- Sister Wives, Surrogates and Sex Workers: Outlaws by Choice? by Angela Campbell
At the hearing of Bedford v Canada, the case that resulted in the striking down of Canada’s criminal laws on prostitution, an important exchange took place between counsel for the Attorney General of Canada and a Supreme Court of Canada justice.1 The government’s main argument was that the criminalization of activities associated with prostitution does not engage constitutional protection because sex workers exercise choice when they engage in the sex trade. A constitutional violation cannot arise from such a voluntary situation, the government submitted. Sex workers did not need a constitutional remedy—all they needed was to choose differently. Justice Rothstein interjected from the bench, countering that some women “don’t have choice” for reasons stemming from social background and their manner of entry into the sex trade. The government added nuance to its position in response, admitting that prostitution takes place on a spectrum and that some points on that spectrum represent “profoundly constrained” choice. The criminalization of prostitution was still justified, the government argued, so as to prevent sex workers from engaging in a harmful activity that was contrary to their best interests.
Choice talk is often at the core of state responses to women engaged in controversial work and activities, and it often appears in a form that neglects both the complexities of individual agency and the effects of repressive state responses. This is the central claim in Angela Campbell’s very fine book, Sister Wives, Surrogates and Sex Workers. Campbell takes on a central, entrenched problem in both feminism and legal regulation: how to understand and respond to women living socially contested lifestyles. Feminist theory has long debated how to respect female agency while acknowledging the burdens that constrain choice.2 Campbell analyzes this question in the specific contexts of polygamy, paid surrogacy, and [End Page 676] prostitution in each of Canada, the United Kingdom, and Australia. As the book reveals, those who advocate criminalization in these areas are often concerned with how coercion and patriarchy force women into these practices. Any realistic view accepts that full abolition is unlikely to follow from prohibition, but voices favouring criminalization often argue that prohibition serves an important expressive function.
Campbell’s contribution is twofold: she generates a more nuanced portrait of the factors that govern choice in these domains, and she reports concrete empirical data on the effects of specific models of criminalization. In many instances, state interventions officially aimed at protecting women from perceived failures of self-interest do more harm than good. Marginalization, to the extent it exists, is often deepened by penal regulation.
The book was published before the final appeal in Bedford was argued and decided, but it does a great deal to deepen our understanding of both the arguments advanced in the litigation and the legislative response to the Court’s decision. In sex work and beyond, Campbell shows how state approaches to socially contested practices often set up an “incoherent binary” with respect to women’s choices and then proceed to legislate on the basis of that false portrait.3
Victim or Agent
Campbell chronicles how women engaged in socially contested lifestyles are often constructed either as passive victims (in need of state protection) or as fully independent agents (worthy of state punishment). The result is legal regulation that fails to recognize and respond adequately to the messy lives of actual legal subjects. Campbell writes: “Women are at once understood as weakened and victimized by the oppressive and sometimes violent forces that surround them, while also morally depraved and indifferent, and worthy of punishment. Capacity for choice is either denied, or potentially recriminatory.”4
Exactly this conundrum explains the recent history of prostitution in Canada. During the courtroom exchange described above and, indeed, during much of the Bedford hearing, sounds of discontent spread through the gallery where I was seated among sex workers and their allies. Sex workers knew, of course, that the specter of the “choiceless” prostitute signalled the possibility of victory because...