Since Victorian novelist Charles Dickens coined the phrase “The law is an ass,” many people have had cause to repeat it. As a remark made by a male character in Oliver Twist, that phrase referred to the nineteenth-century legal concept of “coverture,” under which married women had no legal identity of their own, since they were “covered” by the authority of their husbands. In the following decades, a growing number of feminists agreed with Dickens’ character that this law had no connection with reality. Step by step, law by law, women in English-speaking countries were eventually granted most of the rights of adult citizenship.
This process still isn’t complete. Few people on earth have had more reason to despise traditional laws than sex workers. And although sexual pleasure has been sold by people of all genders and proclivities for millennia, the popular image of a sex worker is still that of the Fallen Woman of yesteryear, a sinner and a victim who supposedly needs to be forced out of a hellish pit of shame for her own good.
Laws against the sex trade are generally more drastic in the United States than in Canada, where an exchange of sex for money, per se, is not illegal. Yet Canadian federal laws aim to bind and gag sex workers, since it is illegal for anyone in Canada to solicit customers, to communicate for the purpose of prostitution, to “keep a common bawdy house” (note the archaic language), to “procure” customers for someone else, to lure someone into the trade, or to “live off the avails of prostitution.”
Imagine learning that you can legally work at a service job (say, as a cook or an alternative health practitioner), but you can’t advertise or even discuss your service or your prices with anyone, you can’t provide the service in a place designed for that purpose, and you have good reason to fear being arrested at any time by an undercover police officer posing as a customer. In such conditions, you would need a reliable manager, a bodyguard and maybe a publicist, yet a person filling any of these roles would be just as vulnerable to legal charges as you, even if he or she (the “pimp” or “madam”) never provided the primary service.
These laws were already outdated when the new Canadian constitution was implemented in 1982, complete with a Charter of Rights and Freedoms, which (among other good things) grants equal rights to men and women. Considering that the laws surrounding the sex trade are notoriously vague and contradictory, why weren’t they struck down or at least revised years ago? Even the lawyers in a Legal Aid office couldn’t explain how one could legally practice the sex trade in Canada without breaking any laws. (I asked about this in the early 1980s.)
Since the laws and the social stigma against prostitution are largely aimed at women, have feminists taken a stand on the issue? They certainly have. Most of the self-defined feminists I know have advocated a “crackdown” on the sex trade, presumably so that victimized women could be rescued from it — by being sent to prison! Whenever I have suggested that, by the same logic, female victims or survivors of sexual and physical abuse (e.g. wife-beating) should also be convicted and locked up for their own good, feminist “friends” have responded with shock: but those women are innocent victims of patriarchal violence! They’re not the source of the problem!
So there you have it. Many so-called advocates for “women” seriously propose to abolish the sex trade once and for all by parading everyone in it through the courts and shaming them as publicly as possible. (Of course, that would motivate Fallen Women to seek respectable jobs and enable them all to get hired.) The more liberal, moderate version of this campaign aims to punish pimps and/or johns, conceived of as men who have joined forces to exploit women. Yet pimps and johns are hardly in cahoots. Pimps have a motive to protect sex workers from physical damage and economic exploitation, and many johns consider themselves chivalrous men who want to “rescue” whores from a sordid profession–by persuading them to provide free service. And even a focus on evil men as the enforcers of prostitution rests on an unexamined assumption that sex is so harmful to women that even consensual arrangements need to be policed.
Those who define prostitution as a form of “violence” need to be reminded that only assault is assault, abduction is abduction, extortion and false advertising are–well, you see what I mean. There are laws in place against all these things, whether they have any connection with sex or not. And laws against violence are more likely to be enforced when the victims have no reason to keep their mouths shut.
Conservatives hate the sex trade for various reasons. Men complain half-jokingly that whores would be more appealing if they didn’t demand payment for their services, while conservative women want them to leave other women’s husbands alone. Property-owners worry about the damage to property values that can be caused by the sex trade.
Christian and Islamic fundamentalists watch the sky for the bolt of righteous lightning which is surely coming soon—because their God can’t tolerate sex outside the bonds of matrimony.
Self-defined spokespeople for the marginalized, exploited communities which serve as source pools for the sex trade generally resent being associated with it. They point out that most of “their” women are not prostitutes and never were. They want the local police to be educated not to mistake decent members of their communities with actual prostitutes – who, of course, deserve whatever they get.
And so the politicians who make the laws (many of whom enjoy access to the sex trade), the business owners who influence the politicians (who may be the biggest fans of the sex trade), social reformers who lobby against street crime, racism, structural poverty, illegal drugs and sexual abuse, feminists who want women in general to have a more dignified image, and religious zealots who fear the wrath of a macho God can all officially agree on one point: the sex trade is bad and needs to be “cleaned up.” Advocates for sex workers’ rights exist in every city, but they don’t seem to be welcome in broad coalitions of People Against Bad Things who expect the police to erase every sign of vice from all public space.
Unknown to most Canadian voters, advocates for sex workers’ rights have patiently tried to bring Canadian laws into line with the Charter of Rights since 1982, against the tide of public opinion. Most politicians who privately admit that the laws are archaic and hard to enforce haven’t dared suggest changing them. While the Men in Suits who advocate a police “crackdown” seem more likely to keep escort agencies in business, the brave few who recommend treating sex work like any other service job are more likely to be ridiculed or stigmatized for their interest in it.
On September 28, 2010, however, a brave judge made a sensible decision. Justice Susan Himel of the Ontario Superior Court struck down the laws surrounding the sex trade (at least in her jurisdiction, the province of Ontario) as inconsistent with the Charter. She said: “It is my view that in the meantime [until new legislation can be set up], these unconstitutional provisions should be of no force and effect, particularly given the seriousness of the charter violations.” It’s not as catchy a slogan as “Keep your laws off my body,” but in the meantime, it’s good enough.
Justice Himel’s decision was a response to the suit brought by three sex workers: Terri-Jean Bedford (who has shown up in the media in her pro Domme gear and a victorious grin), Valerie Scott (a long-term sex workers’ rights advocate) and Amy Lebovitch. Their lawyer defended the case largely free of charge, with help from a team of twenty law students.
Terri-Jean Bedford, the plaintiff who seems to be quoted most often, said: “The worst thing that can happen is for nothing to change. Nothing can be worse than what we have now. . . These laws don’t allow women to protect themselves.”
Now that a legal expert has openly said what amateur observers have known for years, Canada’s current sex-trade laws can’t survive a legal challenge anywhere in the country. As of this writing, I assume the Supreme Court of Canada and the federal legislature will have to tackle this issue as soon as possible, and try to find a viable modern alternative to laws that have been knocked down like a rotting wooden fence.
Will Victorian attitudes be the next to fall? One can only hope. As long as women’s sexuality is envisioned as a swamp full of hissing snakes (as in the Garden of Eden), those who earn a living by selling sexual service will be social outcasts. We need new conceptions of guilt and innocence.
Jean Roberta
November 2010
“Sex Is All Metaphors” © 2010 Jean Roberta. All rights reserved. Content may not be copied or used in whole or part without written permission from the author.