Often when we discuss sex workers’ rights, the focus is always on the human rights of sex workers, who include only adult sex workers. And, to be an adult sex worker depends on the jurisdiction the adult sex worker lives and works in. For instance, in Canada, the Criminal Code dictates the age of consent is 18 years when “the sexual activity ‘exploits’ the young person.” Generally, this means when the sexual activity involves prostitution, then the courts will consider the “nature and the circumstances of the relationship” between the young person and the person. Such nature and circumstances include:
- the age of the young person;
- the age difference between the person and the young person;
- the evolution of the relationship; and
- the degree of control or influence by the person over the young person.
But what about the rights of young people in the sex trade, including those who may be 18 years old (or yes, even younger like outlined in the case described below)?
When Amnesty International released its policy calling on governments worldwide to support the human rights of sex workers from a safety perspective informed by evidence coming directly from sex workers’ rights and related organizations, it was and it is clear that the policy fails to address the harms that criminalization of young people, especially through the criminalization of sex work and other related laws.
Throughout its policy, AI continuously emphasizes the term “consensual sex work” as if the phrase “sex work” on its own is non-consensual. AI also highlights the need to continue to fight against child sexual exploitation and human trafficking. AI writes in a post summarizing their policy position,
The policy reinforces Amnesty International’s position that forced labour, child sexual exploitation and human trafficking are abhorrent human rights abuses requiring concerted action and which, under international law, must be criminalized in every country.
Yet, in 1999, the Calgary Police “apprehended” (para 13) two 17-year-old young women and were “conveyed by police to a ‘protective safehouse.’” (para 14). The young women brought an application to challenge the constitutionality of the Protection of Children Involved in Prostitution Act (now called Protection of Sexually Exploited Children Act). The young women challenged the Act because the Act did not afford children (i.e., the young women) who were “apprehended” (i.e., arrested and criminalized) and “conveyed” (i.e., trafficked by the state) to so-called safehouses procedural protections in accordance with the principles of fundamental justice (paras 43-48).
Specifically, the young women claimed the Act violated their Section 7, 8, 9, 10 and 15 Charter rights. Justice Jordan agreed that the “offending provisions” violated the s 7, 8 and 9 of the Charter and these violations were not saved by section 1 (Oakes analysis).
The Director of Child Welfare did not advance evidence to address section 1 (para 118). In fact, the position advanced by the witness for the Director of Child Welfare was that the “hundreds of apprehensions” is evidence of the Act “achieving its stated goal of protecting children” (para 37). So, more arrests and apprehensions equal GOOD! GREAT!
While this decision was overturned by a higher court and the Alberta government later amended the Act “after significant Charter compliance scrutiny on the part of the government”, we can learn a lot about the agency of young people who are captured by these laws that criminalize the sex trade in laws existing outside the Criminal Code, especially through these young women’s application to challenge the constitutional of said Act. We can also learn a lot about the explicit goals of similar Acts and evidence to support those goals of these Acts. Does anyone see the parallel in the names of Canada’s recent anti-prostitution provisions, Protection of the Communities and Exploited Persons Act with Protection of Children Involved in Prostitution Act (now called Protection of Sexually Exploited Children Act)?
In the fight to decriminalize sex work, the focus should not be on whether one is adult enough based on some arbitrary number imposed on young people’s lives by the state; rather, the focus should be on the systems and institutions imposed on young people’s lives without consent—like the prison industrial complex and the school-to-prison pipeline.
In Canada, it is clear that the child welfare system is an extension of the prison system in the lives of young people. However, the child welfare system should not be used as a system to remove children from families or communities, where home and community can be defined in a myriad of ways. Because after all, wasn’t that the goal of the residential school system? To remove or displace Indigenous children from their homes and communities in an effort to disrupt and obliterate Indigenous systems of being?
While other people engage in debates on the merits of AI supporting the decriminalization of adult consensual sex work, watch who is silent on the issue of the continued criminalization of young people under the guise of protection and safety.
 R v Barabash, 2015 SCC 29 at para 36.