On September 28, 2010, Ontario Superior Court Justice Himel ruled that key sections of Canada’s three principle prostitution laws (bawdy-house provision, living on the avails of prostitution, and communicating in publicFootnote 2) contravened section 7 of the Canadian Charter of Rights and Freedoms and were therefore unconstitutional.Footnote 3 Appealed by the Attorneys General of Canada and Ontario, the ruling was partially overturned some 18 months later, on March 26, 2012, by the Ontario Court of Appeal (OCA).Footnote 4 The appeal court justices were, like Justice Himel, “satisfied that the current legal regime, and specifically the challenged Criminal Code provisions, interferes with prostitutes’ security of the person”.Footnote 5 Unlike the lower court’s de facto (partial) decriminalization, however, the appeal court offered a more restrained verdict.
The appeal court accepted that Criminal Code (CC) s 212, which criminalizes “living on the avails of another’s prostitution,” was unconstitutional because it was “overbroad and its effects are grossly disproportionate to its objectives”Footnote 6 and sought to remedy this by “reading in” the words “in circumstances of exploitation”.Footnote 7 Also accepting Justice Himel’s ruling that the bawdy-house law (s 210) was grossly disproportionate,Footnote 8 they deemed that the word prostitution should be removed from the s 197(1) definition of bawdy-house (as it applies to s 210).Footnote 9 Finally, the decision on the law prohibiting communicating in public for the purposes of prostitution (s 213.1) was split 3–2. Writing as the majority, Justices Doherty, Rosenberg, and Feldman asserted that, while they were satisfied that s 213 “has enough of an impact on prostitutes to engage their s 7 rights to liberty and security of the person,” they felt that Justice Himel failed to assign adequate weight to the legislative objective of preventing nuisance to the community.Footnote 10 The majority conclusion was that, on balance, the court was not able to assert that the law was grossly disproportionate to the legislators’ intent.Footnote 11 Writing for the dissent, Justice MacPherson offered seven arguments in support of upholding of Justice Himel’s ruling, concluding with his regret that his colleagues, having ruled that the laws prohibiting living on the avails of the prostitution (s 212.1.j) and being an inmate or keeper of a bawdy-house were grossly disproportionate, did not “reach the same conclusion with respect to a third provision that has a devastating impact on the right to life and security of the person of the most vulnerable affected group, street prostitutes.”Footnote 12
The OCA ruling has pleased few—sex worker rights groups are outraged that a law that increases the vulnerability and violence experienced by the most marginal sex workers is, on balance with community nuisance, deemed constitutional,Footnote 13 while religious groups and some feminist organizations are dismayed that prostitution appears poised to enter the normative landscape.Footnote 14 The decision is being appealed and counter-appealed to the Supreme Court of Canada,Footnote 15 and a growing number of groups, ranging from provincial health authorities to sex worker rights groups to Christian coalitions, are lining up to intervene. It is entirely possible, of course, that the issue will not be resolved in the courts but in Parliament. The appeal court’s ruling on the unconstitutionality of s 210 was suspended for 12 months to “give parliament an opportunity to draft a Charter-compliant bawdy-house provision.”Footnote 16 The OCA justices repeatedly tossed the legislative ball to the government:
A Charter-compliant solution requires a full reconsideration of the purpose and effect of the criminalization of bawdy-houses. This is a task for Parliament. We should not be taken as holding that any bawdy-house prohibition would be unconstitutional. It would be open to Parliament to draft a bawdy-house provision that is consistent with the modern values of human dignity and equality as directed at specific pressing social problems, while also complying with the Charter.Footnote 17
Thus, in Canada, we are at a precipice with seemingly endless possible responses to sex work before us. For example, with respect to the bawdy-house law, perhaps the government will endeavor to create Charter-compliant laws that criminalize indoor work; perhaps they will follow the lead of Sweden and criminalize only clients; perhaps they will legalize some forms of in-call work and implicitly/explicitly criminalize others; or perhaps, if some sex work is legalized, provincial and municipal governments will introduce regulation in the guise of health protection, zoning, and licensing. Of course, the decision might be resolved at the Supreme Court, which may overturn or uphold the decisions of the lower courts, opening up another range of possible scenarios, including decriminalization. At this pivotal moment it is essential that we give sober thought to what these potential policy configurations will mean for those most affected by the laws—sex workers.
In this paper we examine various international legislative responses to prostitution—Canada’s criminal-regulatory approach, legalization as implemented in Germany and Nevada (United States), Sweden’s end-demand partial criminalization, and New Zealand’s decriminalization model. Contributing to a growing body of literature that reads across policy models to illuminate destabilizing commonalities,Footnote 18 we argue that, while emerging from radically different ideological positions and embodied in varying policy approaches, each of these responses is grounded in stigmatic assumptions. The laws reflect and reproduce risk discourses that contribute to structural stigma,Footnote 19 legitimating risk-management tactics that exclude sex workers from full citizenship. It seems that a decriminalized model relies on the fewest stigmatic assumptions, but even New Zealand’s celebrated policy is regulatory in nature and reproduces structural and symbolic stigma.
