News
11 min

Sex laws & national debates

The drive to deciminalize adult sexuality

Caption(Wendy D)

If one crusading Vancouver MP has her way, Canada could soon see big changes to the federal laws governing adult sexual behaviour. Laws that endanger the lives of working prostitutes and expose queer communities to selective harassment could all be repealed.

Though Parliament’s Subcommittee On Solicitation has yet to file its report, Vancouver East MP Libby Davies has heard enough.

“The communicating law is bad, bad, bad and I’ll be arguing for its repeal on harm reduction grounds,” Davies, the parliamentarian who pushed for the formation of the subcommittee, said in an April phone interview.

“I think the bawdyhouse provisions have to go as well,” she continued. “There is no legitimate reason for the way this law has been used against gay bathhouses.

“This is just based on ridiculous moral rhetoric.”

Parliament adjourned for the summer before the subcommittee had a chance to file its report. Parliament will reconvene on Sep 26.

But the subcommittee has already showcased a rich supply of new evidence for fierce ongoing national debates about sexuality, law, privacy, autonomy and violence.

These debates are of vital concern to queer communities across the country whose consensual sexual practices have been criminalized for far too long – and to all other Canadians who care about freedom, safety and individual dignity.

Almost everyone in the debate agrees on a few points.

Child prostitution is a different matter from adult sex trade activity, and is unacceptable. The conditions of poverty, child abuse and racism that force some sex trade workers into the field are important problems in themselves, and any progress made in relieving them will mean fewer women and men are coerced into unwanted sex trade work.

But after these consensus points, the real fight begins.

Some critics say the legal status quo is a disaster, leaving marginalized street prostitutes increasingly vulnerable to violent and predatory men. The answer, they say, is to take the prostitution laws off the books altogether.

Other voices argue with equal passion against decriminalization.

***

Decriminalization could eliminate a wide array of sex laws still on Canadian books. Sections 210 to 213 of the Criminal Code speak to prostitution-related offences and are the main focus of Davies’ touring investigators.

Sections 210 and 211 prohibit keeping or bringing others to a “common bawdy-house,” which can mean anything from the classic female brothel to a gay bathhouse where prostitution or “indecent acts” are said to occur.

The selective application of these two sections to target gay bathhouses can be disturbingly intrusive into the lives of queer Canadians.

Just ask the patrons of a Hamilton steambath who face charges for being “inmates” in a bawdyhouse, a charge that, for all its mid-Victorian quaintness, can often ruin the life of a closeted gay man who is involuntarily outed.

Section 212 prohibits procuring and “living off the avails” of prostitution. Section 213, the most contentious of the prostitution laws, prohibits stopping traffic or communicating in public for the purpose of prostitution.

Many voices blame section 213, brought in to control “public nuisance” aspects of street prostitution in 1985, for driving sex trade workers away from their traditional strolls and indoor venues into dark, secluded industrial neighbourhoods where they are fatally vulnerable to predators.

Because section 213 criminalizes communication about a transaction that is itself legal, working street prostitutes are under pressure to avoid observers and cannot take as much time to assess whether a potential john who pulls up in a car is just a customer or a potentially violent bad date.

It was, in fact, the epidemic of prostitute murders in Vancouver’s downtown Eastside over the past few decades that prompted Davies, whose riding includes that desolate urban killing ground, to propose the creation of the subcommittee.

Simon Fraser University researcher John Lowman has shown that in the 20 years after section 213 was adopted in 1985, prostitute homicides in BC increased dramatically, spiking upward from eight deaths in 1980-84 to 22 deaths in ’85-89 and 24 in ’90-94.

The sex trade death totals for the last decade have yet to be determined, due to the uncertainties surrounding the nightmare levels of prostitute murder seen in the downtown Eastside, but the lower mainland numbers are clearly well over 100 lost women.

Edmonton police recently announced a similar pattern of sex worker murders in their jurisdiction.

With the discovery of the corpse of another murdered prostitute in an Edmonton-area field in mid-May, the number of butchered sex trade workers in the Alberta city rose to 11 over the last 16 years.

Since the adoption of section 213, working prostitutes have experienced more on-the-job deaths than Canadian police.

SFU’s Lowman told the Parliamentary subcommittee that “the communicating law played a pivotal role in creating the social and legal milieu that facilitated these homicides.”

Another witness, transgendered sex trade worker Raigen D’angelo, told the committee about the impact of section 213 and other anti-prostitute enforcement initiatives.

“That summer there was nobody watching me while I was on a street corner. I was working in the Broadway area [of Vancouver] where I met my first violent customer. I was working alone that evening as I did most of the time.

“I took a man back to my home and he attempted to murder me. I came out from the washroom and a loud click echoed in the air. It was a switchblade. To my shock he lunged at me with the knife and blood began to squirt and gush from my body.

“I tried to defend myself, but he kept slashing me. He had put the chain on the door, and while I was defending myself I had to unlock the door and remove the chain and get out. I finally got out after being stabbed 17 times, and stumbled in front of an old lady’s home in a pool of my blood.

“I ask what your laws have done for me?”

