Reasonable Doubt: Prostitution at the heart of women’s rights in Canada

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      In 1917, Alice Jamieson, one of only two female magistrates in the British Empire at the time, heard the case of Lizzie Cyr. Jamieson convicted Cyr of vagrancy and sentenced her to six months of hard labour. The crime of “vagrancy” was a way to regulate or criminalize prostitution. Cyr’s lawyer appealed and argued that the judgment could not stand because Jamieson, the magistrate, as a woman, was not a person.

      Jamieson was appointed a magistrate in the first place to preside over women’s court. The year before, Emily Murphy, her fellow female magistrate, had made a big stink about not being allowed to attend a trial of a woman for prostitution. She said that if prostitution cases were not acceptable for “mixed company” then the government needed to set up a court presided over by women to try other women. The government agreed and appointed Murphy as a magistrate. Jamieson’s appointment followed shortly after.

      The Alberta Supreme Court upheld Jamieson’s right to occupy her position as magistrate and her conviction of Lizzie Cyr stood. This in turn provided the platform from which Emily Murphy and her colleagues, collectively known as the Famous Five, to challenge the British North America Act, which stated that women were not persons.

      Fast-forward to today and prostitution is still at the heart of women’s rights in Canada. In 2013, the Supreme Court of Canada struck down the many of the prostitution laws because they were unconstitutional. The SCC gave the government of Canada a year to enact new constitutional laws.

      The government decided on adopting the controversial Nordic model of regulating prostitution. The theory behind the Nordic model of regulating prostitution is that all prostitutes are victims. Because these people (mostly women) selling sex are victims, the government as of December 2014 does not criminalize their activities. Instead they criminalize the market for their activities, they make it illegal to purchase sex, to communicate for the purposes of purchasing sex, and to advertise sexual services in exchange for money. They also make it illegal to profit off a person selling sexual services.

      So what’s wrong with this? Selling sex is clearly not a job many people would care to have. The new laws protect women by criminalizing men who buy sex. The only people risking jeopardy are the men who facilitate the sex trade by providing a market for it and the pimps that profit off women’s bodies, right? If you criminalize the pimps, then it means women cannot be compelled into selling their bodies for sex, right?

      Wrong. In the Bedford decision, the court acknowledges why women engage in prostitution. Some prostitutes will be people who freely choose to engage in prostitution; many, however, “have no meaningful choice but to do so. Ms. Bedford herself stated that she initially prostituted herself 'to make enough money to at least feed myself.'”

      “Whether because of financial desperation, drug addictions, mental illness, or compulsion from pimps, they often have little choice but to sell their bodies for money. Realistically, while they may retain some minimal power of choice...these are not people who can be said to be truly 'choosing' a risky line of business” (Canada [Attorney General] v. Bedford, 2013 SCC 72, para 86).

      In instituting the new laws, which recognize women as victims of prostitution, the government has not implemented new social strategies to support and assist women in poverty, facing mental health issues, addictions issues, or other issues that arise as a result of marginalization. They have disregarded the SCC's comments on why women turn to prostitution to support themselves.

      Worse, they have disregarded the SCCs comments on the unconstitutionality of the government enacting laws which make a risky profession even more unsafe and risky: “The violence of a john does not diminish the role of the state in making a prostitute more vulnerable to that violence.” The new laws, which criminalize the johns, are unlikely to finally now, in the 21st century, stamp out the oldest profession and do not protect women from violent johns.

      In Bedford, the SCC examined the various ways women protect themselves while engaging in prostitution. They determined that the safest way for women to conduct business was on an in-call basis. The law as it was before and as it still stands makes it illegal for an in-call prostitution business.

      Prior to December 2014, in order to comply with the law, women had to either take to the street (the most risky way of prostituting oneself) or operate on an out-call basis (meeting a john at a hotel room or the john’s residence). An in-call service allows women to screen clients at various stages of the process and have other people on-site or on-call to ensure their safety.

      Criminalizing johns for purchasing sex will make it more difficult for prostitutes to verify their client’s identity, which is a key safety measure in prostitution. The john bears all the legal risk in purchasing sex making it more likely that they will take steps to conceal their identity. Furthermore, it means that any street transactions for purchasing sex will likely be conducted in secluded spots where the prostitute is at greater risk.

      The new prostitution laws are somewhat reminiscent of the early 1900s when women were not persons and could be convicted of vagrancy for being out in public without a legitimate reason. There was little regard for the social reasons then as to why women engaged in prostitution and no regard for women’s right to choose what to do with their own bodies.

      Today, women are considered victims of prostitution without any regard to the social reasons for why women engage in prostitution and in complete disregard for the women, who freely choose prostitution, to choose to do what they want with their own bodies.

