Opinion: The Decriminalization of Sex Work as a Human Rights Approach

This article was updated on May 26th at 5:30 pm. An earlier version of this article was imprecise in describing PCEPA as legislation that decriminalized the act of sex work itself and defining decriminalization as a harm reduction approach. In fact, the act insulates sex workers from criminal charges but does not decriminalize sex work. The MJPS Online has revised the article to better capture the nuance of the law and the role of decriminalization as a human rights approach

This opinion piece is part of a broader, week-long MJPS Online series in collaboration with IRSAM’s delegation to the United Nations. Click here for other components of the series. The views expressed in this piece are solely those of the author and do not reflect the position of the McGill Journal of Political Studies, or the Political Science Students’ Association.

On December 6, 2014, Canada implemented legislation outlined in Bill C-36, the Protection of Communities and Exploited Persons Act (PCEPA). Following in the footsteps of Sweden’s Nordic model, the legislation was intended to protect sex workers by ending the demand for sex work. PCEPA banned the purchase of sexual services, the advertising of sexual services, and working inside of a house or an apartment. While the stated objective of PCEPA is to “protect those who sell their own sexual services”, placing the criminal burden on third parties and those demanding sex work continues to create grave risks.

The initial aim of the Nordic model – and by association, PCEPA – was to reduce sex trafficking, which has historically been conflated with sex work. Sex work is a term used to describe the consensual exchange of sexual services for monetary compensation whereas sex trafficking implies the manipulation, transportation, and exploitation of a human for sexual purposes. Despite efforts made by radical feminists and the religious right to conflate these issues, sex work and sex trafficking are separate matters, and equating them harms both victims of sex trafficking and the sex worker community.

Those who advocate for the Nordic model typically assert that sex workers are oppressed by the work and thus, by decreasing demand, the threat of danger is decreased. In reality, this model has proven itself to further victimize sex workers by putting pressure on sex workers to protect clients and outlawing pre-existing security measures. For instance, prior to PCEPA, sex workers could work alongside each other or third parties to ensure maximum safety.

With new legislation came fear within client communities. Some sex workers had worked years to grow and build trusting relationships with their clients. New clients were more afraid of persecution than ever, and required increased discretion and accelerated pace of engagement. This makes it more difficult for sex workers to screen clients for possible risks, such as previous violent encounters or sexually transmitted infections (STIs) and human immunodeficiency virus (HIV), before engaging.

Studies have shown that sex workers have been less likely to access health and support services since the introduction of PCEPA, and that condom usage has decreased. Violence against sex workers is still rampant, indicating that the stated goal of the legislation is not being achieved. A 2011 Canadian review of Swedish publications also found that Swedish sex workers reported feeling increasingly isolated, observed heightened police aggression, experienced elevated violence and rampant stigmatization of those in the sex industry.

Recently, the death of 22-year-old Marylene Levesque caught the media’s attention. Sex worker rights organizations used the opportunity to, once again, reject the legislation and speak out about its hypocrisies.

Street workers and individuals that meet clients at external locations, like Marylene, are the most at risk, as a result of police intervention and unaccompanied working conditions. PCEPA has only pushed more sex workers onto the streets by making it impossible to advertise services and have clients come to them. Sex workers maintain that the Nordic model puts them in more danger than criminalization.

Sex workers and sex worker rights organizations have spoken out about the harm caused by the redesigned legislation. UNAIDS, the World Health Organization, and Canadian sex worker rights organizations, such as Maggies and Stella, advocate for the decriminalization of sex work. Decriminalization would mean that sex work, in every capacity, would cease to be illegal.

Decriminalization ensures that legislation that prohibits the selling, buying and procurement of sex work would be removed. This is encouraged instead of legalization because it promotes anonymity and autonomy of sex workers who wish to work in the field, but on their own terms.

HIV, which has shown to be more destructive within oppressed communities, such as the trans community and the sex industry (which overlap significantly), would be reduced by the decriminalization of sex work. This is because decriminalization, along with de-stigmatization tactics, would reduce negative perception of sex work, and thus violence, and would implement opportunities for greater transparency and access to sexual health services.

Sex worker rights organizations argue that the changes to the legislation would benefit sex workers by reducing the fear of arrest, police brutality, and general violence. Additionally, it would allow for safer working environments, more accountability of clients, accessible physical/mental healthcare, and the ability to unionize.

New Zealand is a prime example of a jurisdiction that supports the benefits of decriminalization. In 2003, New Zealand enacted the Prostitution Reform Act to improve sex worker health and safety. New Zealand’s 2008 impact report interviewed 1000 sex workers across four segments and determined that two-thirds of respondents felt there had been an improvement in some aspects of health for sex workers. The most observable impact was an improved sense of well-being, attributed to new rights and to a decrease in stigma.

Additionally, 87% of New Zealand sex workers reported seeing a regular doctor for sexual and physical health purposes. Furthermore, there have been positive impacts observed between sex workers and police, resulting in fewer violent encounters. Approximately two-thirds of participants, who had been sex workers prior to decriminalization, reported that it was easier to refuse to have sex with a client after the law changed. Sex workers agreed that it had become easier to report violence to police, and 70% of sex workers, under the new legislation, indicated that they would report violence, were it to occur. In certain regions, police were to become recognized as protectors, rather than prosecutors.

New Zealand police were engaged in sensitization workshops to educate about sex work stigma and realities. These harm reduction efforts were all led by grass roots organizations and sex workers themselves, with the intention of making them accessible and secure.

The implementation of de-stigmatization efforts, such as those achieved in New Zealand, would also help to protect and empower Canadian sex workers.

In India, the Sonagachi Project, started by public health scientists in Calcutta, focuses on STI/HIV intervention by creating sex worker empowerment programs. These programs address environmental barriers and promote structural changes; these have been shown to decrease STI/HIV in Calcutta to beneath other Indian cities, despite being one of Asia’s biggest red-light districts.

The Sonagachi Project has been successful, in part, because it recognizes the dangers that sex workers face at the hands of cultural and societal stigma, and it brings sex workers into the discussions as well. Similarly, New Zealand adopted de-stigmatizing efforts by prioritizing consultation with sex workers when moving toward decriminalization policy. Its method utilized drop-in centres and outreach services for support, advocacy, and counselling, as well as providing sexual and physical health services.

Reports, statistics and case studies provide evidence that the decriminalization of sex work, paired with de-stigmatization efforts may result in the best outcomes for sex workers worldwide. It’s time for Canada to address the issues of PCEPA and other neo-abolitionist rhetoric, in order to protect those in danger at the hands of the law.

Photo by Sabrina Gill