by Jean Roberta

In 2010, three brave sex workers went public to challenge Canada’s antique laws on sex work. These laws, which were essentially unchanged since Canada became a nation in 1867, made it illegal to:

– “solicit” customers (interpretation of what this actually meant was up to local police and courts)
– “keep a common bawdy house” (a place designated for the exchange of sex for money), or
– “live off the avails” of prostitution (to operate as a pimp or manager of a sex worker).

The legal basis of the challenge was Canada’s Charter of Rights and Freedoms, passed into law in 1982.

A sensible Supreme Court judge, Beverley McLachlan, agreed with the three challengers that the 1982 laws made the older laws on sex work unconstitutional. What to do?

Judge McLachlan gave the Canadian government a mandate to come up with a new plan for dealing with sex work. Apparently leaving it alone was not an option. In 2013, the illegality of the previous laws was finally confirmed (if you follow this). In June 2014, a new slate of laws was proposed, and it has been furiously debated since then. The new bill has to be passed into law or rejected within one year: by June 2015.

So what is this new bill? It was borrowed from Sweden, where it was devised by the feminist wing of a left-of-centre political party. Apparently this new approach has spread to other Scandinavian countries. Its aim is to “protect” women and children from sexual exploitation.

The new bill makes it illegal to buy sexual services (or to communicate for the purpose of buying them), but not to sell sexual services. It also makes it illegal to “practice” the sex trade in the vicinity of anyone under the age of majority, which is eighteen in Canada. In some parts of Canada, men who are arrested for buying sexual services are already sentenced to attend “john school,” where they are taught that what they did was exploitative and immoral.

I’ve been asked what I have against this approach, if I call myself a feminist. Sigh.

Firstly, the prohibition against selling sex within sight of children just seems ridiculous to me. In the early 1980s, I brought my two-year-old daughter with me to visit a friend in Vancouver, on the Canadian west coast. My friend lived in the West End of the city, which was known as a centre for street prostitution. When my friend, my child and I walked down the street on our way to the park or the shops, we saw what I first mistook for fashionably-dressed women waiting for buses or taxis. They didn’t bother the three of us; we weren’t their target audience. Only after my friend pointed this out to me did I notice the brisk trade between the women and the men who picked them up.

I really doubt whether my two-year-old was damaged by being exposed to this aspect of city life.

Later, as a single mother who needed money, I went to work for a local escort agency in Saskatchewan, where I live. The first escort agency in my city was apparently started in the late 1970s by two women from Winnipeg (a bigger city to the east of me), where this method of practicing the sex trade was wildly popular. The agencies are based on the legal fiction that they simply provide companionship for a limited time for a paying customer. If sex is not explicitly mentioned by a customer who calls the agency, or by the receptionist who takes the call, this fiction can be maintained. When the “escort” meets the customer at his (usually his) home or in a hotel, they can negotiate an exchange of money for sexual services. The owners of the agency can claim to be blissfully ignorant of what actually happens between their employees and their customers.

The sex trade is parallel to the magical world in the Harry Potter novels. Harry, as a person who was born to be a wizard, finds his community when he is sent to Hogwarts School for the magical arts. Harry, and the reader, learn that magical folk have their own culture, their own businesses, and even their own currency, of which the “muggles” are usually unaware.

Wherever you live, the sex trade is probably being practiced in some form near you. If you are not a buyer or a seller (like me as a tourist in Vancouver), you probably don’t notice it. The higher-paid forms of sex work (“escorting”) take place indoors where it is unlikely to be seen by anyone not directly involved.

There are already laws against the exploitation of underage children in any form of paid employment in most industrialized nations since the nineteenth century. If ten-year-olds are earning money on the street, they are being exploited by adults like the children in factories during the Industrial Revolution. The debate over this took place generations ago, and we don’t need to go there again. We have child protection laws, foster homes, and mandatory public schooling. Even if none of these things work perfectly, there is no need to create new laws to deal with the exploitation of children as workers.

There are also laws in place to deal with human trafficking: the transporting of people, without their consent, from one place to another, for various purposes, not only sex work. Domestic workers from other countries are notoriously subject to abuse. The solution to this problem, IMO, is to apply existing legal labour standards to all forms of employment.

Is the sex trade creating a commotion on a city street? Then laws against excessive noise can be applied. Are adult women being pimped against their wills? There are laws in Canada against kidnapping and forcible confinement. If police are being bribed to ignore flagrant violations of the law (and I’m not saying they are – this is a “what-if” speculation), then police corruption is the problem, not sex work per se.

What does all this have to do with the writing of erotica? More than you might think. None of us can ignore the culture in which we live, and attitudes toward sexual services as work are ultimately based on attitudes toward sex in general, paid or unpaid. As long as sex is considered shameful, and women (in particular) who engage in it are both blamed and pitied, sex work in its dazzling variety will be seen as a social problem.

Trying to legislate sex work out of existence is like trying to hold back the sea. As long as this is being done by muggles–even those with humanitarian goals–it’s safe to predict that the laws will be challenged again and again.