      For an interesting analysis on vice and women’s rights, see Vivian Namaste’s speech recorded on January 29. For more commentary on the new prostitution laws, see Vancouver criminal defence lawyer Sarah Leamon’s report on Global News.

      Laurel Dietz practices family law and criminal defence with Dogwood Law Corporation in Victoria, B.C. Reasonable Doubt appears on Straight.com on Fridays. She can be followed on Twitter at twitter.com/UnbundledLawyer. You can send your questions for the column to its writers at straight.reasonable.doubt@gmail.com. A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer.

      Comments

      14 Comments

      Edward Bernays

      Feb 20, 2015 at 1:48pm

      Are there not also many male prostitutes in Vancouver? Prostitution would seem to be about economics and primal urges rather than gender but I suppose I'm just naive.

      Anonymous

      Feb 21, 2015 at 1:10am

      There are male sex workers & trans sex workers, and there are male sex workers who only see women, tho rare.

      I appreciate the legal take on this new legislation, but am unclear as to why the clients/customers of sex workers need to be referred to by the derogatory and stigmatizing term 'john'. Language is important, and i just see no reason to further stigmatize and lead the reader into thinking about the clients/customers of sex workers as anything other than what they are: clients/customers. john is meant to give you an impression of a sneaking solitary potentially dangerous and probably disgusting creature who preys upon the (financial) desperation of women.

      Abby Rampa

      Feb 21, 2015 at 8:59am

      As a career prostitute, i find this article insightful. I also appreciate the other comment from 'Anonymous regarding the terminology of 'john' to describe a prostitutes clients. I have worked for a long time on the street, and as a call girl from the newspapers and internet. One thing, I like the street and welcomed the decision not to persecute and prosecute me from working their. As for people who say NIMBY, well how about MYOB. Surely reason will prevail and I will not have to have fear in my business. I have freely chosen to be a prostitute. Technically I am female. I was the sole supporter of my husband who was dying of emphysema for twenty years. I never drink alcohol or take any drugs.

      Sex work positive

      Feb 21, 2015 at 10:34am

      I agree that language is important.

      Which is why "sex work" should also be used over the archaic and pejorative term "prostitute".

      Melody merlot

      Feb 21, 2015 at 11:22am

      C36 poses so many problems and creates a dangerous work environment for myself and others in the industry.

      The idea that my clients are all criminals and depraved men is Infuriating.
      Since the enactment of C36 the instinces of violence against the gentleman who frequent ladies such as myself. .the new laws have paved the way for persons who would use the laws to exploit and rob gents.

      What about these guys safety? What about their rights?
      This is an issue NO ONE wants to discuss

      Abby Rampa

      Feb 21, 2015 at 12:33pm

      It makes me very sad to think that a hundred years ago someone could be imprisoned for six months, which is the ultimate oppression, the denial of freedom. And this conviction is for what?

      I am a happy career prostitute, all I ask is to be left alone.

      Brazen Lee

      Feb 21, 2015 at 3:37pm

      1. Sex Worker and Sex Work is the generally accepted term amongst sex workers, not Prostitute/tion.
      2. Lots of people DO choose this work, and more would certainly do if the stigma, shame, and criminalization were not a factor. To assert that "Selling sex is clearly not a job many people would care to have" is not based on evidence or fact.
      3. Sex Work is by no means the only job in which people engage on a survival basis.
      4. We call them "clients", not "Johns". They are like any other client, in any other industry.
      5. Sex Work is not inherently "risky". What makes it so is criminalization. It's important to always state that.

      WAY too many stereotypes here. Where are the sex worker voice, Straight?

      Matthew Morycinski

      Feb 21, 2015 at 10:08pm

      What about the needs of people who for various reasons cannot have a life partner, such as mentally handicapped people who live under care? Government's own documents state that this needs to be accommodated. They just say it's not group home employees' responsibility. Presumably then it is up to the family to arrange for a sex worker to visit. I hear some sex workers would do it as volunteers, but in all other cases, who exactly is liable?

      Abby Rampa

      Feb 22, 2015 at 11:29am

      I am a long term career prostitute. I keep hearing pros say they prefer the term sex worker. I don't get it. Secretly or not so secretly I like the term 'whore' because a 'ho' is a kin to hole and hole is a kin to holy. Holy hole ho! I do not mean to be facetious either; we are all primal beings connected to the divine and a hole is a methodology of servitude. The servitude of causing sexual pleasure. Sexual pleasure is a kin of love. What could be better than that!

      Surprise Surprise

      Feb 23, 2015 at 1:04pm

      What I would like to see is the regulation of prostitution/sex work. Set up shops in commercial or light industrial areas and have them run by the local health authority. Identification, payment and security.
      Here's my care card and visa, let's party.