Analyzing Policy Responses to Prostitution
Analyses of sex work policy have, for the most part, engaged in questions of what model is “best” according to the (often unarticulated) criteria of the author. It is only recently that a more profoundly critical approach has emerged that reads across and through policy models to disrupt aspirations toward a programmatic ideal type. Here we find researchers who endeavour to tease out commonalities in how apparently divergent approaches to sex work “play out” in the lives of sex workers; these authors assert that sex workers’ social and physical well-being will continue to be jeopardized as long as “prostitution issues are defined as a ‘problem’ amenable to state legislative and policy control.”Footnote 20 While not all cross-policy reviews have been uniformly pessimistic,Footnote 21 they nonetheless affirm that stigma undermines sex workers’ ability to realize their social and human rights.Footnote 22 Other scholars have reflected upon the paradox that “the frequently drawn distinctions between apparently diametrically opposed positions . . . is certainly less significant than is often assumed and may, in fact, be illusionary.”Footnote 23 In this vein, Laura Agustin challenges the modernist assumptions embedded in the widespread search by nation-states “for the most rational, most just, and least upsetting model”Footnote 24 to regulate commercial sex. After rendering the national morality underlying the “governmental impulse” visible, Agustin concludes that, in practice, “the endless debates about legal systems to control prostitution is bizarrely irrelevant, except for its symbolic value.”Footnote 25 More to the point is Jane Scoular’s examination of how the apparently divergent policy models of Sweden (criminalization of clients) and the Netherlands (legalization) play out in remarkably similar ways—increased marginalization of street-based sex workers and “a relative inattentiveness of many forms of indoor work.”Footnote 26 Unlike Agustin, Scoular de-centers (rather than dismisses) law and sheds much-needed light on the ways the regulation of sex work reflects and sustains neo-liberalism. Drawing on the insights of governmentality she demonstrates that, in practice, both models result in a complex and contradictory regulatory assemblage (both government at-a-distance and diffused governance) characterized by the valorization of self-governance, the expectation of self-regulation, and the responsibilization of sex workers. In this paper, we build on the insights of these authors and seek to contribute to this small body of emerging literature. By rendering visible the conceptual roots that underpin sex work regulation, and by drawing on the concept of structural stigma,Footnote 27 we excavate the question of how and why legislation contributes to civic and social marginalization of sex workers. To this end, we undertook an analysis of the legislation governing sex work in Canada, Germany, Nevada (United States), New Zealand, and Sweden to tease out embedded stereotypes and assumptions of risk/riskiness in legislation and policy. Recognizing that discourses are made real in their effects (albeit not transposed in a straightforward mannerFootnote 28), we draw attention to how these legal frameworks condition and constrain social practice and manifest in the civic exclusion of sex workers. We argue that stigmatic assumptions of risk/riskiness are not merely an impediment to sex workers’ citizenship; they are the very foundation of these policy models.
Structural Stigma and Sex Work
The fact that it is easy to articulate a discourse about “the kind of person who is a sex worker” speaks to stigma. It is the mark of stigma that this singular trait comes to define the person so that what the individual does is read as who sheFootnote 29is. The stereotypes come to mind quickly; they are so pervasive that it would be difficult to avoid knowing them.Footnote 30 They are reproduced in, among others, the discourses of police services,Footnote 31 in the media,Footnote 32 and by neighbourhood associations.Footnote 33 Sex workers are believed to pose a risk to society—they are dirty and vectors of disease; they are immoral and threaten family values; they are drug addicts and a disruptive presence in neighborhoods. Other stereotypes position sex workers as “at risk”—they are vulnerable to being victimized by their clients, by “pimps,” and by “traffickers”; they are exploitedFootnote 34 and in need of “saving.”Footnote 35 These paternalistic (or maternalistic) portrayals render victimhood a master status that erases sex workers’ agency and silences their narratives of resistance. The deeply embedded stigmatic assumptions of sex workers as at-risk and risky, simultaneously victim and victimizer, exist in tension; discourses that have little basis in fact come to be seen as true. Despite the reconfiguration of the contours of the sex industryFootnote 36 and the emergence of a vibrant sex worker rights movement with a clear and articulate counter-narrative,Footnote 37 the entrenched assumptions persist. Indeed OCA justices refer to such common knowledge, asserting that “everyone knows prostitution is a dangerous activity for prostitutes.”Footnote 38 They illustrate the extent to which ideas entrenched in “common knowledge” are reiterated in judicial reasoning, encapsulated in judicial-legal discourse, reified as truth, and ultimately embedded in case law—power/knowledgeFootnote 39 in the making.
