Today was such an important day for the sex work community. If you didn’t know what happened today with respect to Canada’s anti-prostitution laws, then I feel really bad for you. You missed out on history making!
Earlier today (approximately 9:45am) the Supreme Court of Canada (SCC) delivered their decision relating to what the media and others refer to as the “Bedford Case” or more correctly, Attorney General of Canada v. Terri Jean Bedford, Amy Lebovitch, and Valerie Scott. You can read the entire decision or you can read this succinct piece by PIVOT. I recommend the PIVOT article if you only have a few moments but if you have some time, read or glance over the entire decision.
The specific sections in the Criminal Code of Canada that were challenged included Section 210, 212(1)(i), and 213(1)(c). Section 210 is commonly referred to as the bawdy-house law and it states that it is criminal for anyone to “own, operate, or even be in a bawdy house.” Section 212(1)(i) is sometime referred to as the living on the avails law and it states that it is criminal for someone to benefit from the sexual labour of another. Section 213(1)(c) is referred to as the communication law in layman terms and it stresses that communicating with anyone for the purposes of prostitution in a public place is criminal.
All three laws were struck down as unconstitutional. This is a big win for the sex work community because this isn’t the first time they fought against these laws. Many thought that the case would be decided the same way it had be in the 90s. While others thought that the SCC would reaffirm the Ontario Court of Appeal decision which stated that section 210 and 212 were unconstitutional but section 213 was attaining its legislative objective (albeit in a grossly disproportionate manner). This is a big win because it says that sex work and sex workers matter. It says that sex work and sex workers are persons in the community and their safety and security is just as important as non-sex workers. Because, surprise! Sex workers are people too! This decision also was unanimous meaning 9-0 (and there are 9 SCC Justices) agreed. Tres fuckin cool!
It was a whirlwind of feelings for me. Also, a lot of people have been sharing my blog post entitled “Exploration on Indigenous Lands and Exploitation of Indigenous Bodies.” Take some time to read that too! But I talk about it briefly below.
In this blog post, I talk about the history of the common bawdy house laws (and how our prostitution laws came to be). What is unfamiliar to people who know very little about sex work or Canada’s anti-prostitution laws is that the original laws were first enacted under the Indian Act. Does this mean that Indigenous women and girls were overly sexual beings? Not necessarily. I mean, we did have sex and we were sexual. However, the social construction of the prostitute can be traced back to colonialism. This is not to say that we should get rid of prostitution because this, for some people, this is their livelihood. But hellooooo, we should get rid of colonialism!
To expand on this a bit…certain relations were encouraged for economic, political, and social reasons, namely relations between settlers and Indigenous women (Mawani, 2001). However, as more white people, including white women, arrived in Canada, relations with Indigenous women were no longer seen as desirable. In fact, Indigenous women were seen as a threat to whiteness (or more correctly, a threat to Canada). Then with the Confederation of Canada, the Indian Act was enacted. Following the enactment of the Indian Act, there were several sections relating to prostitution that were included (Boyer, 2009). One of these sections include the bawdy house section. The original bawdy-house law only targeted Indigenous homes or wigwams, and by the very definition of wigwams, it assumed wigwams were disorderly (Boyer, 2009). These sections only targeted Indigenous people as a group. Further, by the very definition of prostitute in this legislation, it assumed all Indigenous women were prostitutes (Mawani, 2001). Then, by 1892, the Criminal Code of Canada was enacted, and all sections pertaining to prostitution were removed from the Indian Act and placed in the Criminal Code of Canada (CCC)(Boyer, 2009). By moving the prostitution sections from the Indian Act to the CCC, it facilitated the transition of prostitution as socially unacceptable to both criminally and socially wrong. The transition of prostitution to being criminal wrong also reduced the status of those who engaged in the trade even further.
When we begin to look into the history of these laws and how they came to be, we can begin to understand how they truly affect the social and the bodies within the social. We live in a colonial state, and the goal of the colonial state is to get rid of the Indian Problem. Indigenous bodies were only useful insofar they did not interfere with the colonial agenda: to dominate and control Indigenous lands. Once these bodies began to interfere with the colonial agenda, not only do Indigenous lands have to be dominated and controlled, but now the bodies must be dominated and controlled. What is the way to dominate and control Indigenous bodies? Just take a look at the stats for missing and murdered Indigenous women or the increasing numbers of Indigenous peoples in prison. And let me be clear here, constructing Indigenous people as a threat to Canada has not changed. Just take a look at the aggressive policing tactics when it comes to economic exploitation of their lands. Elsipogtog anyone?
So what do I think of Bedford? I am ecstatic! It is a fight against the colonial state and they lost. Some people are crying out against this decision because they assume it will lead to more exploitation, like human trafficking. Human trafficking isn’t sex work and sex work isn’t human trafficking. Also, some argue that prostitution is inherently violent because all prostitution is rape. No. All prostitution is not rape because all rapes are not prostitution. Besides, that trivializes actual real rapes. Yes, victimization happens but that doesn’t mean that there isn’t help for those who need it. There are tons of organizations dedicated to helping victims–let their work continue but let’s not place others in more risk to experience violence because others believe that sex work is inherently violent (because it’s not) or degrading (also…because it’s not). Much of the exploitation or violence that occurs is because of the social construction of the prostitute as a social problem, a social evil. So, let’s a have a discussion about whorephobia while we are it! We need to make sure that we don’t take steps backwards by silencing those that will be affected most by these laws if and when the government steps in to write new laws that will affect the trade, the sex workers and the sex work community. Nothing without the sex work community!
References (not included in post links)
Mawani, R. (2001). “The ‘Savage Indian’ and the ‘Foreign Plague’: Mapping Racial Categories and Legal Geographies of Race in British Columbia, 1871-1925.” (PhD thesis). Retrieved from http://www.collectionscanada.ca/obj/s4/f2/dsk3/ftp04/NQ58938.pdf.
Boyer, Y. (2009). “First Nations Women’s Contributions to Culture and Community through Canadian Law.” In G. G. Valaskakis, M. Dion Stout & E. Guimond (Eds.), Restoring the Balance: First Nations Women, Community, and Culture (69-96). Winnipeg, MB: University of Manitoba Press.