Sex work most often is not a choice
Sex work most often is not a choice
Abolitionists are empowered by the ON Superior Court decision that the Protection of Communities and Exploited Persons Act is constitutional and does not violate Charter of Rights.
Content warning: The following contains descriptions of torture, abuse, suicide, and sexual assault. Please proceed with caution and care. If you require support, there are resources available.
On September 18, 2023, The Ontario Superior Court dismissed the Charter challenge launched by the Canadian Alliance for Sex Work Law Reform (CASWLR) and six individuals with experience in the commercial sex industry.
In his decision, Justice Robert Goldstein upheld six criminal offences targeting the commercial exchange of sex between adults as constitutional.
Abolitionists are empowered by the recent court decision in which Goldstein said that the 2014 Protection of Communities and Exploited Persons Act (PCEPA) is constitutional and does not violate the Canadian Charter of Rights and Freedoms.
The six criminal offences directly targeting the commercial exchange of sex in Canada include buying sex; materially benefiting from someone else’s sale of sex; procuring or inducing someone to sell sex; advertising sex for sale; communicating to sell sex in places where children are likely to be; and impeding traffic while negotiating the purchase or sale of sex.
The PCEPA follows the equality model – also known as the Nordic model – which criminalizes purchasers and considers the sale of sex inherently dangerous without the means to be made safe. The legislation also acknowledges the link between commercial sex and human trafficking.
Megan Walker, retired executive director of the London Abuse Women’s Centre (LAWC), would like to see the connection between the sale of sex and non-State torture (NST) included in legislation.
The PCEPA is generally not well understood. Those engaged in selling sex are immune from prosecution for providing sexual services. That’s because it is understood that the sellers are vulnerable. In fact, existing laws allow for safety measures like hiring bodyguards and make it possible for sex sellers to work together. However, those bodyguards cannot be pimps or traffickers and no madame or trafficker can be involved when sex sellers work together because that would constitute materially benefiting from someone else’s sale of sex.
When women in the sex industry are arrested, it’s not for selling sexual services. Instead, they are charged with offences like selling drugs and other criminal activity.
The legislation includes communities because entire neighbourhoods can be impacted by prostitution. Exploited persons are covered to ensure children and young people have the knowledge needed to avoid exploitation.
In Walker’s experience, this law is really important because women selling sexual services need to be comfortable enough dealing with police to be able to report when they are assaulted by a trafficker or sex purchaser.
“For me, the Nordic model, or the equality model, is the only solution we have to decrease the number of women in the commercial sex industry and therefore, decrease the number of women being harmed,” Walker told Small Change.
“This speaks to the whole issue of why the sex industry is so dangerous because you cannot make prostitution safer. It’s just impossible,” Walker added.
Walker argues that pornography has greatly influenced the expectations of men and those porn fuelled fantasies often end badly for the women involved. A growing body of evidence also supports this theory.
Walker retired two years ago, but is still dealing with the vicarious trauma she experienced while working at LAWC. The experiences sex workers shared with Walker still haunt her, but she wants the experiences of those courageous women to be known and that’s something that mainstream media has been unwilling to do.
Walker recalls a sex worker who was instructed by her trafficker to wait in a hotel room for the client to arrive. The sex purchaser eventually unlocked the door entering the room wearing a mask and holding a knife. He then violently raped the sex worker. After the vicious attack the woman was hospitalized for quite a long period of time.
Walker maintains those violent actions were the result of porn fantasies supported by a trafficker who knew he could get a lot more money for a rape scene. The sex worker was the only one involved in the transaction who was kept in the dark.
The written affidavit Walker submitted to the court in the CASWLR V Attorney General case also included the following account of torture inflicted on a sex worker.
Hung by her feet from the ceiling, the sex worker was whipped with a bull whip until she was bleeding from open wounds. Then, she is lowered down to the height of a man’s groin and expected to provide oral sex multiple times for each of the men who had just tortured her. The entire event was video taped by the men involved.
“This is the reality of the commercial sex industry. I want people to know it’s not fun and games. And, although you might have some women in the sex industry that will say, ‘I choose it, I like it,’ I’m talking about the thousands of women across this country who are experiencing this hourly, daily, every day whether they’re sick or not. And, those women never, ever thought this would happen in their lives,” Walker said.
In Walker’s experience, many sex workers are lured into the industry by a man they thought they could trust. Instead, sex work becomes the focus of their life.
Families have sent Walker pictures of vibrant young women and girls with life their eyes. Pictures taken after these same women and girls were trafficked reflect someone who is dead.
Traffickers keep these young women and girls high because they can get more out of a dull, feelingless sex worker. Traffickers also know that if they can get a sex worker addicted, she’ll stay to keep the drug supply coming.
In her affidavit, Walker also said, “Women and girls may think they are getting in there by their own choice, and many may well be, but they are quickly lured by a trafficker once they’re on the streets or advertising and that choice is completely taken from them.”
Some women believe it’s empowering to be in the sex industry. Walker considers those women to be high-end escorts who are more likely to be protected by being with other women or having a specific group of men that they deal with. However, it’s important to remember the overwhelming majority of women and girls across Canada are not choosing sex work.
According to Walker, “We have never been a country that passes legislation for the few. What we do is always pass legislation that benefits all. And, in this case, that means benefiting all even beyond women in the sex industry. It means protecting communities and protecting exploited persons.”
The judicial decision referred to Walker’s written testimony quite extensively. “I was really pleased with that because it means that the voices of women were heard and that is always my goal to make sure they are heard,” stated Walker.
Equally important is the fact that the judge specifically pointed out that the women included in Walker’s affidavit were tortured. That means NST activists like Walker and Jeann Sarson and Linda MacDonald -- who have spent over 30 years documenting, researching and advocating -- can move forward with their efforts to criminalize NST.
NST is acts of torture perpetrated by non-State actors like a parent, human trafficker, pimp, buyer or pornographer. NST legislation would facilitate the collection of data and initiate important community conversations around the fact that NST is illegal.
Currently, if someone experiencing NST goes to the police, the torturer would be charged with aggravated assault or aggravated sexual assault. Most women really don’t understand what aggravated sexual assault is or means. What women who have been tortured do know is that they were water boarded, gang raped and beaten, often to within an inch of their life, and that experience needs to be named.
Sarson and MacDonald have identified at least 48 acts of NST and found connections between physical, sexualized, psychological and mental NST crimes.
Walker believes it’s important that the experiences of women be named as NST because until they are, these women feel invisibilized and unable to move forward with their lives.
Walker advocates for comprehensive NST legislation constructed with experts like Sarson, MacDonald and women with lived experience. Unfortunately, Walker doesn’t see the political will necessary to include NST in the Criminal Code of Canada.
“I think there is fear by this government in taking these actions because they’re controversial. With women’s issues specifically, I don’t find the Liberal government to be particularly interested in doing the right thing if there’s a consequence that may make them have to defend themselves,” Walker noted.
Although Goldstein’s decision is solid, the CASWLR is appealing. Walker predicts the case will eventually end up back at the Supreme Court of Canada where this all started.
*Abolitionists are feminists lobbying to end prostitution because it’s a form of slavery and violence against women and children. Prostitution is not a form of work in Canada. #TortureIsNotWork
Find more information on NST here: Persons Against Non-State Torture