The Ontario Court of Appeal is due to release its decision on the constitutionality of Canada’s criminal laws around adult prostitution. Last year, the Ontario Superior Court of Justice struck down these laws, finding that they significantly contribute to danger for sex workers. If the current laws are unconstitutional, what comes next for the regulation of prostitution in Canada?
Conservative MP Joy Smith has one answer: more criminal law. Smith’s campaign to criminalize the purchase of sexual services reflects a crusade by conservatives, evangelical Christians and some feminist organizations to import Swedish prostitution laws to Canada. These laws decriminalize sex workers while criminalizing purchasers (clients). The purchase of sexual services is not currently illegal in Canada. The Swedish model aims to eliminate the sex industry by “ending demand” for prostitution. In this imaginary scenario, criminal sanctions will eliminate clientele for commercial sex and thereby end sexual exploitation.
Measured on its own terms, the Swedish model has proven ineffective and harmful. In Sweden and other Nordic countries that have adopted such legislation, prostitution has not been eliminated, only reshuffled. Sociological research in Sweden has shown a significant shift from street-based to online sexual advertising since the law was adopted in 1999.
What did these laws accomplish? They made sex work more dangerous. In recent research from the University of Leiden, Swedish sex workers report having to rely more on third parties (agents, pimps or helpers) because clients are nervous about direct contact with workers. Street-based workers report having to work in more isolated areas and to rush transactions, increasing their danger.
If Canada adopts the Swedish model, we can expect a disproportionately negative impact on street-based sex workers, the most vulnerable workers in the sex industry. Since the mid-1980s, street-based transactions have accounted for the lion’s share of prostitution-related charges in Canada. As many urban areas face the pressures of gentrification, street-based sex workers and their clients, homeless persons, and street-based drug users and sellers become common targets of police sweeps. “Not in my backyard” campaigns result in street-based sex workers and their clients being much more heavily policed than indoor sex workers. Criminalizing purchasers of sexual services would force street-based workers to continue to resort to furtive and isolated transactions with clients who are seeking to avoid arrest.
And herein lies the hypocrisy of the prohibitionist campaign. Advocates of “ending demand” claim the moral high ground by asserting that their efforts to eliminate commercial sex are motivated by a desire to end sexual exploitation and to protect women. But the evidence suggests that the Swedish approach in fact increases dangers for a significant proportion of these women.
Prohibitionists calling for the adoption of the Swedish model reduce all sex workers to victims and all clients to perpetrators. They gloss over a diverse industry that includes independent home-based sex workers, street-based survival sex workers and male and female escorts. This is inconsistent with the diverse experiences of Canadian sex workers, some of whom feel exploited while others do not.
Coercion and exploitation in markets is not unique to sex work. Yet in no other service industry are concerns about exploitation met with proposals to outlaw demand. The commercial sex industry is singled out because it is still subject to moral disdain and stigma. This moralism and stigma costs lives.
We all want to end exploitation and coercion in the sex industry and to address the social conditions that leave some women and men with few choices other than to engage in sex work. But continuing the failed and misguided experiment of criminalization is not the answer.
Let us instead support the efforts of Canadian sex workers to fully decriminalize the adult sex industry and secure safer working conditions. In order to end exploitation and coercion in the sex industry, we should focus on social and legal reforms that will make a meaningful difference for all vulnerable workers: labour and employment protections, increased social assistance rates, affordable housing and child-care programs, accessible mental health and substance abuse treatment, immigration protections for migrant workers, and ongoing resistance to sexism, racism and other forms of oppression. Evidence-based policies, not ideological reactions, will address the real harms to workers in and beyond the sex industry.
If we identified the underlying social and economic causes of vulnerability and exploitation, we may be inspired to undertake far more transformative measures than the doomed criminal law project of “end demand.”
Lisa M. Kelly, a Trudeau Scholar, is a doctoral candidate at Harvard Law School and a Fellow in the International Reproductive and Sexual Health Law Program at the University of Toronto’s Faculty of Law.
Katrina Pacey is litigation director at Pivot Legal Society in Vancouver and counsel in the constitutional challenge to prostitution laws currently underway in British Columbia.
On Oct. 20, the International Reproductive and Sexual Health Law Program at the University of Toronto’s Faculty of Law will host an afternoon panel discussion on “The Myths of ‘Ending Demand’ for Prostitution.”