I occupy a unique position in law school as an Indigenous woman with sex working experience and in particular, as a person with sex working experience where much of my Faculty’s professors strongly advocate for the abolition of sex work. While I know my experiences are neither welcomed nor accepted as valid and legitimate in some spaces especially in my Faculty, I remain committed to ensuring sex workers’ stories and experiences are centered when and where appropriate. Though I previously written about leaving the sex work movement, I never said I would stop writing. So, I write…
Just recently, Laura Lee, a sex worker in Ireland, brought forward an application for judicial review of the legislation which criminalizes the act of paying for sex. The law against purchasing sex came into effect last year, which is eerily similar to Bill C-36, For the Protection of Communities and Exploited Persons (“Bill C-36”).
Briefly, Bill C-36, which is now law, is the law that the previous Conservative government passed in response to Canada’s highest court’s decision to declare three prostitution provisions invalid for violating sex workers’ Charter rights. Specifically, the Court in Bedford v Canada held that the three challenged provisions violate Section 7 or the right to security of person which is not in accordance with the principles of fundamental justice. The Court further held that these provisions were not saved by Section 1 of the Charter. Section 1 imposes “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” on such rights and freedoms guaranteed under the Charter.
Her lawyer, Ciaran Moynagh, tweeted several days earlier that there a resistance on the part of the Attorney General of Northern Ireland (the “AG of NI”) acting for the Office of First Minister and Deputy First Minister (“OFMDFM”), despite the application being the responsibility of Department of Justice (the Department of Justice is part of the OFMDFM). Thus, the initial step, to be granted standing, has been achieved earlier this week despite the AG of NI suggesting otherwise. This decision does not determine the outcome of the application.
The AG of NI attempted to argue that Laura did not identify any unlawful act and that the law provided greater protections for Laura. These kinds of positions are, again, eerily similar to the ones provided in support of Bill C-36. For instance, one of the arguments advanced as the bill passed through committees and debates was that the bill offered protection for exploited persons; yet, the bill assumes all prostitution to be exploitative and does not differentiate between exploitative situations and non-exploitative situations. I asserted at the standing committee for justice and human rights “that criminalizing clients ignores the structural issues that cause forced labour, thereby distracting from the government’s responsibility to victims of exploitation.” Even more troubling, laws that allege to end human trafficking by attacking the purchases have far reaching and dangerous outcomes for sex workers.
On her application for judicial review, Laura Lee says to me in email that the law prevents sex workers from working together in safety. This is much like the effects of Bill C-36, which prevent sex workers from working together.
Since Bill C-36 assumes all sex work to be inherently exploitative, anyone—including other sex workers—who profits or share profits obtained through selling of sexual services is benefiting from exploitation. In other words, despite the exceptions to trafficking provisions in Bill C-36, Bill C-36 prevents any sex worker from taking steps to implement safety enhancing provisions.
Laura describes the dangers with criminalizing the purchasers of sexual services, “Attackers and those who would do many other forms of harm are well aware of that situation, which makes it highly dangerous for us.” The Bedford decision also recognized this harm from people who preyed on sex workers by stating, “If screening could have prevented one woman from jumping into Robert Pickton’s car, the severity of the harmful effects is established.” Despite this holding, the Conservative government passed its harmful bill with the remaining parties voting against it (except for those members who did not vote or were not present to vote).
Wendy Lyon, a solicitor in Ireland who is not working on the application, provides context to Laura’s application when others have written that Laura’s application is based on right to privacy.
Wendy outlines, “[Laura’s] argument is actually based on the right to respect for private life under Article 8 of the European Convention on Human Rights […]. Among other things, it protects the individual’s right to be free from arbitrary or insurmountable state-imposed obstacles to the exercise of lawful activities of significance in one’s personal life [emphasis added].” Wendy correctly notes, “[The argument] is essentially the same argument that was upheld by a unanimous Supreme Court in Bedford v Canada, under the Canadian Charter’s right to security of person. Laura’s team are asserting that this same right to security of person is encompassed within the Article 8 right to respect for private life.”
Throughout the committees and the debates on Bill C-36, the Conservative government alleged that the Bedford decision, absence any legislative response, would decriminalize prostitution. The Conservative government also alleged to have read the Bedford decision. Arguably, however, if the Conservative government read the Bedford decision, it would have understood that only three prostitution provisions were challenged and declared invalid—not all of the provisions criminalizing prostitution. These challenged provisions included three provisions which resulted in many sex workers’ lives to be lost.
This lie is similar to other lies that were and continued to be passed around about Bill C-36. One such lie is that Bill C-36 decriminalized the sellers. Supporters of such laws also allege to claim to support the decriminalization of sex workers in an insidious effort to “ending” violence against sex workers—ignoring the fact that criminalizing the purchasers puts sex workers at risk of more violence.
Wendy stresses the effects of criminalizing purchasing sexual services when she outlines Laura’s arguments, “Laura’s legal team is arguing that the anti-sex work laws breach [Laura’s rights] by making it more dangerous for her to engage in the lawful activity of providing sexual services for pay.”
Several international organizations have recognized the harms of criminalizing sex work, including the selling and buying of sexual services. Laura reminds us all, “Decriminalization is recognized as the ideal model for harm reduction by the World Health Organization, UNAIDS, and more recently, Amnesty International.” It is important not to forget these positions by such organizations which is supported by their reports based on evidence.
Laura continues, “It’s time to recognize the true impact of these archaic laws; 154 sex workers have been murdered in the United Kingdom since 1990. That stops now.” I agree with Laura, both as a student studying law and as someone with lived experience in the very trade impacted by the harms of criminalization. In Canada, from the year 1985 to 2011, around 300 sex workers have been murdered.
These type of decisions and government’s resistance to respond to the harms caused by criminalization of sex work, including Justice Minister Jody Wilson-Raybould’s silence since my open letter to Justice Minister last year, have left me with many questions about the role of lawyers in social movements.
The sex work movement is a social movement but it is also about legal interventions to the realities faced by sex workers, including increased violence due to criminalization.
I asked Laura’s lawyer, Ciaran Moynagh, about the role of lawyers in these kinds of legal efforts and interventions. Ciaran highlighted the importance of recognizing that sex workers are experts in their own lives. Ciaran states via email, “[W]hen a potential client comes in saying they need advice and representation, whether it be about sex work, LGBT rights, obscenity or some other uncommon matter I may know very little about, I treat them as the expert and from the outset listen. These potential clients have the life experience and I will take their story, carry out research and apply the law accordingly.” While we all have different life experiences, not everyone can be experts in every life experience. Ciaran notes, “Everyone’s life experiences are vastly different and I am an expert in law but not life.” So, Ciaran believes “[I]t is essential that you accept instruction without fear or prejudice.” No argument there.
Ciaran, as a lawyer working with Laura Lee, was also kind enough to offer some practical advice when I reached out to him. Such advice included being prepared, as Ciaran explains, “for an uphill protracted battle and be prepared for ignorance to meet you at every stage.” As someone who has been attacked, harassed and stalked for my advocacy efforts, I only know this from experience. Ciaran reminds me, “Knowing this will allow you to structure you case to make it accessible as possible and base it on facts, evidence and research!” Still, because access to justice is a major problem in Canada, Ciaran also reminds me, “Another major hurdle is funding so be inventive!” You can help support Laura’s efforts by donating to her legal fund here: https://www.gofundme.com/3rikpo.