On June 6, 2014, the then-Conservative government introduced Bill C-36, Protection for Communities and Exploited Persons Act (PCEPA). The PCEPA was in response to Supreme Court’s decision to strike down three Criminal Code provisions relating to prostitution. The Court gave the federal government a year to respond to the decision to strike down these provisions for violating sex workers’ right to life, liberty and security of person.
Then, on July 7, 2014, just a month later, the PCEPA passed its second reading and it reached the committee stage in the legislative process. On that same day, I was set to represent the Canadian Alliance for Sex Work Law Reform with my colleague. Our (what they call panels/meetings) began just after lunch. We had each five minutes to speak and then respond to questions. Bob Dechert, former Conservative Member of Parliament for Mississauga-Erindale, Ontario, asked the women (including myself) with experience selling/trading sex about what age they started working, asked some other questions related to youth in the sex trade, and then proceeded to ask me about choice.
Dechert looked to me and asked, “Ms. Sayers, you mentioned that a lot of Indigenous women rely on the sex industry to get the money they need to survive. Is that a free choice? Do they freely choose to do this, or if they had a free choice to do something, would they do something else?”
In the sex work is work/prostitution is inherently violent debate, the focus remains on choice. Angela Campbell, in her book titled Sister Wives, Surrogates and Sex Workers: Outlaws by Choice?, explores the concept of choice within three case studies examining research on polygamy, surrogacy and sex work within three jurisdictions (Australia, United Kingdom and Canada). To help guide her analysis in later chapters, Campbell provides a framework where she distinguishes choice from other concepts like consent. Campbell also associates “making a choice” with “giving consent” and sees the two as “actions.”  Choice may involve “consent-giving” but sometimes consent can be absent when making a choice. Thus, choice involves a process beyond concepts like consent and this elongated choice-making process looks past individual choices into larger structures “that may operate to shape [a woman’s] decision.” Campbell seeks to advance discussions on the concept of choice by looking at the history of juridical responses to women’s choice.
Laying out the foundation for her subsequent chapters, Campbell first explores juridical responses to domestic violence, domestic work and domestic contracts. Then, she examines the limitations and challenges to choice regarding these intimate topics to both contrast and compare the upcoming case studies in chapters two, three and four. While Campbell acknowledges the problem with choice, she asserts that “choice should remain fundamental to feminist discourse and theory, particularly for assessing the legal implications of morally ambiguous decisions made in the face of severe constraints.” Campbell critiques existing feminist discourse on choice as failing to “engage with particular formal state law and policy instruments that seek to govern women’s tough choices, nor do they seek to identify the informal governance tools that do not emanate form the state, such as family, labour and community norms, with which women engage when making such choices.” Specifically, current feminist discourse does not provide an adequate framework for jurists or does not considers internal structures which belong to communities that are the focus of feminist discourses or theory. I disagree especially if one chooses to ignore Indigenous feminist theories and discourses, or Indigenous communities altogether. At this point, Campbell reveals the limitation of the entire framework for the rest of the book. Although Campbell only acknowledges dominate feminist discourse and theories within her framework, I do not want to simply reject her entire book as problematic and simplistic, similar to her framework on choice. Except, however, I disagree that we, as feminists, should focus on choice.
Next, Campbell outlines the essence of her subsequent inquiry which “develops a framework for the analysis of choice through a legal lens.” Campbell develops a framework which includes three “lines of investigation” These three “lines of investigation” include the following:
- Examining “the presumptions on which state laws rest”
- Examining “state law’s interaction with non-state normative forces”
- Examining “state law’s effects on women’s options and decisions”
These three lines of investigation guide Campbell’s analysis throughout her case study on polygamy, surrogacy and sex work in three separate jurisdictions (Canada, United Kingdom and Australia). Campbell chooses to look at domestic violence, domestic work and domestic contracts at the outset to “focus on the issue of choice, without the distraction and complication that might be triggered by introducing at this point the complex legal and social issues associated with polygamy, surrogacy and sex work.” Campbell proceeds to discuss domestic violence, domestic work and domestic contracts, the juridical responses to same, while framing choice as a “fundamental concept for feminism.” When Campbell discusses domestic violence, domestic work and domestic contracts while framing choice as a fundamental concept for feminism, it reads more like a summary of the topics, a summary of the juridical responses to the topics, and a summary of the feminist debates/discourse surrounding the topics. As I said, I do not agree that feminism should focus on choice as a fundamental concept.
