Rising to the Challenge: Addressing the Concerns of People Working in the Sex Industry
Shaver, Frances M., Lewis, Jacqueline, Maticka-Tyndale, Eleanor, Canadian Review of Sociology
IN 2007, SEX WORKERS IN CANADA launched legal challenges in the Superior Courts of Ontario and British Columbia (BC) arguing that sections of the Canadian Criminal Code (CCC 1985) violate their Charter rights by increasing the risks they face both on and off the job and exacerbating their marginalization (Bedford, Lebovitch and Scott v. Attorney General of Canada, Court File No. 07-CV-329807PD1 and Downtown Eastside Sex Workers United Against Violence Society and Sheryl Kiselbach v. Attorney General (Canada), 2008 BCSC 1726.). Three years later the Superior Court of Ontario upheld the plaintiffs' claim in Bedford and colleagues and ruled that the laws prohibiting communicating for the purpose of prostitution, running a bawdy house, and living on the avails of prostitution were unconstitutional because they substantially increase the risk of harm to people working in the sex industry (PWSI). (1,2) The BC challenge--originally quashed by the Superior Court (3)--is now moving forward. In October 2010, the BC Court of Appeal overturned the original ruling, paving the way for a hearing in the BC Superior Court.
These rulings have brought heightened public attention to factors that endanger the safety and lives of sex workers. They also reinforce the extent to which the health and well-being of PWSI is a complex interaction of legal, political, and social issues. Consequently, any analysis of the health and safety concerns of sex workers must be sophisticated enough to address this complexity as well as the necessity for policy that is multisectorial. The definition of health by the World Health Organization (WHO, 1948) provides this complexity:
[Health is] a state of complete physical, social and mental well-being, and not merely the absence of disease or infirmity. [...] The enjoyment of the highest attainable standard of health [is] a fundamental right of every human being. (P. 100)
Using this definition, and evidence drawn from studies of sex work we have conducted separately and jointly since the early 1990s in Montreal, Ottawa, Toronto, and numerous smaller cities in southwestern Ontario, (4) we examine three domains related to worker health and safety: risks to occupational health and safety (OHS), negative perceptions of and behaviors toward workers, and limited access to essential services. Analyzing our interviews with PWSI and key informants, we identify the risks posed to workers in each of these three domains and how they are exacerbated by the Criminal Code provisions. Our analysis also considers what is required beyond decriminalization to improve the overall health and well-being of sex workers. Based on these results, we conclude that placing sex work in a harm reduction/labor rights framework--as has been done in New Zealand (NZ)--will contribute to our ability to address issues related to the physical, social, and mental well-being as well as rights of PWSI.
Although our primary focus is not on the legal framework, the complex interaction between the health and safety of PWSI and the legal status of sex work necessitates a brief overview at the relevant provisions in the CCC. The exchange of sex for money does not violate the CCC; however, key activities associated with this exchange violate several provisions of the Code. Briefly stated, these include: keeping or being found in a common bawdy house (s. 210), providing directions to or transporting someone to a bawdy house (s. 211), procuring or living on the avails of prostitution (s. 212), communication in a public place for the purpose of prostitution (s. 213), and purchasing sexual services from someone under 18 years of age (s. 212(4)). Some forms of sex work are also affected by sections dealing with obscenity (s. 163), engaging in an immoral theatrical performance (s. 167), performing an indecent act in a public place (s. 173), and public nudity (s. 174). Of note is that the terminology within these sections of the CCC (e. …