Sex workers challenge the law – Interview with Kerry Porth about the Bedford supreme court challenge
This is a special, longer, web-only version of the interview. A shorter version appeared in the print edition of the Downtown East, limited by space. The editors believe this is an important interview so we wanted to make the whole thing available online.
In August the Downtown East spoke to Kerry Porth (Pivot Legal Society board; former executive director, PACE) to discuss the significance of a Supreme Court challenge to three laws that currently criminalize sex work in Canada. On June 13th, Kerry went to the Supreme Court hearing with a DTES contingent, organized by Sex Workers United Against Violence (SWUAV) and Pivot Legal Society.
Can you explain what laws were being challenged at the the Supreme Court hearing on June 13?
The case was brought by three active sex workers, Terri-Jean Bedford, Amy Lebovitch and Valerie Scott. All three women are currently doing indoor work. All three women have done street work in the past. They were represented by a lawyer named Alan Young. Alan is a professor at Osgoode Hall Law School in Toronto.
They were arguing against three laws:
Section 210, which is keeping a common bawdy house, which prohibits people from working indoors.
Section 212, which is living off the avails of prostitution, which prohibits sex workers from hiring people to help protect them or assist them in their work, and also isolates sex workers because their spouses and adult children can also be found guilty of living off the avails of prostitution if they live with a sex worker.
And Section 213, which we were most concerned with, which prohibits communication in a public place for the purposes of prostitution.
The original case was heard in 2007. A decision came out in September 2010 from the lower court in Ontario. Justice Susan Himel struck down all three provisions as unconstitutional. Of course the government immediately appealed that to the Ontario Supreme Court of Appeal. They agreed with the decision to strike down the bawdy house law. Instead of completely agreeing with the decision on 212, they decided that 212 would only apply in certain circumstances of exploitation, without defining what exploitation was. I can pretty much guarantee that if the sex worker is addicted to drugs it would be considered exploitation and that can impact a lot of street based sex workers.
And 213, they didn’t agree with at all, and they upheld the law. So it was appealed to the Supreme Court of Canada, and that was heard on June 13th, and that is why we were there.
How do these laws put sex workers in danger? What has your experience been?
210 refers to a common bawdy house, and a bawdy house is any location where sex work regularly occurs. That can include a sex worker’s home. Landlords can be convicted under that law, so they have a duty to evict anybody who they find is doing sex work in their home. That happened to me twice. And those aren’t normal 15 day evictions, those are “get-the-fuck-out-now”, which is pretty much what you do because you’re in a position of being completely powerless because the landlord can call the police.
There is ample evidence from all over the world, years and years and years of it, that demonstrates that working indoors is safer because sex workers have more control over their work environment. In my case, I did sex work for four years in the context of serious addiction. I worked on the street for five nights, and every time I picked up a date on the street it went wrong. I was really fortunate that it never resulted in violence but the potential of violence was incredibly real and incredibly present. I also knew that I didn’t have the skills to negotiate so I was really lucky to be able to work in my own home and have the clients come to see me. Sometimes I had someone else in my apartment with me, but 100% of my clients believed that there was someone else in the apartment. And that is the point, to keep you safe.
Section 212 was enacted to protect sex workers from predatory pimps but it does nothing of the sort. I don’t know of any case ever that has been brought against a predatory pimp under that law. What it does do is tells sex workers who they can financially support with their earnings and that better not be your husband or putting your children through university. If you had ageing parents that you were partially supporting, they could arrest your 80 year old mother for that.
That law tells women what they can and cannot do with their money. And it isolates them because a lot of sex workers choose not to live with people for fear they are going to get charged under that law. Sex workers sometimes choose to rent an apartment together to live and work in. They then are considered to be pimping each other in certain circumstances. So that law doesn’t work. Really, we’re talking about financial exploitation, and we already have a lot of laws on the books to deal with that. So I don’t know why we need a special one on sex workers. There are other ways of protecting women if that is what the law is intended to do.
Section 213 prohibits communication in a public place. A public place is behind the closed, locked doors of a car. Standing at a payphone is a public place. Talking on a cell phone is a public place because the signal can be picked up. What’s not a public place? Talking on a landline is not a public place. And the internet is pretty much a grey area.