***

The prostitution laws weren’t the only laws witnesses targeted in their testimony to the subcommittee when it stopped in Vancouver in March.

Lawyer Garth Barriere, representing Pink Triangle Press (Capital Xtra’s parent company), also challenged the anal intercourse provisions of section 159, which he calls “the most offensive single provision in Canadian criminal law, clearly unconstitutional.” Section 159 makes it a crime for anyone under 18 to have anal sex; it also criminalizes anal sex between more than two consenting adults.

In his presentation to the subcommittee, Barriere pushed for the elimination of section 159 on the basis that it selectively criminalizes and sets higher age limits for anal intercourse compared to vaginal intercourse.

He also argued for sweeping repeal of Criminal Code provisions that criminalize consensual adult sex: section 213 which prohibits communication about prostitution; section 210, the bawdyhouse provision; section 167 which prohibits “indecent theatrical performance;” section 175 which prohibits “indecent exhibition;” and section 163 which prohibits “exhibiting a disgusting object/show.”

In addition, Barriere called for reform of section 173 (1), which touches on reasonable expectation of privacy with regard to “indecent act” offenses.

Pink Triangle Press was not alone in urging the subcommittee to prune away much of the antique Criminal Code language aimed at regulating adult sexual behaviour.

Egale Canada, the national queer lobby group, testified before Davies and her colleagues in Ottawa this April. Director of advocacy Laurie Arron called for the repeal of any references in law to anal sex and for the elimination of the reference to “acts of indecency” from the bawdyhouse laws.

Arron pointed out that section 173 is problematic because its definition of “public place” includes bathhouses and other closed door settings, and because the definition of “indecent” remains subjective.

But it was the testimony of sex trade workers that seemed to have the most effect on Davies and the subcommittee.

Well over 100 sex trade workers had appeared already by mid-April, Davies said, and their testimony was full of calls to repeal the laws that criminalize them.

“Some of the testimony left us in tears,” said Davies. “We were moved by the courage and dignity of the sex trade workers who spoke with us. They were eloquent about the harm done to them and their safety by the communicating law in particular.”

Pivot Legal Society, a Vancouver group dedicated to providing legal support for marginalized populations in the Downtown Eastside, joined the BC Civil Liberties Association in urging the committee to recommend decriminalization of prostitution.

Pivot speaker Katrina Pacey told the subcommittee that her group’s publication Voices For Dignity, which includes sworn affidavits from 91 Vancouver-area sex trade workers, reflects a strong consensus amongst these workers for repeal of Canada’s prostitution laws.

“The evidence and analysis shows that these laws are an abject failure. To continue to force sex workers to endure the current conditions is unconscionable,” Pacey said.

Ann Pollack, speaking for the BC Civil Liberties Association, also called for decriminalization.

“Let’s get the police and the courts out of this business,” she said.

***

But calls for decriminalization were not universally popular amongst the witnesses before the subcommittee.

Some, including spokespeople for neighbourhood groups, “family values” social conservative groups like the anti-gay Focus On The Family, police vice squads and some feminist organizations, say that any move to decriminalize sex for sale or bathhouse/bawdyhouse sex will ignite a firestorm of increased child prostitution and coercive pimping across the country.

These critics see all prostitution as exploitative and inherently violent, and question whether anyone can make a real, informed choice to work as a prostitute. They also focus on claims of damage done to neighbourhoods by the presence of street prostitution, damage ranging from condoms and needles on street corners and schoolyards to “disturbing” glimpses of public sex.

The most eloquent and disturbing voices to make the case against decriminalization in the Vancouver hearings came from feminist organizers and scholars who emphasized the sexism they contend is built into the very structure of prostitution. For example, researcher Melissa Farley told the Vancouver hearings: “The very definition of the job is sexual harassment. It’s simply not possible to protect someone whose source of income exposes them to the likelihood of being raped, on average, once a week.”

Jacqueline Lynn, another researcher, also views prostitution as an essentially degrading experience for all prostitutes, and argues against decriminalization.

“For another moment, I want you to imagine that you are a woman who is being used in prostitution. Every time that a john buys your body to masturbate in, on or around, he has pornographic vignettes running in his head and he re-enacts these vignettes on your body. While he is masturbating, he tells you that you are a dirty whore or a nasty skank, or that sucking is really all you’re good for.

“You are nothing more than a sexualized, commodified collection of body parts to him,” she said.

Many working prostitutes disagree with the feminist allegation that all sex work is inherently non-consensual and degrading. Still, most agree that their profession is inherently dangerous.

All the more reason to repeal the sex laws, they say.

***

Kelly, a transgendered Cree former sex trade worker who now works with Pivot Legal, has bitter memories of the treatment she received both from harassing thugs and patrol cops when she was on the street. She thinks repeal of the solicitation laws would improve safety and working conditions for prostitutes.

“If there were no laws, there wouldn’t be any need for pimps, and prostitutes would be safer,” she said in an interview last fall, explaining that legal marginalization makes sex trade workers more likely to rely on pimps for at least the illusion of safety.

