Moral panic created suffocating law
Jane Li will only share the shadowy outlines of her experience as a sex worker in this country.
Li, in her 60s, is terrified of revealing any identifying details that will get her further in trouble with law enforcement. (That name isn’t real.)
A few years ago, numerous police ripped out the door to her place and piled in. Was she a sex worker, they asked. She used to be one, but not any more due to health issues. Instead, she used her meagre English skills to take phone calls for other workers who spoke no English at all, and describe the services they offered and the rates they charged. Say $50 or $60. She takes a cut — 20 to 30 per cent. Is that exploitation or mutual co-operation? Li can’t work. Her co-workers asked her to help. She has enough experience to suss out the untrustworthy and she needs sustenance.
But the moral panic around sex work-related areas has led to provisions in law that criminalize her activities. In this view, sex workers are only victims, never liberated individuals, and those around them are necessarily exploiters. Li was arrested, led out in handcuffs and eventually convicted, leading to time in prison.
She wants laws that victimize her gone. “I feel it’s so unfair,” she tells the Star. “I don’t understand. People pretend and say sex work is OK and yet they have these laws.”
Li is speaking in Mandarin, her words translated by Elene Lam, the founder of the sex-worker support network Butterfly. That network is part of an alliance of 25 groups across the country that is, along with five sex workers and a former owner of an escort agency, leading a landmark constitutional challenge to sex-work laws brought in under Stephen Harper.
The narrow perspective of the sex industry as sinister forms the basis of the Protection of Communities and Exploited Persons Act (PCEPA) of 2014 that decriminalizes directly selling sex for money, but makes purchasing it illegal.
“Advertising,” “procuring” or the purchase of someone else’s sexual services, and communicating about sexual services in public are all illegal under the Criminal Code.
If Canada treated sex work as honest work, sex workers would have a chance of redress under labour and employment laws regarding wages, workplace injury and the like.
Instead, the paternalistic attitudes driving prostitution laws, supposedly to target human trafficking, end up targeting sex workers via intensified surveillance, racial profiling, arrests and detentions — and, for migrant sex workers, deportation.
This is why on Tuesday, Day 2 of the five-day hearing at Ontario’s Superior Court of Justice, representatives of 10 rights groups urged Justice Robert Goldstein to take an intersectional approach to his analysis of current laws.
The applicants are asking that the judge take a holistic view of the historical and contemporary contexts in which the sex workers and the laws around them operate. That means considering how multiple social factors such as sex, gender, occupation, race and non-citizenship status intersect with home evictions, child-protection threats, immigration laws and lack of worker-protection rights.
In the history of Canadian immigration law, the very first ban on the grounds of race or gender specifically targeted migrant Chinese sexworker women, the court was told Tuesday by Vincent Wong, representing the Migrant Workers Alliance of Canada. But unlike the Chinese head tax implemented in the very same act, there was no subsequent parliamentary apology for this ban, or even an acknowledgment.
Without that historical reckoning, the stereotypes on which the ban was based are bleeding into contemporary practice, Wong said. Typecasting Asian migrant sex workers as “immoral, illegal, corrupting, naive and incapable of consenting to sex work influences the contemporary belief that Asian sex workers’ agency and autonomy can be easily ignored and that they need to be ‘saved’ by the police,” he said.
Acompounding set of stereotypes similarly hurt Black sex workers. Geetha Philipupillai, counsel for the Black Legal Action Centre pointed out to the court the stereotypes attached to Blackness: criminality, violence and immorality. Add to this three stereotypes in particular associated with Black women: hypersexuality, disposability and being accomplices to violence.
“For Black sex workers, anti-Black racism, sexism and transphobia operate together such that the stigmas associated with being Black are compounded with the stigmas associated with being a sex worker,” she said.
These factors, combined with the laws criminalizing communications, lead sex workers to work in private encounters and in secluded locations, which cuts out essential processes such as advance screening and terms of services.
Jane Li, for instance, uses the few words of English she knows to screen potential clients. “If I don’t think they’re good I just tell them the worker is unavailable,” she told the Star.
The Ontario Coalition of Rape Crisis Centres views the laws criminalizing communications around sex work amounting to a “sexual assault opportunity structure.”
Advance communications include “verbalizing your desires as boundary setting, as negotiation,” the coalition’s lawyer Marcus McCann told the court. “These discussions include the type of sex you want. Anything you specifically do not want. Safer sex, pregnancy prevention, condom use. It’s an opportunity to decide together.”
This inability to openly communicate further puts trans and cisgender male sex workers at risk. Adriel Weaver, representing Egale Canada and Enchante Network, told the court it displaces sex work to more remote areas. It takes the workers away from sites they know — where they have community support and where clients come specifically for their services — to areas that expose them to great risk of violence and trans-misogyny. It leaves them little time to communicate about gender identity or to screen clients for transphobia and homophobia.
These laws, together with immigration laws, lead to what Jamie Liew of the Canadian Association of Refugee Lawyers called “collateral immigration consequences”: extremely punitive consequences for sex workers who are non-citizens, leading to detentions, deportations and a ban on re-entry for anywhere from a year to a lifetime — even if there is no criminal charge laid.
Li is a citizen, but she is afraid to leave Canada for fear of being denied re-entry based on her record. Her aging mother is in China and it’s been years since Li has seen her. Li’s encounters with police have also left her feeling suicidal, she said.
Far from protection, prostitution laws have ended up creating victims. Striking them down is just the first step of a years-long battle for empowerment as the process wends its way up the court system.
Let’s at least get that first part right.
Far from protection, prostitution laws have ended up creating victims. Striking them down is just the first step of a years-long battle for empowerment as the process wends its way up the court system