Decriminalization of Canada’s Anti-Prostitution Laws

                On June 26, 2012, the Annual Report of the Office of the Correctional Investigator 2011-2012 was released and it is described as part of Canada’s public safety strategy by “providing external oversight and independent monitoring of the Correctional Service of Canada” (Sapers, 2012). One of the topics covered in the above Annual Report relates to Aboriginal issues. Under the report’s subheading “Diversity in Corrections,” it states that the percentage of Indigenous women in federal incarceration has increased by 85% over the last decade, and that all use of force incidents involved Indigenous women (Sapers, 2012). Though this report attempts to address the needs of Indigenous women who are already incarcerated, it does little to address how the women arrived there and what is being done to decrease the rising numbers of Indigenous women who are being criminalized. Previous to the report’s publication, a Report of the Standing Committee on 
the Status of Women was published in 2010, and it focused on violence against Indigenous women. In this report, a witness highlights that Canada’s “Criminal Code offenses related to prostitution increased the vulnerability of women in the sex trade by forcing women to work in unsafe conditions and to distrust the police” (Fry, 2010, p. 19). While some organizations support the complete decriminalization of Canada’s current anti- prostitution laws, there are some organizations that suggest this complete decriminalization will not address the violence that Indigenous women continue to experience. For example, the Native Women’s Association of Canada (NWAC) supports the decriminalization of those who sell sex but does not supports the decriminalization of buyers of sex (Native Women’s Association of Canada, 2012). Although there is no current strategy on how to approach the further incarceration of Indigenous women, I will argue for the decriminalization of Canada’s current anti-prostitution laws as a way to address this modern-day colonization of increasing numbers of Indigenous women in federal institutions. To support my argument, I will provide a critical analysis of Canada’s current anti-prostitution laws, and discuss the role this modern-day colonialism plays in subjugating Indigenous women’s bodies and sexuality.
             In Home/Land, Mary Ellen Turpel (1991) argues that the current state of Indigenous peoples “can only be fully understood by appreciating its colonial context” (p. 336) and that “the system of white patriarchy is deeply embedded in Canadian legal thought, doctrine and jurisprudence” (p. 344). Turpel’s arguments appear to support the empowerment of Indigenous women by advocating that Indigenous people’s realities are unknown to Canada’s legal system and legal thought. Unfortunately, Turpel’s arguments fall short by not openly naming the oppression that Indigenous people experience due to Canada’s colonial legal system. To put it unashamedly, this oppression experienced by Indigenous peoples is both institutional and legislated racism that has been integral to Canada’s on-going colonization. Thus, there exists a need to reframe the issues Indigenous peoples experience to capture their lived realities. In Decolonizing Methodologies, Linda T. Smith (1999) presents the concept of reframing where she describes reframing as involving “taking much greater control over the ways in which indigenous issues and social problems are discussed and handled” (p. 153). This concept of reframing can be applied to the issue of decriminalization of Canada’s current anti-prostitution laws to include the lived realities of all Indigenous women who are involved in sex work. Citing NWAC, the Native Youth Sexual Health Network (NYSHN) outlines that this reframing needs to occur where there is a consideration of the “decriminalization in the context of also stopping racism” (Yee, 2010, para. 6). Through understanding the decriminalization of Canada’s current anti-prostitution laws as also stopping racism, one can begin to understand the colonial structure of Canada’s Criminal Code.
            By examining the historical context of Canada’s current anti-prostitution laws, one must understand the effects of Othering by policy makers and its effects on Indigenous women. Smith (1999) makes this connection by outlining that the description of the Other through a colonial lens “has had very real consequences for Indigenous women” (p. 46). Some of the consequences, as outlined by Smith (1999), include the way Indigenous women are described, objectified, and represented through this colonial lens (p. 46). Often cited by Indigenous scholars are the once held prestigious political, social, and cultural roles Indigenous women occupied within their Indigenous communities before the colonization of Canada (Boyer, 2009, p. 75). In addition to occupying these prestigious roles within their Indigenous communities, Indigenous women also played a significant role with respect to the facilitation of Canada’s colonization. Boyer (2009) outlines Indigenous women’s roles were central to Canada’s fur trade era which eventually mutated to the misconceptualization of Indigenous women as being “more promiscuous in nature” (p. 77). While sexual relations between Indigenous women and white men were initially accepted, these practices were later penalized as a “social evil and a racial problem” (Boyer, 2009, p. 77). In effect, Canadian policy makers began to legislate various methods to govern Indigenous women’s bodies and sexuality.