Jennifer Clamen, a Montreal campaigner with La Coalition Pour Les Droits Des Travailleuses Et Travailleurs Du Sexe, a group of sex trade workers and advocates, also favours decriminalization.

“These laws are really harmful,” she said. “The coalition is calling for the removal of 210, 211, 212, 213.

“Some women’s movement groups have focussed in on the violence,” she noted. “Abolishing sex work doesn’t address violence against women or violence against sex workers. Ameliorating the conditions for sex workers creates a safe space for sex workers to work in dignity and safety.”

Clamen, in an initiative separate from the law reform and advocacy work of the Coalition, is currently in discussions with the Canadian Union Of Public Employees about forming a union for sex trade workers.

“Sex work is a job, and we need to focus on labour rights.”

Jamie Lee Hamilton is a prominent Vancouver transgender and prostitutes’ rights activist, and she has been active in the sex trade off and on since age 15.

Hamilton has advocated for years for a more effective police response to the missing women case in the Downtown Eastside. She is active in campaigns to abolish prostitution law and maintains a website on the topic.

Her attempts to provide a safe space for working prostitutes at Pandora’s Box in 2000 ended with a police raid and charges under the bawdyhouse law. The charges were eventually stayed.

When a reporter met with Hamilton last October, she emphasized her opposition to the feminist critique of prostitution.

“They don’t understand what prostitution is. They say prostitution is slavery. Their disturbed thinking is based on emotion and is endangering sex trade workers,” she said.

“They are further endangering prostitutes,” she underlined. “I guess they’re only in favour of choice when it’s their choice.

“The gay community,” she added, “should stand in solidarity with sex trade workers, side by side against oppression.”

“Mike,” a 19-year-old hustler working a darkened street corner on Vancouver’s Boystown stroll, says he turned his first trick in Toronto at 15 and has worked the Vancouver streets intermittently over the last few years.

The tall, dark-eyed young man turns occasional tricks to pay for his education at a technical school where he’s training as a chef.

He’s in favour of decriminalization and cites Pierre Trudeau’s dictum about keeping the state out of the bedrooms of the nation.

Mike is proud of the efforts he and other adult hustlers make to keep under-age hustlers off the stroll. He’s never been busted himself, he says, and hasn’t heard from the other male hustlers on the stroll about the kind of bad-date violence experienced by female and transgendered prostitutes.

The main police activity he’s observed is occasional sweeps to move the stroll down a few blocks to accommodate outdoor film shoots.

“I don’t think prostitution is a bad thing. Even if someone says it’s a bad thing, they’re not going to stop it.

“People are getting killed,” he notes, “and that’s because they’re hiding.

“Let prostitution be more open.”

***

And so the debate rages on. But the public dialogue the committee’s tour has engendered will continue, and we all need to figure out what our positions are and let the government know.

Here’s what I’ll be passing on to my MP.

After spending nearly a year preparing this article, what I remember most is the eloquent anguish and passion of many of the voices in this national clamour.

I remember the earnest, prim family-values Christians, the wounded gallantry of the working prostitutes, the weary goodwill of the service providers and advocates, and the fierce, caring anger of some of the feminist voices, the women who live each day with the realities of men’s violence.

These feminist voices are compelling, but in the end, on this point, unpersuasive.

The feminists, denouncing decriminalization as a surrender to pimps and other violent men, are undeniably right about the sexism built into prostitution, and eloquently right about the need for anti-poverty and pro-woman policy reforms.

They are, however, horribly wrong about legal remedies.

Neither more of the status quo nor a Swedish-style roundup of johns is going to end the deathwatch. As long as section 213 is still in place, the law is an accomplice in the murder of prostitutes.

The murky currents of sexual prudery and neighbourhood chauvinism that combined 20 years ago to bring in the “communication” prohibitions have given predators a free hand in hunting the sex trade’s most vulnerable workers.

What is needed is repeal of all the harmful legislation that tries to criminalize adult consensual sex – especially section 213 – plus radical improvements in the social safety net and aggressive policy changes designed to weaken the forces of poverty, sexism, homophobia and racism that push some into the trade unwillingly.

The bawdyhouse provisions of 210 and 211 and the procuring and living-off-the-avails offences under 212 all need to go as well.

They stand in the way of sex trade workers making safer, cooperative arrangements with each other and with management figures they can trust, and do nothing to reduce the real harms associated with prostitution.

They also serve as a haunting danger to queer communities, an opportunity for selective enforcement and homophobic intrusion into the sexual choices of adults.

Barriere, looking to the uncertain future, is pessimistic about the likelihood of the subcommittee stripping Canada’s sex laws off the books.

“I don’t think Parliament has any desire to decriminalize sexual activity,” he says. “There is not a good climate now for change.

“If getting the most conservative reforms like same-sex marriage is so difficult, the prospects for the changes Pink Triangle supports are not good,” he continues.

“But that may be too pessimistic. Reform may or may not be possible, but in any case, we need to be there and make the case for change over and over.

“We need to keep reminding government that these issues are important to our community. We may not get the changes this time out, but our continued presence and voice calling for change is vital.”