213 really impacts street based sex workers the most. I’ve never heard of an indoor worker getting caught for communicating. If you are a sex worker, and you are in the DTES, and every cop knows you’re a sex worker, the mere fact that you are standing on the street, the minute you say “hi” to a man in a car, or a man on the street, you’re guilty of communicating. You don’t even have to start the negotiation. Communicating is the minute you open your mouth.
So the sex worker and the client try to rush the transaction. She’ll often get in a car with a man, a stranger, before she can negotiate what she wants to do, how much she expects to be paid, where she feels safe being taken. Once you’re behind the closed doors of a moving vehicle you’re powerless in that situation.
The client tries to rush the transaction because they can being convicted of communicating in a public place as well. That is also where a sex worker, particularly if she is desperate because she is drug sick, will agree to work without a condom in the hopes that she can talk him into it when she is in the car. That is the law that impacts street based sex workers the most.
The people arguing to uphold the laws say that they are concerned about human trafficking and child prostitution. How do you respond to that?
Fears about human trafficking have been wildly exaggerated. There is an unholy alliance of fundamentalist Christians, other faith-based groups and radical feminists – two groups you’d never really think to see in bed together – whose goal is not to rescue child prostitutes or victims of human trafficking. Their goal is to abolish all prostitution whether it is consensual or not. The vast majority of sex workers are doing their work consensually. They may not be doing it under ideal circumstances. I certainly wasn’t, but my choice wasn’t a coerced choice. It was a choice I made as an adult woman. It is my right to do what I want with my body. I’m pretty sure that is what the women’s lib movement was fighting for.
It is very difficult to get real numbers on human trafficking because it is extremely underground. But we have some really wishy-washy definitions about what is human trafficking, what is the sexual exploitation of a youth and what is youth involvement in sex work. There are an awful lot of runaway kids who turn to sex work because it is their best choice to be able to survive. And often they don’t feel particularly sexually exploited. Us looking at it from the outside as adults are really uncomfortable with it and even if it isn’t ideal and we do want to get them out of it, the method of getting them out of it by getting them into the criminal justice system is not going to work.
Real victims of human trafficking are incredibly rare in Canada and 9 out of 10 cases of labour trafficking is for labour, not for sex. The only person who can truly identify the victim of sex trafficking is the victim herself. You have to take into account that there are a lot of people who employ some pretty dodgy middlemen and some pretty sketchy ways to travel because they want to migrate illegally to another country to better their lives. And some of them choose to go it through sex work. That might make some people uncomfortable but the fact that people get uncomfortable about it doesn’t mean we should institute more draconian laws to try to stop something that is going to continue to happen.
The other argument is the Swedish model [which claims to target clients and not sex workers]. When people talk about the Swedish model they say “hold the clients responsible for their violence”. Ok, well, what about a client that isn’t violent? Are you going to put him in jail too? For three years I worked with a group of people with disabilities who were trying to get safer access to sex workers. These people were quadriplegics. They weren’t physically capable of being violent towards a sex worker. Are you going to put them in jail too? Do you really want to demonize and criminalize human sexual behaviour? It would be great if everyone who wanted to have sex could have sex, but we know that isn’t the case.
The other thing about the Swedish model that they forget to tell you about is that it does not decriminalize sex workers because in Sweden there is still a law prohibiting the bawdy house, there is still a law prohibiting public communication, and there is still a law prohibiting living off the avails. Under all three laws sex workers can be convicted. Plus, in order to prosecute someone who has purchased sex, where are you going to get the evidence? You are going to use the sex worker as a hostile witness or you are going to extract evidence from her body through an invasive medical procedure – all in order to “rescue” her.
If all three laws are found to violate the charter rights of sex workers, and struck down, how will it affect sex workers, and what are the next steps for defending sex workers rights?
I think we are going to go through a really chaotic period for anywhere between two and five years. I think we’re really well positioned in Vancouver. I sit on the City of Vancouver Sex Work Task Force, I work with Living in Community and the city is trying to ready itself for a potential change in the laws. Just this morning I was looking at some of the basic guidelines that the city wants to adopt and what it’s response to sex work is going to be. The focus will be on the health and safety and dignity of all people including sex workers, and that enforcement is only to be used as a last resort.
In Vancouver, some friends and I are working on a representative organization. We need an organization that is directed by sex workers that can act as a negotiating body. We’re going to have to be really vigilant because there are so many legal ways to really mess with the sex industry. I worry about other places, but I am hopeful about Vancouver at least.