Before the enactment of the Criminal Code of Canada (CCC) in 1892 where Canada’s current anti-prostitution laws exist, the subjugation of Indigenous women bodies and sexualities occurred via the Indian Actthrough a number of colonial tactics (Boyer, 2009, p. 78). Among the most referenced of these tactics include the forced removal of Indigenous children from their homes, or the forced sterilization of Indigenous women (Boyer, 2009, p. 74-75). The forced removal of Indigenous children from Indigenous homes and the forced sterilization of Indigenous women are intrinsically connected to Indigenous women’s bodies and sexuality since their roles as life-givers and care-givers in their communities were subjugated through these legislated acts. While these colonial tactics are barbaric, one of the most underreported colonial tactics to subjugate Indigenous women’s bodies and sexuality is the enactment of anti-prostitution laws under the Indian Act. Boyer (2009) highlights that these changes began in 1879 and proceeded with more forceful provisions in 1880, 1884, 1887, and then finally in 1892 where all sections relating to prostitution were removed from the Indian Act and enacted under the CCC (p. 78). In Canada and Migrant Sex-Work: Challenging the ‘Foreign’ in Foreign Policy, Leslie Ann Jeffrey (2005) argues in a present day context “policy decisions on prostitution, therefore, most commonly reflect concerns to construct and discipline particular identities” (p. 33). This construction of the Indigenous women’s identity as being promiscuous and later legislated and criminalized as a prostitute is an example of Canada’s colonial concerns to discipline particular identities.
Today, Indigenous women over-represent both the prison populations and the sex work populations (Bruckert and Chabot, 2010, p. 96). Yet, there is limited discussion between the two relational statistics. In Challenges: Ottawa area sex workers speak out, the authors reported that Indigenous women, either sex workers or non-sex workers, are described as over-policed and under-protected (Bruckert and Chabot, 2010, p. 97). This same pattern of over-policing/under-protection is also highlighted by NYSHN in their October 2010 press release. Following the Ontario Superior Court’s decision to rule that the parts of CCC relating to Canada’s anti-prostitution laws as unconstitutional, Jessica Yee (2010), the executive director of NYSHN, writes, “high rates of arrest and incarceration are a reality, yet there still has been no justice for the over 500 missing and murdered Indigenous women in Canada” (para. 6). One might argue that these organizations are too focused on sex-work and do not capture the lived realities of those who are exploited. Consequently, there occurs a bifurcation of the topic of the decriminalization of Canada’s current anti-prostitution laws.
As stated earlier, some organizations that advocate on behalf of Indigenous women argue that the decriminalization of Canada’s anti-prostitution laws will not address the violence that Indigenous women experience. However, the violence that Indigenous women experience is often colonial in nature. It can be argued that in Home/Land (1991) Turpel’s focus on the violence that Indigenous women experience in the privacy of their homes is adopting a colonial lens since it is often that Indigenous women experience increased violence at the hands of non-Indigenous men and that these non-Indigenous men often commit these violent acts for years without any detection by law enforcement. Two examples of non-Indigenous men committing violence against Indigenous women and inconspicuously include Robert Pickton and John Crawford (Native Women’s Association, 2002, p. 5-6).  Respectively, one specifically targeted sex workers that often included Indigenous women and the other targeted Indigenous women, but both are labeled as serial killers. Another argument that is presented by some organizations is that the decriminalization of Canada’s current anti-prostitution laws will lead to an increase in human trafficking of Indigenous women and girls. However, often ignored is how exploitation through sex work occurs as a result of the criminalization of the trade. Through her post-colonial approach to migrant sex work, Jeffrey (2005) argues “trafficking, understood as exploitation within sex-work, occurs because of ignoring sex-workers’ rights to decriminalized and safe working conditions” (p. 34). As a result, the reframing of the topic of the decriminalization of Canada’s current anti-prostitution laws needs to occur which includes the realities of Indigenous women as being both over-policed and under-protected.
In Home/Land, Turpel appears to be advocating for the empowerment of Indigenous women by arguing that there needs be a dismantling of Canada’s colonial legal system. Yet, her argument appears to adopt a colonial perspective by focusing on the Other through the context of domestic violence in the homes of Indigenous families. When in reality, the violence that goes undetected has occurred through the examples of serial killers, Pickton and Crawford, or has been legislated through the use of force incidents in federal institutions as demonstrated in the Annual Report of the Office of the Correctional Investigator 2011-2012 (2012). Accordingly, when Turpel (1991) highlights that “[Indigenous] peoples do not want to continue as wards of the federal government” (p. 343), a reframing as to how Indigenous women’s bodies and sexualities are subjugated through over-policing and under-protection via the criminalization of sex work needs to be investigated. In Call Into the Night: An Overview of Violence Against Aboriginal Women (2011), it is emphasized “women who are arrested for prostitution are rarely given diversion programs, while male consumers are often given opportunities for ‘john school’” (Fry, p. 19). Since there is an overrepresentation of Indigenous women in sex work, there needs to be an investigation in how this relates to the overrepresentation of Indigenous women in federal institutions. In other words, and as mentioned above, there is a need to reframe how Indigenous women’s bodies are being colonized, subjugated, and becoming wards of the federal government through its federal institutions in increasing numbers. Though previous barbaric attempts of assimilation and colonization of Indigenous peoples through the forced removal of Indigenous children and the forced sterilization of Indigenous women has failed, it can be seen that with the increasing populations of Indigenous women in Canada’s federal institutions that modern-day colonialism is beginning to take on a different shape.