Stigma was originally conceived by E. Goffman as an interactional phenomenon that played out in social judgment and stereotype-infused encounters between “normal” and stigmatized persons.Footnote 40 Although Goffman’s work was primarily micro-focused, and his analysis was rooted in the individualized effects of a discredited identity, we have argued previously that stigma can also be understood at the macro-level as embedded in societal structures and institutions and enacted on populations via regulatory and legal policy.Footnote 41 Structural stigma takes hold when assumptions about risk (whether risk to self or to others) become attached to a discredited identity through institutionalized discourse; these notions are manifested in targeted interventions designed to manage the risk posed by the stigmatized group, irrespective of individual circumstances or attributes.Footnote 42 Stigma, then, as a function of risk, is transformed from an individual experience of discredit to a collective experience of management and regulation. The interventions need not be intended as punitive; those who engage in the regulation of “risky” populations may believe that they are “helping” or acting in the best interests of those they define as victims. The discourse of risk management, even when constructed in a positive frame, provides legitimacy to the division of the “other” and the “normal” and reifies existing stereotypes and discredit.Footnote 43 In this article, we argue that the criminalized framework surrounding sex work in Canada is a clear example of stigma operating at the structural level, and that this structural stigma is also apparent in other international approaches to sex work regulation.
The social discredit and stigmatization of sex work emerges from deeply held beliefs about morality, rooted in religious and cultural mores. As J. McLaren and F. M. Shaver have each discussed,Footnote 44 the earliest constructions of prostitution and procuring laws in England and Canada reflected Victorian morality. The law provided a secular, criminal-legal framework for what was understood as a problem of “sin.” While more contemporary legislative discussions are couched in the language of public nuisance, community security, and risk, they do not question (and in fact, take as a given) the moral assumptions first made about sex work by the original legislators more than 150 years ago. The quasi-criminalization of sex work serves to reinforce underlying moral judgments, which assume that sex work is a literal and figurative pollution that is potentially damaging to communities; this discourse legitimates the removal of sex workers from public space. Laws that conceptualize sex workers as “at risk” (like the living off the avails legislation) code the discrimination against sex work as “immoral” work in terms that engage a seemingly protectionist stance for vulnerable women. Alan Hunt has argued that increasingly over the last century
morality has come to function through proxies . . . in and through other discursive forms, the two most important and closely related being the discourses of “harm” and “risk” . . . The moral dimension is not excluded, rather it becomes subsumed within discourses whose characteristics have a utilitarian guise.Footnote 45
Drawing on Foucault’s understanding of power/knowledge,Footnote 46 we can see how, in encoding moral judgment as a discourse of risk in law, those who supported the dominant religious framing of immorality surrounding sex work effectively silence alternative understandings and obscure the complex realities of sex workers’ everyday lives.
Criminalization of Sex Work in Canada
While the exchange of sexual services for financial or other compensation is not, and has never been, illegal in Canada, existing statutes undermine sex workers’ ability to labour without contravening the law. The statute most salient for street-based sex workers, Criminal Code s 213, was introduced in 1985 after significant lobbying by community associations who argued that street-based prostitution threatened the security of communities and children.Footnote 47 The law decrees that:
every person who in a public placeFootnote 48 or in any place open to public view (a) stops or attempts to stop any motor vehicle; (b) impedes the free flow of pedestrian or vehicular traffic […], or (c) stops or attempts to stop any person or in any manner communicates or attempts to communicate with any person for the purpose of engaging in prostitution…is guilty of an offence…Footnote 49
This, the most rigorously enforced of the prostitution statutes, draws on the notion that sex workers pose a risk to communities. As Chief Justice Dickson of the Supreme Court of Canada noted in 1990, the legislation:
clearly responds to the concerns of home-owners, businesses, and the residents of urban neighbourhoods. Public solicitation for the purposes of prostitution is closely associated with street congestion and noise, oral harassment of non-participants, and general detrimental effects on passers-by or bystanders, especially children.Footnote 50
The appeal court also evoked similar images of “risk seepage,” asserting that “street-prostitution is associated with serious criminal conduct including drug possession, drug trafficking, public intoxication, and organized crime.”Footnote 51
The very existence of specific laws to regulate the “nuisance” of street-based sex work speaks to structural stigma and the link between risk and morality. There are ample legal provisions to sanction the disruptive behaviours that may be characteristic of some street-based sex workers (and university students!). For example, public intoxication and trespassing are prohibited under provincial statutes; municipalities regulate littering and excessive noise; and causing a disturbance and loitering are prohibited under s 175 of the Criminal Code. If sex worker-specific laws are redundant, then they are ideologically significant—they position sex workers and their actions as inherently different from “normal” citizens and, in the process, reaffirm and legitimate that perceived difference.Footnote 52
While CC s 213 criminalizes sex workers’ communication for the purposes of prostitution in public and thereby inhibits their ability to solicit on the street, the bawdy-house law (s 210) is concerned with “a place kept or occupied, or resorted to by one or more persons, for the purpose of prostitution or the practice of acts of indecency.” Case law has deemed that “a place” may include homes, hotels, and parking lots that are used frequently or habitually. The law criminalizes “everyone who keeps a common bawdy-house,” or who:
a) is an inmate of a common bawdy-house, (b) is found, without lawful excuse, in a common bawdy-house, or (c) as owner, landlord, lessor, tenant, occupier, agent or otherwise having charge or control of any place, knowingly permits the place or any part thereof to be let or used for the purposes of a common bawdy-house.Footnote 53
After reviewing case law and historical analysis Justice Himel concluded:
Although morality was clearly one of the original objectives of the bawdy-house provisions, the provisions were intended to address a number of concerns under the relatively broad objective of preventing common or public nuisance. These concerns included health, safety, and neighbourhood disruption or disorder, as well as the prevention of immorality.Footnote 54
Here moral legalism, intersecting with “community concerns” about nuisance and disorder, trumps the health and safety needs of sex workers; in practice these laws make it illegal for sex workers to access the protections afforded by an establishment (i.e., screening, bouncer) or to work in their own homes (alone or with a colleague), where they can have security measures in place.Footnote 55 As we have seen, the OCA recognized that the law denies sex workers the right to manage risk and make choices about safe working conditions and that this endangerment is not justified by the legislative intent.
