Debra Haak is a PhD candidate in the Faculty of Law at Queen's University.
Amnesty International is proposing a new policy on sex work, which will be voted on at its International Council Meeting in Dublin later this week. In its proposed policy, Amnesty opposes the criminalization or punishment of activities related to the buying or selling of sex between consenting adults. This proposal raises serious issues.
Amnesty argues that the decriminalization of commercial sex would protect the rights of one subset of sellers – those who do so by choice. But commercial sex happens in a variety of ways, resulting in a variety of harms. While the international community has not achieved consensus on a form of legislative or policy response to address all of these harms, there is a trend toward trying to reduce the demand for commercial sex. This approach is embodied in Canada's new law, the Protection of Communities and Exploited Persons Act. This approach recognizes that commercial sex is not a choice for all sellers, which is the most problematic element of Amnesty's proposed policy.
Amnesty says its draft policy is based upon the human-rights principle that consensual sexual conduct is entitled to protection from state interference. Amnesty stresses that acts involving coercion, deception, threats, violence or human trafficking are not consensual and, therefore, those who are forced to engage in commercial sex are not part of the group of sellers whose rights it is seeking to protect.
Those who are forced into commercial sex are least likely to avail themselves of legal protection and most likely to experience harm. In championing the rights of consensual sex workers, Amnesty ignores the interests of the least-empowered sellers and seeks to remove criminalization from a country's tool kit of responses to remedy the harms experienced by non-consensual sellers.
In a recent article in The Telegraph, Catherine Murphy, a policy adviser at Amnesty, described the proposal as being about the rights of sex sellers around the world and about protecting them. She said the focus is not on the rights of those who buy sex, but the experiences of those who sell. Except she means only the experiences of those who sell in the absence of coercion, deception, threats, violence and trafficking.
Whose rights should society protect? Amnesty's proposal rests upon the acceptance of two key, unstated, foundational facts: that men have a right to buy sex, and that people have an unfettered right to engage in whatever commercial activity they chose. Thus, the policy suggests that countries not be allowed to interfere with the exercise of these rights; they should intervene in commercial sex only to criminalize human trafficking or enact regulations to assure the voluntariness of the participants and the safety of their working conditions. This draft policy is based on a harm-reduction approach, meant to reduce stigma of sex workers and to safeguard them from harassment and violence.
By framing commercial sex as a consensual act between adults, Amnesty is able to reasonably argue that the state has no role in relation to constraining it or to punishing those who engage in it. But commercial sex is often non-consensual and almost always involves relationships of inequality, whether it be gender, age, race or social status. There is more at stake than the commercial interests and safety of consensual sellers. As Amnesty well knows, the market is not the best way to protect human rights.