Among the many unanswered questions in the federal government's controversial sex worker legislation, Bill C-36, critics wonder: Will it be a criminal act to let a sex worker have an online or social media presence or representation of themselves? The answer could make the simple act of being online into even more of a potential legal minefield for sex workers.
This new legislation criminalizes nearly everything about sex work: buying services, communicating to buy them, benefitting from them, and advertising them. It is so broad, poorly written and potentially dangerous that more than 200 legal experts have asked the government to reconsider.
Among the seven amendments made in a Parliamentary committee on Tuesday, there was a key fix to a line in Bill C-36 that criminalized public communication for the purposes of purchasing sexual services, "where persons under 18 might be reasonably expected to be." That could have limited discussion of sexual services from almost everywhere, the new more limited language just bans those conversations from "at or near a playground, school or daycare."
But remaining in the bill, now headed back to the House of Commons, is the criminalizing of anyone who "receives a material benefit from the crime of purchasing sexual services." So anyone a sex worker might hire, work with or pay – including other sex workers, web designers and Internet service providers – could be found guilty.
In their Q&A document about Bill C-36, The Canadian HIV/AIDS Legal Network writes: "…in theory, sex workers may…purchase goods or hire services from others if those people do not 'encourage' participation in sex work, but there remains considerable uncertainty in the law."
Also still in the legislation: A sweeping ban on advertising the sale of sexual services. Would an individual sex worker's website be considered an advertisement? What about Twitter accounts with "sex worker" or "escort" in the bio? Would direct messages be considered private or public communication, or advertisements? We simply don't know, and the consequences could be devastating.
As Justin Ling wrote last month in The National Post, the advertising ban would disproportionately affect print publishers, but it would also make it difficult for independent and indoor sex workers to attract clients through online listings. Even less clear is the impact on identities hosted on ad-supported social media tools – such as Twitter, Facebook and Tumblr – which among other things make money off author content through data analysis and sales.
"If you say a sex worker can post her own ads but all the venues could be considered third parties, where can she post them?" Says Nikki Thomas, a former sex worker and the former executive director of Sex Professionals of Canada. "The solution is to just export the ads." Indeed, many popular Canadian escort review and information-sharing websites (like perb.ca and merb.ca) have already moved their web hosting to The Netherlands, where no such laws exist.
I asked an independent adult companion – who runs her own Twitter account and website as well as lists her services on external escort sites – how she thought the bill would impact her work. "It will make it nearly impossible to communicate about my sexual services in an explicit way, which is a huge red flag," she says. "For example, I post that I offer 'safe' services, which is code for using protection. I won't be able to explain this clearly in my advertisements, which is more likely to cause misunderstandings and confusion about expectations. That is where consent can become compromised."
She later forwarded me an e-mail that a representative from Slixca, an escort guide and review website, had sent her. The company had edited any reference to sexual activity out of her profile in order to comply with their content guidelines, obscuring what she actually does.
Ms. Thomas agrees that the legislation would make it extremely difficult for sex workers to set appropriate expectations. "The acronyms that providers use [such as BBBJ for oral sex without a condom] to indicate what they're okay with would be impossible to list, so clients may assume they're all on the table," she says.
Canada's existing sex work laws were deemed unconstitutional (infringing on security of person) by the Supreme Court back in December. Bill C-36 was drafted to replace them, and according to Peter MacKay, target the "pimps, perverts and perpetrators."
The proposed crimes tell a different story, for here we are with another set of proposed laws that could force sex workers to work alone, in private, without ways to promote themselves or their services – just as unsafe as they were when Terri-Jean Bedford, Amy Lebovitch and Valerie Scott began their case.
In the decision, Chief Justice Beverly McLachlin wrote: "Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes."
The federal government would be wise to, you know, stop doing that.