While Criminal Code ss 210 and 213 are firmly rooted in a discourse of sex workers posing a risk to the “community,” s 212 conceptualizes sex workers as at-risk and vulnerable to exploitation and victimization. This law emerged in the context of the progressive-era moral panic about the “white slave trade” perpetuated by dubious accounts of young women tricked and trapped into a life of prostitution.Footnote 56 Section 212(j) is a reverse onus offence that prevents sex workers from engaging in professional relationships when it criminalizes anyone who “lives wholly or in part on the avails of prostitution of another person.”Footnote 57 Section 212 further criminalizes third-parties such as managers, agents, or anyone who:
(a) procures, attempts to procure or solicits a person to have illicit sexual intercourse with another person . . . (h) for the purposes of gain, exercises control, direction or influence over the movements of a person in such manner as to show that he is aiding, abetting or compelling that person to engage in or carry on prostitution with any person or generally.Footnote 58
As both Justice Himel and the OCA Justices recognized, while there are no doubt, situations characterized by coercion, research has demonstrated the complexity and array of arrangements that sex workers have with bosses, managers, and others who coordinate, organize and/or supervise their labour or who workers hire to help them (i.e., drivers, web designers, receptionists). While some third parties take advantage of sex workers, others provide valuable services including equipment, advertising, and information as well as screening, protection, and security.Footnote 59 Indeed because section 212(j)—living on the avails—criminalizes relationships that help sex workers be safe (such as drivers/body guards, receptionists), the provision “increase[s] the harm to prostitutes.”Footnote 60 The appeal court sought to remedy this harm by reading into the law “in situations of exploitation” and thereby restricting its scope. Here the justices defined exploitation as “where the prostitute is dependent on the accused for drugs or because of youth, where the accused has not legal or moral claim to the prostitute’s earnings, or where the accused takes a portion of the prostitute’s earnings that is out of all proportion to the services provided.”Footnote 61
While the appeal court’s nuance is important, there continues to be a presumption that relationships between sex workers and managers are inherently prone to exploitation. This is ironic at best—capitalism necessitates the purchase (at less than market value) of the labour power of those who do not own or otherwise have access to the means of production. Put in Marxian terms—economic exploitation. The economic exploitation of workers in Canada is limited by such regulatory law as the minimum wage, but in no other sector is it assumed that employees are so vulnerable that they cannot even make decisions about the conditions of their employment. In reality, sex workers are made vulnerable to labour exploitation because of the (quasi) legal status of their occupation. Unlike other workers, they are unable to turn to provincial labour legislation if they are not paid or if they are injured while at work. Prohibitive laws masquerading as protectionism have the effect of excluding sex workers, on the basis of their presumed vulnerability and incompetence as rational neo-liberal subjects, from the labour rights, security, and options afforded other Canadian workers. This contradiction renders visible the moral subtext and the deeply embedded paternalism of the laws.
