Legalizing Inside and Criminalizing Women Outside

In a ruling handed down on March 26, 2012, the Ontario Court of Appeal invalidated a section of the Criminal Code banning bawdy-houses (s. 210), while maintaining the provision against pimping (s. 212), and the prohibition of communication in a public place for purposes of prostitution (s. 213). The Court gave the federal government a year to make amendments to section 210. Although the decision only applies to Ontario, women's movement groups in Ontario, British Columbia and Québec, including Aboriginal women's associations, have weighed in. Of course, if the Ontario Court of Appeal decision is appealed, a future Supreme Court ruling would be binding on all the provinces.

Feminists have expressed many concerns and mixed feelings about this judgment, mainly because the proposed solution still exposes women to the violence inherent in prostitution, especially that of pimps and prostitutors (“johns”). Feminists also denounce the continued criminalization of women in street prostitution.

Women who identify as "sex workers" and their advocates welcome this ruling as a partial victory, because it would enable them to "work" legally indoors and to pay drivers, bodyguards¹ and receptionists to make them safer.² Clearly, women would still need to organize and pay others to protect them, even in these legally sanctioned indoor premises. The judges are probably more concerned about separating the "business" of prostitution from the "surrounding community"³ than preventing the violence and abuse threatening women in prostitution, on or off the streets. The decision also proposes a form of segregation, since it circumscribes where women must go to be considered legal and free from the fear of police repression.

There is some good news: the decision maintains the provision on pimping. Those who exploit the prostitution of others would still be criminalized, except in situations where their presence increases the safety of prostituted women. However, the Women’s Coalition for the Abolition of Prostitution, a national network of equality-seeking feminist organizations, stresses that testimony presented at the Trial Court level established that escort agency owners and drivers have raped prostituted women, gotten them addicted to drugs, and even "offered" them to male groups for sexual purposes. Clearly, in a relationship defined by inequality and commoditization, it becomes difficult to distinguish between protector and profiteer.

From the street to brothels?

What's in this decision for women involved in street prostitution? Would the decriminalization of brothels enable these women to move indoors? Sophie—a Montrealer who thought she would dance in strip clubs for two or three years to pay for her university education and was stuck there for 14 years—says women are being misled into thinking they will be allowed inside legal brothels. "Never forget that in the end, these are lucrative businesses whose sole objective is to make money," she says. "We know that the ones getting arrested are almost always the women on the street. We know they often struggle with substance abuse and mental health issues, homelessness, etc. These women will be refused because they don't have the “right” look or body; they will be deemed too old, too damaged, too obviously high, etc. Brothels will pass them over for fresh young “goods,” like bar-owners do with dancers." In other words, the women who are most hurt and vulnerable will remain outside and criminalized.

By maintaining the ban on communication in a public place for purposes of prostitution, the Court fails to protect women on the street. This critique of the decision is shared by those who welcome this judgment, those who reject it, and those with a more qualified response.

Julie, who joined an escort agency at 16, fears that legalizing brothels would make child prostitution both more accessible and more invisible.⁴ Also, what about all the prostituted minors who, as soon as they turn 18, would be driven into legally sanctioned brothels, as a result of the Bedford decision? In their decision to legalize brothels, have the judges taken steps to prevent such transfers between the different "sectors" of the prostitution network? Have they taken into account its link to human trafficking?

When it comes to women's ability to call on the police for protection, Maïte, a 46-year-old woman who was in prostitution for five years because of her heroin addiction (narco-prostitution) tells us that, regardless of the law, prostitution is already rife in the slums of the Hochelaga neighbourhood in Montreal. "Pimps and pushers do not want to see the cops there. They will never protect you from the customers, forget that! The rule is to not raise any fuss or disturb their business."

As for Sophie, she reminds us that, even when they are indoors, women are still abused by the police. She described the cops who patronized the bar where she worked under the pretext of checking permits and looking for under-aged women: "On my last evening there, two of them came back in plain clothes and one had me dance for him, insisting on freebies. They would often come in to grab an eyeful during their shift, and then return to paw us. They were contemptuous of us and acted as if they were above the law."

Prostitution survivors mobilize

In the media coverage of this trial we had a chance to hear the voice of women who have survived prostitution, a voice that is gaining in strength. In Vancouver, Toronto and Montreal, they are calling for gender equality and for an end to male violence and the commercialization of women’s sexuality. Maïte, Trisha, Sophie, Bridget and Mary (some of them used their real name, others used a pseudonym) have direct or indirect links with some of the women’s groups that intervened in the Bedford debate, including the Concertation des luttes contre l’exploitation sexuelle [Coalition Against Sexual Exploitation] in Montreal, Toronto’s SexTrade101, the Aboriginal Women's Action Network (AWAN) and Exploited Voices now Educating (EVE), in Vancouver. Now free of the fear and coercion of former pimps or pushers, or of the poverty in which were trapped, they have publicly commented on the Bedford decision in newspapers, radio and online. Like Sophie and Julie, they emphasize that the Bedford decision will not make women safer from violent clients and pimps. On the contrary, the decriminalization of brothels sends a clear message that the Court is abandoning women to the physical and psychological consequences of prostitution, be it inside the walls of a massage parlour or apartment, or out on the street, and this, in the absence of stronger prevention and support to stop the recruitment of young women by the sex industry.

The Bedford decision would give more power to the police, pimps and madams (who would become legitimate brothel managers). While prostitutes would be legally entitled to hire a bodyguard and "work" indoors, with the endorsement of the Ontario "Justice" establishment, "johns" would be in the clear, free to pay, come and go. Fortunately, survivors are organizing and speaking out about the daily reality of the sex industry, urging us all to consider the hidden side of this court decision.

Have women's freedom and sexuality become the object of marketplace imperatives in which women are forced into meeting the demands of men who are, in reality, just buying women's consent?

Annick Dockstader