When feminism begins to focus on choice, it runs the risk of creating piecemeal theories and discourses which inform juridical responses and thus, potentially erasing or ignoring the experiences of women significantly impacted by state responses regulating women’s choice. Though this is a sharp position to take, I position these statements in the context of my own experiences, especially when former MP Bob Dechert asked me about my choice or the choice of Indigenous women to enter into the sex trade. The rest of the chapters, which are central to Campbell’s case study of polygamy, surrogacy and sex work, continuing on this same pathway: they read more like a summary. As such, I will not go into a detailed examination of each case study. I will, however, examine Campbell’s limitations of chapter four which focuses on sex work.
Again, this entire book reads as a summary of the feminist debate surrounding women’s choices relating to polygamy, surrogacy and sex work. I would suggest that Campbell’s book is more suited for a class focused on introducing students to feminist theorizing or feminist discourse. I make this suggestion based on the fact that Campbell does not undertake, at any point in the book, a detailed analysis of the topics mentioned, especially how some juridical responses affect certain kinds of women at disproportionate rates. For instance, throughout the case study chapters, there is only brief mention of migrant women, colonialism, or Indigenous peoples. In her sex work chapter, she completely ignores the history of criminalizing Indigenous bodies, especially Indigenous women, via the Indian Act, where one of the bawdy house provisions first appeared in Canada.
Additionally, in her sex work chapter, Campbell acknowledges the limitations with the term sex work, which is more of an umbrella term. As such, her analysis solely examines prostitution-related cases. She assumes the “sex work is work” debate in her case study and there are limitations with this assumption because not all women who engage in the selling of sex view trading or selling sex as work in its conventional form, even if they support decriminalization of sex work. Campbell also misses an opportunity to advance discussions around consent, especially for Indigenous women in the trade.
In chapter four, we have the sex work is work debate on one hand and on the other hand, we have prostitution is inherently violent debate. If we position these debates within the concept of consent without going into the merits or validity of either side of the sex work debate, the discussion highlights the issues with both sides: do some women consent to work in criminalized environments or do some women consent to work in an environment that is inherently violent? If we assume that a woman in neither position can consent to working in a criminalized environment or to working an environment viewed as inherently violent, then we recognize how choice becomes a problem when we focus on choice as a fundamental concept in feminism. I may appear to be agreeing with Campbell when she says that consent is different than choice. However, I want to highlight the problems with focusing on choice: the confusion with consent, which is a point Campbell makes at the outset.
Without being too obvious, there are huge issues with how current laws take up consent, and not only in the case studies Campbell presents (ie, sexual assault law, law relating to human trafficking cases). There is an opportunity to advance the discussion around consent, especially within a legal context. Because, at the end of the day, when it comes to juridical responses to topics like polygamy, surrogacy or sex work, it will matter when juridical responses take up certain women’s experiences (like exercising choice) while ignoring others. Besides, as feminists, we can all agree that juridical responses to consent are already problematic, and as feminists, the focus should be on improving existing juridical responses—consent is a pre-existing concept both in feminist and legal discourse. Why should feminism theories and discourses re-create the wheel when it comes to juridical responses to women’s lives?
Nevertheless, relying on choice as a fundamental concept in a legal context potentially has the same limitations choice as a fundamental concept in feminism creates when juridical responses only focus on some women’s choices in some contexts. Campbell also highlights these limitations (and opportunities) for juridical responses to respond to women’s choices in her case studies in chapters two, three and four. Other concepts that appear throughout Campbell’s case studies in chapter two, three and four include concepts like agency and stigma. In her case study chapters, I appreciate the discussion on non-state normative forces which influence women’s choices.
In the end, Campbell’s book is an easy read. It is also a much welcomed text to the feminist debate surrounding contentious topics. So, Campbell is right when she says that choice “often divides feminists.” Still, in my opinion, I think that feminists need to move beyond the choice debate.
When former MP Bob Dechert asked me about my choice or the choice of Indigenous women to enter the sex trade, it did not come with surprise. As an Indigenous woman who advocates for the decriminalization of the sex trade, dominant feminist theories and discourses views me—an Indigenous woman—both as incapable of making a choice and invisible in the choice debate. Either I am experiencing false consciousness by supporting the right to work safely; I am “not representative”; or that I am part of the small minority. This focus on choice angers me.
In our exchange at the PCEPA committee meeting, Bob Dechert responded to my anger with condescension, “But I have chosen from a number of things available to earn a living. If this is the only way for them to survive, is it really a free choice? That’s my question.” To which I responded, “’Choice’ and ‘free’ are such value-laden terms. To say that somebody has a choice is speaking from a privileged position.”
When feminism focuses on choice as a fundamental concept, even in a legal context, it still speaks from a privilege positioned. Feminism that focuses on choice exists outside the choices women make on the daily, including the privilege of being free from the implications of such choices and when a feminism has that privilege, they do not have the privilege to focus on women’s choices as a fundamental concept.
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