Evidently the law, dating back to the 1800s,Footnote 62 uses exceedingly sloppy brush strokes as it endeavors to “protect” sex workers by limiting their options. The same paternalism is evident in the legal treatment of sex workers’ personal relationships under section 212(j). Here, too, workers’ lived experiences are ignored. Their ability to evaluate their own circumstances and make decisions for themselves is implicitly denied when, based solely on their participation in the sex industry, intimate relationships are presumed—until proven otherwise—to be exploitative.Footnote 63 According to the Canadian HIV/AIDS Legal Network:
“Living on the avails” casts the shadow of possible criminal charges over anyone who regularly spends time with a sex worker, including a sex worker’s spouse or partner, family members, roommates or friends. This Section is also characterized by an unconstitutional “reverse onus”—instead of being presumed innocent until proven guilty, the person charged must prove that he or she is not living “parasitically” off the money the sex worker makes.Footnote 64
Indeed, the appeal court justices argue against wholly striking down section 212(j) precisely because it is a reverse onus offence and “the presumption that is intended to facilitate the prosecution of exploitative pimps would also fail.”Footnote 65 The justices maintain that there is a need to preserve the reverse onus provision that can be used to prosecute exploitative pimps when sex workers do not want to testify against them. Here we see the stigmatizing assumption that sex workers are at-risk and incapable of identifying, let alone operating in, their own best interests. These individuals are presumed to be women who are hyper-vulnerable to being taken advantage of by unscrupulous men and are therefore in need of protection by the state. One can almost hear the voices of self-righteous, middle class, moral reformers echoing through the decades: “Poor deluded creatures, their mentality is so stunted with sensuality, drink and sin, they do not realize the awful bondage they are subject to.”Footnote 66
It would appear that the state subjects sex workers to differential treatment and laws premised on their labour location, rendering the job a “master status.”Footnote 67 The laws negate all other identities and assess all actions and relationships through the lens of one activity (sex work). In addition to being stigmatizing, the procuring laws, like those that seek to control the nuisance of street-based sex work, are redundant. There are ample provisions in the Canadian Criminal Code to protect all citizens from criminal acts, including trafficking in persons,Footnote 68 physical assault,Footnote 69 sexual assault,Footnote 70 forcible confinement,Footnote 71 and harassment.Footnote 72 These generic laws could be used to address the harms experienced by sex workers without forcing them to labour in potentially unsafe ways.Footnote 73 The existing sex work-specific laws reify symbolic forms of stigma, rendering discrimination and civic exclusion acceptable public reactions to sex workers.
Civic Exclusion
The laws around sex work, so often framed as a means of “saving” sex workers from themselves and others, undermine their ability to draw on the legal and civic protections available to other Canadians. Sex workers are hesitant to report victimization to the police because they fear that they and/or their employer may be charged with prostitution-related offences. When sex workers are victims of assault that is not related to their work, such as domestic violence, they find that it is coded and responded to differently by police on the basis of their occupation. According to N. Currie and K. Gillies, rather than charging a sex worker’s abusive partner with assault, police routinely lay charges under CC s 212.1.(j) (living on the avails).Footnote 74 This charge results in the “outing” of the sex worker’s labour location and is a significant disincentive for women living in abusive relationships to turn to the police. As Currie and Gillies note, “generic criminal laws [would] […] place the focus directly on the abusive activity itself; not on the woman’s occupation or relationship.”Footnote 75
As we have seen, criminalization and the failure to recognize sex work as a legitimate form of labour excludes sex workers from the protection of civil labour regulations. Similarly, ineligibility to contribute to Employment Insurance, parental leave programs, and the Canada Pension Plan constitute yet another form of civic exclusion. Further, the inability to demonstrate a source of legitimate income limits access to credit, the capacity to obtain a mortgage, or even to rent an apartment. To address the myriad of problems and discrimination that accompany existing sex work laws, advocates of legal change have proposed several different policy approaches. In the coming sections, we critically evaluate models of legalization, partial criminalization, and decriminalization for evidence of structural stigma and examine the implications for sex workers.
Legalization
Those who promote a legalized or regulatory approach to sex work are largely motivated to minimize the harms believed to accompany this “unfortunate,” albeit inevitable, social practice: organized crime, the nuisance of street-based work, “pimping,” and disease.Footnote 76 In principle, legalization facilitates the policing of the sex industry and gives workers access to criminal justice protection and redress, the security of labour laws, and a measure of legitimacy.Footnote 77 For example, German lawmakers argued that the 2002 Prostitution Act (which self-consciously proclaims that prostitution is not immoral) would improve the legal, labour, and social conditions of sex workers, while at the same time “the criminal activities that often surround prostitution…will have the ground cut from under them.”Footnote 78 In practice, stigmatic assumptions still permeate and result in a hyper-regulatory approach characterized by the layering of legislation (public health, federal or state law, and municipal regulation).
In Germany, under the federal Prostitution Act, sex workers who sign an employment contract have the right to sick pay, pension benefits, and labour protection. However, these rights, enshrined in federal law, are undermined by other federal, state, and municipal regulations premised on the same stigmatic assumptions we see in Canada. For example, municipal “exclusion zones” (enforced through criminal sanction) mean that in some cities, like Munich, street-based sex work is prohibited, while in other municipalities, it is restricted to very isolated and dark industrial areas of the city, where sex workers lack access to sanitation and security.Footnote 79
Although the German legal model of prostitution originated in a discourse of amorality and rights for sex workers, these legal changes have not erased stigma. A government-funded evaluation of prostitution in Germany speaks to the enduring legacy of symbolic and structural forms of stigma:
The question of immorality remains contentious . . . This has created legal uncertainty for prostitutes, owners/managers of prostitution businesses and government agencies. How prostitution is classified has remained subject to the various stipulations issued by state ministries and even the moral sensibilities of individual representatives of government agencies.Footnote 80
While sex workers in Germany are ostensibly empowered to make rational choices about their labour location(s) and activities, the continued conceptual linkage of sex work with criminal activity and the hyper-regulation at the municipal level perpetuate symbolic stigma without acknowledging that moralization, sometimes masquerading as risk, underlies the policies.
