sex workers.
Bill C-36 and the government’s discourse about it draws to a remarkable degree on what the scholar Gayle Rubin identified as deep wells of “sex negativity” in our culture. Sex is neither redeemed nor corrupted by the presence or absence of economic exchange, any more than it is by the social approval or disapproval the relationship receives. Rather, the social value of any sexual activity is determined by the quality of respect and the quantity of pleasures that participants bring to each other.
The stereotype that sex work lacks social value is most commonly expressed by the question, “Would you want your daughter to be a sex worker?” Well, no, not in a society that disrespects her work and degrades the value of sexual pleasure. But if we direct our energies to dismantling the prejudices that undergird the question, the answer might be different.
The proposition that commercial exchange inevitably renders sex exploitative is a moralistic or ideological premise that will not stand scrutiny in the courts in the inevitable Charter challenge.
In rulings limiting the scope of obscenity law (Butler 1992) and legalizing adult swingers’ clubs (Labaye 2005), the Supreme Court of Canada affirmed that criminal offences must be based on concrete harms, not on conventional understandings of right and wrong. The court said that “legal moralism,” where a majority decides what values should inform individual lives and then coercively imposes those values on minorities, cannot serve as a basis for imposing limits on Charter rights. The criminal law, the court has said, should be shaped by “objectively ascertainable harm instead of subjective disapproval.”
Sexual exploitation is an objectively ascertainable harm. Preventing it is an important objective that is part of the definition of many sexual offences. Given the profound imbalances of power that can exist in the sex trade, the criminal law has an important role to play in condemning and punishing exploitative practices and relationships. But before criminalizing adult sexual relationships, exploitation is a harm that needs to be proven, not merely asserted.
Bill C-36 has some laudable provisions that respond to the need to focus on exploitative relationships and protect sex workers from risks of harm. First, the bill amends the bawdy-house provision of the Criminal Code to make it legal for sex workers to work indoors. Second, the bill draws a careful line by targeting people who exploit sex workers, such as pimps and procurers, and exempting those who provide services that can enhance sex workers’ safety, such as security guards. In these two ways, the bill is aligned with the Supreme Court’s ruling in the Bedford case, which found the existing “bawdy house” and “living on the avails” offences to be unconstitutional because they exposed sex workers to heightened risk.
Sadly, the focus on targeting exploitative relationships is completely absent from the proposed offences that prohibit the purchase of sexual services and the advertising of sexual services. Because of the false and moralistic presumption that all commercial sex is exploitative, Bill C-36 makes it an offence to purchase sexual services in any context, and likewise makes it an offence for anybody to advertise sexual services in any context (such as in a magazine or on a website).
Because these two provisions of the bill will heighten the risks faced by sex workers while legally selling their services, their overbreadth renders them unconstitutional. They are easily fixed by confining them to circumstances of exploitation.
Buyers and advertisers of sexual services should face prosecution only if they have failed to ascertain the absence of conditions of exploitation. This should include a duty to take all reasonable steps to ensure that sex workers are 18 or over, are not trafficked or otherwise subject to violence or coercion, and have given meaningful consent to sexual contact that is not compromised by, for example, mental health disabilities, alcohol or drugs.
If Bill C-36 were amended in this way, it would achieve its objective of preventing sexual exploitation more effectively. Police, prosecutorial and judicial resources would not be wasted targeting non-exploitative sexual transactions between consenting adults. Rather than stigmatizing sex workers, their clients and advertisers, they would all be enlisted in eliminating real harms, rather than avoiding prosecution for imaginary ones.