Like conversations about other morally controversial topics, those about sex work are polarized. But the debate is not simply over whether exchanging money for sex is good or bad, right or wrong. Instead, the focus is on the sex workers themselves.
Today's judgment by the Supreme Court of Canada provides an opportunity for Parliament to rethink our polarized way of seeing sex workers.
According to some, sex workers (most of whom are women, many of whom are transgendered) are criminal offenders. Socially wayward and depraved, they are legally and morally responsible for their inopportune choices and conduct. Another view sees sex workers as vulnerable victims, easily preyed on by the lewd, lascivious and the privileged.
Depicting sex workers either as victims or as offenders is simplistic and inaccurate. Nevertheless, both portrayals readily justify subjecting sex work to the criminal law. The criminal law is believed to deter the sex worker-as-offender, or at least to punish her. The criminal law is also said to shield the sex worker-as-victim from exploitation by those with much more money, power, and physical strength.
Although the two views of sex work are contradictory, both have underpinned our criminal law's treatment of sex work since Confederation.
Both representations of sex workers are flawed. Empirical evidence on sex work in the Western world reflects a more complicated reality for most sex workers. Research shows that criminalization has no real hope of rehabilitating or protecting sex workers.
Some sex workers insist they chose their line of work. But social and economic desperation drive many women, men and trans people to sex work. Once in the sex industry, they face undeniably acute risks of physical and psychological harm. The threat of violence looms especially large for those who work on the streets rather than in brothels or other indoor establishments.
The evidence does not reflect the image of sex worker as transgressor. Instead, sex workers' lived experiences undermine their portrayal as offenders who merit the blunt force of criminal prosecution and penalty.
At the same time, casting sex workers as forsaken victims mistakenly justifies the deployment of the criminal law in the name of protecting vulnerable women. But sex workers are far from helpless. Social science data show that sex workers identify, calculate and avert risk in multiple ways. By choosing where, how and with whom to work, sex workers display shrewd resourcefulness and intense solidarity with one another. They are not simple, passive casualties of the sex industry.
Just the same, the risks imposed on sex workers are stark and law needs to pay attention to that. Criminalizing sex work has the opposite effect of its purported protective aim. Rather than enhancing sex workers' security, prohibition forces sex workers into obscure and dangerous sites. They and the violence visited on them stay hidden in these zones. The risk of criminal prosecution and the promise of stigma deter them from bringing such instances to light.
It's time to move beyond the simplistic victim-offender binary that lies at the root of conversations on sex work. Legal responses must instead account for the sex work's real risks while recognizing and facilitating workers' capacity for managing and surmounting adversity.
Angela Campbell, a law professor at McGill University, is the author of Sister Wives, Surrogates and Sex Workers: Outlaws by Choice? of (Ashgate 2013)