Unlike Germany, the state of Nevada (United States) enforces a legalized model that is explicitly premised on regulating harm. Counties with fewer than 400,000 inhabitants may licence brothels under Nevada Revised Statutes s 244.345. However, the law remains preoccupied with the notion of public nuisance and containment; tight controls are maintained on zoningFootnote 81 and the location of establishments.Footnote 82 Further, a number of laws are premised on the assumption that sex workers pose a risk to public health. Workers are responsible for ensuring that their patrons use barrier protection during sex acts,Footnote 83 and they are tested weekly for STIs and prohibited from working if evidence of infection is found.Footnote 84 Moreover, they must regularly be tested for HIVFootnote 85 and can be criminally charged for engaging in prostitution following a positive test.Footnote 86
Other statutes reveal the presumption that sex work is associated with criminal activity and therefore needs to be regulated. Sex workers are subject to a police checkFootnote 87 and must apply and pay for a license. Prostitution and soliciting are permitted only in licensed brothels; any sex work that takes place outside of this context is criminalized.Footnote 88 Thus, sex workers are prohibited from working independently; they are required to pay the brothel owner’s percentage, the costs of room and board, and sometimes mandatory “tips” to support staff.Footnote 89 Although they must conform to the expectations and conditions of employment set out by brothel owners, sex workers in Nevada are classified as independent contractors. This means that, like erotic dancers and municipally licensed body-rub parlour attendants in Canada, they are legitimate workers who are outside of the protection of employment standards and labour laws.Footnote 90
It would appear that the same structural stigma we see in Canada’s criminalized response permeates legalized models of prostitution as well. Laws are based on the assumptions that prostitution is disorderly, requiring regulation and police surveillance, and that sex workers are vectors of disease. This cluster of stigmatic assumptions is used to justify mandatory health testing, very restricted working options, and spatial segregation. Sex workers also continue to be positioned as conditional citizens and denied access to full social and civic inclusion. Moreover, while a legalized system allows some sex workers to work without contravening the law, legalization also creates a criminalized (and even more repressed) sector.Footnote 91 Workers who cannot work within the confines of the legalized regime (i.e., they do not meet the criteria for licenses, have a criminal record, are irregular migrants) or do not want to do so (i.e., they wish to work independently or do not want the permanent stigma of having registered as a sex worker) are criminalized and subject to the same repression imposed by any criminalized system. The physical endangerment that was the subject of the Ontario Charter challenge is also a real and present concern for illegal sex workers in a legalized regime.
Partial Criminalization
As we have seen, the legalized and criminalized systems are principally concerned with managing risk to “communities” in the form of nuisance, social disorder, and disease. The end-demand (or Swedish) model of partial criminalization pivots on somewhat differently configured notions of risk/riskiness. This legal approach is rooted in the 1970s feminist rethinking of gender and patriarchy, in which prostitution (and pornography) were identified as the symbol of the social, sexual, and economic domination of women by men,Footnote 92 and is informed by research that defines sex work as slaveryFootnote 93 and rape.Footnote 94 In 1999, the Swedish Violence against Women Bill asserted that “one issue that was closely related to that of violence against women and a lack of gender equality was the issue of men who purchase sexual services, usually from women, namely, the issue of prostitution.”Footnote 95 In this conceptual context, sex workers are not merely “at risk” of exploitation; rather, sex work itself is a form of gendered sexual violence. Swedish activist Gunilla Ekberg is blunt:
In prostitution, men use women’s and girls’ bodies, vaginas, anuses, mouths for their sexual pleasures and as vessels of ejaculation, over and over and over again. Prostitution is not sexual liberation; it is humiliation, it is torture, it is rape, it is sexual exploitation and should be named as such. Consequently, males who use women and girls in prostitution are sexual predators and rapists.Footnote 96
The 1999 Swedish Sex Purchase Act that makes it illegal to “obtain a casual sexual relation in return for payment”Footnote 97 is ideologically cohesive and symbolically powerful—it criminalizes the buyers (presumed to be men) but not the sellers (presumed to be women) of sexual services. That said, the same stereotypical tropes that underlie aspects of the Canadian legislation reverberate: sex workers are framed as “exploited women,” the possibility that “prostitution is a business transaction between two equal parties”Footnote 98 is dismissed, and sex workers’ assertions of agency are categorically negated. Indeed, their right to make such a choice is irrelevant:
Those who defend prostitution argue that it is possible to differentiate between voluntary and non-voluntary prostitution, that adults should have the right to freely sell and freely purchase sex, and that the ban on the purchase of sexual services represents an outdated position based on sexual morality. However, from a gender equality and human rights perspective . . . the distinction between voluntary and non-voluntary prostitution is not relevant.Footnote 99
This is structural stigma—discourses of risk (to self and to society) are used to justify and legitimate regulation. Here we see a stigma feedback loop—stigmatic assumptions and ascription of victimhood, inconsistent with sex workers’ subject position, are drawn upon to de-legitimate and then reproduced in order to rationalize talking over, and for, sex workers, denying their voice and negating their agency. Moreover, this “carceral feminism”Footnote 100 individualizes social problems, thereby justifying a reliance on state apparatus—the same institutions that deny the human and civic rights of sex workers.
