Criminal Law Journal 5: How is the increased criminalization of women in prostitution “protecting” them?

This week we read the R v Hutt decision. Hutt is a Supreme Court of Canada (SCC) decision on appeal from the British Columbia Court of Appeal. At all three levels, there was an acquittal. The SCC affirmed the acquittal and quashed the criminal conviction. The charges were in contravention to section 195.1 of the Criminal Code. This section relates to the act of solicitation.

The issue at the SCC level was determining what constitutes an act of solicitation, which is the criminalized act or the prohibited act in question. The SCC found that the definition of solicitation referred to something more than an “intention to make herself [Hutt] available for prostitution.” The SCC defined “something more” as pressing or persistent. As a result and based on the facts, the SCC ruled that Hutt’s actions did not translate into pressing or persistent actions with an intention to make herself available for prostitution.

For this journal, I want to highlight a major issue with criminalizing prostitution related offences. At this moment, bill C-36 is proceeding through the House of Commons. Bill C-36 is in response to the Bedford decision which was also a SCC decision. The Bedford decision ruled three sections of Canada’s anti-prostitution laws as unconstitutional. However, it did not rule all sections of Canada’s anti-prostitution laws as unconstitutional. Bill C-36, which is entitled The Protection of Communities and Exploited Persons Act, is expected to pass without any changes (the bill passed with only relatively minor changes, not including changes to the communication provision).

One of the most controversial sections within the bill is the communication section. In 1985, the solicitation provisions in the Criminal Code were repealed and replaced with sections criminalizing communication for the purposes of prostitution. This change was meant to capture both clients and sex workers under the same law. However, the results reflected more of a simple change in wording as opposed to capturing both clients and sex worker as sex workers were and are primarily the ones still being targeted under the communication section. However, despite the SCC ruling this section as unconstitutional, the bill reintroduces this same communication law. The previous laws were aimed at preventing public nuisances as well as preventing the exploitation of prostitutes. The bill’s preamble recognizes prostitution as inherently exploitative and inherently violent. As reflected in the preamble, some feminists refer to prostitution as being oppressive and exploitative in nature. It may be argued then that both the previous laws and bill C-36 objectives were to prevent to the exploitation of prostitutes, minus the treatment of prostitution as a nuisance.

The discussions around prostitution remain divided. On one hand, there is one camp of feminists that argue for the complete abolition of prostitution, who sometimes call themselves “abolitionists.” On the other hand, there are some feminists that call for the complete decriminalization of prostitution. The response to the Bedford decision has brought this discussion to the forefront. “Abolitionists” argue that the most vulnerable women in prostitution are the ones who often include the ones who work on the streets, Indigenous and racialized women. These same feminists also argue that no women who enters into prostitution chooses to engage in prostitution freely, especially those who work on the streets. If women who enter into prostitution do not have the agency to choose to freely enter into prostitution, then a contradiction presents itself with this feminist analysis with reference to criminalizing prostitution in efforts to “protect” women in prostitution. This contradiction being that if prostitutes cannot choose (and thereby, not have human agency) to engage in prostitution if prostitution is defined as oppressive and exploitative, then how can prostitutes be committing a criminal act if a criminal act (the act of solicitation/communication) must entail the actus reus, which ultimately recognizes human agency and choice. It is literally repugnant to have such a law to protect women especially as one argues these laws are meant to protect them. Since it is still the same law that polices these same women at greater instances. How is the increased criminalization of women in prostitution “protecting” them?

Referring to Razack’s piece on George, she admitted Indigenous women are over-policed. She failed to acknowledge they are under-protected. In that same journal, I briefly talked about a missing and murdered Indigenous women inquiry. Positioning Hutt within this discussion, we already had a missing women inquiry for women in Vancouver’s Downtown Eastside (DTES). Hutt was arrested in Vancouver, assumingly in Vancouver’s DTES. Wally Oppal’s inquiry reports that the criminal regulation and other legal regimes, as well as colonialism and the retrenchment of social programs, contribute to the marginalization of women (page 111). Oppal also reports that this criminal regulation then contributes to the isolation and alienation of women in the sex trade. If people were really concerned about the safety of women, especially the most marginalized and vulnerable, then there at least should have been an outcry over the re-introduction of this same communication law under bill C-36 and there was none. Shameful.

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