Protection of Communities and Exploited Persons Act: Misogynistic Law Making in Action

On December 20, 2013 the Supreme Court of Canada overturned three of Canada’s prostitution laws in Bedford,¹ ruling that they infringed on sex workers’ security of the person rights guaranteed under the Canadian Charter of Rights and Freedoms. Valerie Scott, one of the plaintiffs, joyfully thanked the Court for declaring sex workers persons.² This could have been the moment when Canadian lawmakers listened to sex workers, attended to evidence, and introduced laws that respect the human and labour rights of all citizens, including those in the sex industry. Instead, in a perverse irony, the Protection of Communities and Exploited Persons Act came into effect on December 6, 2014—a law of questionable constitutionality³ that almost certainly increases sex workers’ vulnerability to violence.⁴

The assertion that sex work is inherently violent and exploitative is a foundational assumption of the new legal framework⁵—remove this assumption and we are left with little more then legal moralism. This forces the question: Is sex work inherently—that is, intrinsically, inevitably, and unchangeably—violent? And, if not, what are the implications of this rhetorical framing?

The justices of the Supreme Court of Canada asserted that “the violence of a john does not diminish the role of the state in making a prostitute more vulnerable to that violence.”⁶ Indeed, when we compare the rates of violence, including fatal violence, of the street level, which accounts for 5–20 percent of the sex industry, and indoor sex work, where most commercial sex occurs, we appreciate that legal, labour and social context matters⁷. Replace prostitution with any other occupation—construction, policing, taxi driving—and the statement that nothing can be done to reduce workplace risks becomes unthinkable. The response to danger at work should be, and usually is, to implement safety and security mechanisms. This is the approach New Zealand took in 2003, and sex workers report better working conditions, enhanced security, access to occupational health and safety protections, and improved relations with police.⁸ The gendered workplace violence experienced by sex workers or, for that matter, women workers in the service and health sectors, is a serious issue that needs to be addressed.⁹ To assert that sex work is inherently violent erases the need to do so. At the same time, it normalizes violence against women—if sex work is naturally violent then men must be naturally aggressive—the same (biologically grounded) logic that underpins the rape myth that “women should avoid dressing sexy in order not to be victimized.”

While the inherently violent claim does not stand up to empirical scrutiny, it does converge neatly with the ascribed “victims of sexual exploitation” master status that draws on deeply entrenched and discrediting stigmatic assumptions about sex workers; specifically, that sex workers must be under the control of a pimp, drug addicted, mentally ill, psychologically damaged, deluded (suffering from false consciousness) or, at the very least, so disadvantaged that they are incapable of conceptualizing options—otherwise, why would they continue this demeaning, destructive, and of course, inherently violent activity? Questions of consent and agency are rendered irrelevant, and we are left with incompetent subjects in need of rescue rather than rights. This framing provides a socially valorized (if disem-powered) identity for those who self-define as victims at the same time as it reifies heteronormative regulatory binaries. The policing of appropriate gender scripts played out dramatically at the Standing Committee on Justice and Human Rights hearings, where those who identified as victims (good girls) were (fittingly) praised and literally applauded for their tenacity and bravery, while sex workers (unrepentant whores—the archetypical bad girls) who spoke passionately about the harms of the laws were ignored, ridiculed, and dismissed.¹⁰ Nothing new here, whore stigma has long been used to discredit and silence women.

Sadly, a legal regime that defines sex workers as victims does not even attempt to address the deep-seated inequalities of gender, race, and class that constrain women’s personal and professional choices—constraints that are certainly implicated in individual women’s decisions vis-à-vis sex work. Instead...