These contradictions have played out in Sweden; researchers,Footnote 101 Norwegian government investigators,Footnote 102 and Swedish sex workersFootnote 103 assert that there is significant evidence that the law has resulted in negative consequences, including increased violence and greater social and civic exclusion. For example, street-based sex workers in Sweden are working in dark and isolated areas (since clients will not risk approaching sex workers where there are witnesses), the client base of good customers has been eroded, and workers are not taking the time to properly assess potential clients. Sex workers are at risk of losing housing since landlords are now vulnerable to sanction, and the police’s interpretation of possession of condoms as evidence of sex work is a significant disincentive to using barrier protection.Footnote 104 Perhaps most explicitly speaking to the imperviousness of criminalization, sex workers are videotaped and followed by police and required to testify against their clients; those who refuse to comply are criminally charged with obstruction.Footnote 105 The Swedish Institute, while supportive of the law, acknowledges that:
people who are currently being exploited in prostitution state that the criminalization has intensified the social stigma of selling sex. They describe having chosen to prostitute themselves and do not consider themselves to be unwilling victims of anything. Even if it is not forbidden to sell sex, they feel they are hunted by the police. They feel that they are being treated as incapacitated persons because their actions are tolerated but their wishes and choices are not respected.Footnote 106
Deep-seated moralism is brought into sharp focus when these authors not only dismiss sex workers’ knowledge and experiences as “feelings” but go on to assert that the “negative effects of the ban that they describe must be viewed as positive from the perspective that the purpose of the law is indeed to combat prostitution.”Footnote 107 Neoliberal ideology is implicated in celebrating those who “have extricated themselves from prostitution”Footnote 108 as “good choice makers” while accepting the denial of social and civic rights to those who are unwilling to make the prescribed correct choices. Those individuals, marginalized and dismissed as irresponsible (risky) neoliberal subjects, must suffer the consequences.Footnote 109 The complex realities of women navigating choices within economic, social, and personal constraints, which cannot simply be wished away, are rendered invisible.
Decriminalization
In 2003, New Zealand became the first nation in the world to wholly decriminalize sex work. Amid controversy, existing laws that criminalized communication for the purposes of prostitution, keeping or managing a brothel, and living off the earnings of another’s prostitution were repealed and replaced by the Prostitution Reform Act (PRA), which permits the commercial sale of sex by individuals over the age of 18.Footnote 110 Explicitly, the PRA states that its purpose is to:
decriminalize prostitution (while not endorsing or morally sanctioning prostitution or its use) and to create a framework that—(a) safeguards the human right of sex workers and protects them from exploitation: (b) promotes the welfare and occupational health and safety of sex workers: (c) is conducive to public health…Footnote 111
Under the PRA, managed brothels employing more than four workers must apply and obtain a brothel operator certificate,Footnote 112 while small, owner-operated collectives of four or fewer workers are exempt.Footnote 113 The law also sets out specific health and safety requirements that mandate the use of condoms or barrier protection for any sexual service involving vaginal, anal, or oral penetration; clients are also implicated in these regulations and subject to a fine if “all reasonable steps” are not taken to “minimize the risk of acquiring or transmitting sexually transmissible infections.”Footnote 114 Sex workers in New Zealand can receive customers in their own small, secure establishments, are empowered to manage health risk by obliging clients to use condoms, and can draw on labour laws to negotiate working conditions with their employers.Footnote 115
While the PRA responds to the harms and discrimination of previous legislation by prioritizing worker health and safety over moralistic concerns, remnants of stigma remain. The explicit disavowal of the endorsement and moral sanctioning of prostitution in the PRA cues us that moral judgment is not absent from the law and that it does not consider sex work as a job “like any other.” This framing is underscored by section 18, which states that a person’s entitlement to benefits under the Social Security Act and the Injury Prevention, Rehabilitation and Compensation Act is neither cancelled nor affected by refusal to work, or to continue working, as a sex worker. In section 16, inducing or compelling persons to become involved in the commercial sex industry through the misuse of authority, blackmail, threat of violence, or the provision or withholding of illicit drugs is also expressly prohibited. Once again, we see a set of provisions that are redundant in light of existing criminal laws prohibiting sexual assault, sexual exploitation, blackmail, assault, and drug trafficking; the protectionist intent of the law pivots on the acceptance of the prevailing discourses linking sex work with exploitation and drug use. The subtext of the law suggests that sex workers are “at risk” and hyper-vulnerable to exploitation. Moralization may also be read in legal restrictions on the advertising of commercial sexual services;Footnote 116 however, in reality, these regulations are not overly onerous (advertising is allowed in classified sections of newspapers and on the internet) and are similar to the restrictions commonly placed on the advertising of liquor and cigarettes. The remainder of the act treats sex work as any other type of business, regulating its commercial practice through provisions that reinforce that sex workers are subject to the protections of the Health and Safety in Employment Act Footnote 117; regulating the location of commercial sex establishments through zoning by-lawsFootnote 118; and specifying the health and safety obligations of managers and workers.Footnote 119