Reference List
Boyer, Y. (2009). “First Nations Women’s Contributions to Culture and Community Through Canadian Law.” Ed. Valaskakis, Gail G.., Madelein Dion Stout, and Eric Guimond, Restoring the Balance: First Nations Women, Community and Culture (69-96). Winnipeg: University of Manitoba Press.
Bruckert, C., & Chabot, F. (2010). Challenges: Ottawa area sex workers speak out. Retrieved from <http://powerottawa.ca/POWER_Report_Challenges.pdf&gt;.
Fry, H. (2011). CALL INTO THE NIGHT: AN OVERVIEW OF VIOLENCE AGAINST ABORIGINAL WOMEN. Retrieved from <http://www.parl.gc.ca/content/hoc/Committee/403/FEWO/Reports/RP5056509/feworp14/feworp14-e.pdf&gt;.
Jeffrey, Leslie Ann. (2005). Canada and migrant sex-work: Challenging the ‘foreign’ in foreign policy. Canadian Foreign Policy 12, (1): 33-48.
Native Women’s Association of Canada. (2002). Violation of Indigenous Human Rights. Retrieved from <http://www.nwac.ca/sites/default/files/reports/ViolationsofIndigenousHumanRights.pdf&gt;.
Native Women’s Association of Canada. (2012). Understanding NWAC’s Position on Prostitution – November 2012. Retrieved from <http://www.nwac.ca/media/release/14-12-12&gt;.
Sapers, H. (2012). Annual Report of the Office of the Correctional Investigator 2011-2012. Retrieved from <http://www.oci-bec.gc.ca/rpt/annrpt/annrpt20112012-eng.aspx#sIV&gt;.
Smith, L. T. (1999). Decolonizing Methodologies: Research and Indigenous Peoples. New York: Zed Books Ltd.
Turpel, M. E. (1991). Home/Land. In T. Brettel Dawson (5th Ed.), Women, Law and Social Change: Core Readings and Current Issues (336-344). Ontario: Captus Press
Yee, J. (2010). Decriminalization of sex work and Indigenous youth and communities – a response from the Native Youth Sexual Health Network on the recent Ontario Superior Court Decision. Retrieved from <http://www.nativeyouthsexualhealth.com/oct62010.pdf&gt;.

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One thought on “Decriminalization of Canada’s Anti-Prostitution Laws

  1. Pingback: Turpel-Lafond’s Patriarchy and Paternalism | The Art of Polemics

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