Discussions about Canada’s new prostitution laws rarely involve defining who is meant by the term “sex workers.” There are sex workers who want to work in the trade, those who work in the trade out of desperation, and victims of human trafficking.
In order to have a meaningful discussion about the pros and cons of legalization, people need to distinguish between these three categories.
Human trafficking is the practice of procuring human beings against their will, typically for prostitution or labour. The general public has recently become more aware of this brutal phenomenon happening worldwide, including in North America.
Alan Young was not trying to solve the social problem of trafficking when he launched the constitutional challenge of the previous prostitution laws in Bedford v. Canada, but he believed the former laws harmed sex workers. He does not see the horrific experiences of some women in the sex trade as sufficient justification for public policy to hinder prostitutes who want to do the work.
The Bedford case resulted in the Supreme Court of Canada striking down the laws that prohibited brothels, living on the avails of the prostitution of another person, and soliciting in public for the purposes of prostitution.
Critics say no progress was made with Canada’s new prostitution legislation, which makes purchasing sex a crime, because it will also harm sex workers. But if the alternative is a legalized and regulated sex industry, Canadians should consider the harm that can result from this as well, particularly for victims of trafficking.
In Amsterdam, where the sex industry was legalized, former mayor Job Cohen later reported that organized crime increased, and studies have shown a similar story in other countries.
While human trafficking remains a crime when prostitution is legalized, police have a difficult task in determining whether or not a sex worker is being exploited. The psychology of those who are trafficked is something that people may find difficult to grasp. For example, many victims fall in love with their pimps (the Stockholm Syndrome). Others may say only what their pimps instruct them to say, for fear of being beaten or because their family members are being threatened. Questions from investigators are not an effective measure of a prostitute’s willingness to work in the trade, and law enforcement officers are severely limited if they are reliant on the testimony of a coerced victim in order to lay charges for exploitation.
Did striking down Canada’s old prostitution laws mean a safer atmosphere for prostitutes engaged in the trade out of desperation? Young argues that legalization would make sex workers safer, because they would be able to hire bodyguards or drivers and work in brothels. A sex worker engaged in prostitution out of desperation will not have money to pay for a bodyguard, and this argument does not apply to them. Moreover, evidence has suggested that it is more difficult to escape violence indoors and that third party profiteers often do not stop violence or discourage unsafe sex but rather cover up violence and encourage the more lucrative sex acts. Striking down a law prohibiting brothels or third parties from profiting off the prostitution of another person might benefit entrepreneurial prostitutes, but it also might also enable abusive pimps.
Furthermore, the line between a sex worker engaged in the trade out of desperation and a sex worker who has been trafficked can be a thin one. If a sex worker is coerced into the trade as a teenager and is later let go by that pimp but continues to work in the trade, can she be said to have voluntarily chosen the trade?
Canada’s new prostitution legislation, Bill C-36, unfortunately disregards the autonomous prostitutes who desire to pursue a legitimate career in the industry. But perhaps there is no legislative scheme that gets it right for everyone involved, and attempting to abolish prostitution while not criminalizing the prostitutes themselves means that the government is more concerned with the victims.
The debate should be about whether human trafficking and prostitution law are inexorably linked, and Canadians might need to decide if the focus of legislation should be on stopping human trafficking, assisting impoverished women, or on enabling the prostitutes who like the work. Bedford was primarily about the last. Whether Canada ultimately decides to attempt to abolish the industry or to regulate it, human trafficking is a serious issue that policymakers should not ignore.