Although decriminalization is by no means a panacea, there is significant evidence to suggest that, in New Zealand, it has created the conditions of possibility for sex workers to minimize the risks that they encounter and to act as “responsible” neo-liberal citizens. Research suggests that, if they are victimized, sex workers in New Zealand are now more likely to report the incident to police and to seek assistance.Footnote 120
Further, the minimal regulations surrounding sex work under this model, comparable to that regulating any other service business, serve to significantly reduce structural stigma by relying less on assumptions of inherent risk. However, symbolic stigma in the form of a moralizing discourse remains a feature of the act, and the redundant provision of “protections” for sex workers against procuring alerts us to the legacy of the “at risk” discourse. While interviews with New Zealand sex workers reveal that decriminalization has not significantly reduced the social and symbolic stigma that they encounter in their communities, the experiences of other marginalized groups suggest that the removal of regulation imbued with the structural stigma of risk may be a first step in breaking down symbolic and moral stigma.Footnote 121
Discussion
We began this paper with the recognition that we are standing at the precipice of change in the Canadian legislative/legal response to sex work and, therefore, that reflection on what those changes will mean for those who labour in the sex industry is both timely and imperative. Drawing on the concept of structural stigma, we have examined international policy models and demonstrated that while criminalization, legalization, and end-demand are certainly divergent policy approaches, all are infused with moralistic presumptions, draw on the rhetoric of risk, and are premised on (virtually identical) stigmatic assumptions. In Canada, the criminalized model draws on contradictory discourses that portray sex workers as both passive victims of exploitation and active agents who pose a threat to the order and safety of communities. In either case, sex workers are assumed to be incapable of acting as responsible, neo-liberal citizens, and their labour is de-legitimized and excluded from civil protections. Partial criminalization (end-demand), as in Sweden, resolves the tensions inherent in framing sex workers as both at-risk and risky by bestowing the disempowered, objectified status of victimhood that denies even the possibility of sex workers’ agency. The paternalism of the Swedish model once again denies sex workers the opportunity to engage as citizens and perpetuates labour conditions that render sex workers more vulnerable and marginalized. Underscoring both the Canadian and the Swedish models is a moralized framing, which suggests that sex can never be “work” in the sense of legitimate labour.
A legalized model, such as Germany’s, does position sex work as work and provides sex workers with access to civil legal protections. However, despite an official discourse of amorality, the layering of state and municipal regulations excludes and marginalizes sex workers in many communities. In Nevada’s legalized model, we see legislators drawing on the rhetoric of risk and portraying sex workers as the carriers of HIV and other sexually transmitted infections. Of course, one might consider regulations requiring HIV testing and the use of barrier protection as a means of empowering sex workers as responsible, neo-liberal citizens who exercise agency in protecting their own health and that of their clients. However, the targeted nature of this regulation suggests that a structural stigma is in operation that singles out sex work as uniquely “risky”; a food service worker infected with Hepatitis can easily pass the disease to many customers, yet regular testing for Hepatitis is not required in the restaurant industry. This suggests that food service workers are believed to either pose less of a risk to public health than sex workers or be more responsible in their labour practices and inclined to voluntarily act to protect the well-being of their customers. Decriminalization under the Prostitution Reform Act in New Zealand avoids the stigmatic assumption that sex workers are irresponsible by stipulating that workers must “take reasonable steps to minimize the risk of acquiring or transmitting sexually transmissible infections”Footnote 122 and leaving the precise mechanisms to the discretion of individual workers. Although, as we have seen, New Zealand’s celebrated model retains the echoes of risk and moralization, it is considerably more subtle and less intrusive in the everyday lives of individuals working in the sex industry.
As Canada’s judiciary and legislators reflect on the options for change, fueled by neo-liberal agendas and in the context of profoundly embedded stigmatic assumptions, we would argue that any regulatory model risks reproducing the harms that Justice Himel identified and that researchers and sex workers have been arguing for years—violence, the denial of rights, and social and civic exclusion. This is a cautionary tale that speaks to the importance of transcending stigmatic assumptions of risky/at risk and positioning sex workers as legitimate labourers entitled to the same rights and protections as any other Canadian worker. Rather than importing any of these models wholesale, we call for a Made in Canada solution that takes its lead from sex workers—the men and women who embrace the term “sex work”Footnote 123 precisely because it is an appropriate linguistic framing of their experience.
