Beyond Decriminalization: Sex-work, Human Rights and a New ...

BEYOND DECRIMINALIZATION: Sex Work, Human Rights and a New Framework for Law Reformrequirements set out under the WCA. In the course of such an investigation, a Board representativewill talk to any witnesses, review any medical evidence, and review the record of employment andincome earned by the claimant. Under the current scheme, the following sections are applied withrespect to proving a claim:5(3) Where the injury is attributable solely to the serious and wilful misconduct of the worker,compensation is not payable unless the injury results in death or serious or permanent disablement.5(4) In cases where the injury is caused by accident, where the accident arose out of theemployment, unless the contrary is shown, it must be presumed that it occurred in the courseof the employment; and where the accident occurred in the course of the employment, unlessthe contrary is shown, it must be presumed that it arose out of the employment.Serious or wilful misconductWhere the injury is attributable solely to the serious and wilful misconduct of the worker,compensation is not payable unless the injury results in death or serious or permanent disablement. 54Because of the absence of precedents with respect to sex worker claims for workers’ compensation,it is unclear whether or not the Board would consider failure to wear a condom as serious and wilfulmisconduct, thereby precluding compensation, as set out in s. 5(3). According to the RCSM #16.60,wilful misconduct is determined by asking “whether the claimant had pre-knowledge or voluntarilyelected to break a rule.” In other words, the claimant must be aware of a workplace rule and knowinglyelect to break it.Proving whether or not the worker or the client is at fault in the failure to wear a condom could bedifficult depending on the particular circumstances of the transaction. Some sex workers reported thatthey sometimes feel they have little control over whether or not a client will wear a condom. One sexworker reported that a client removed a condom prior to intercourse without her knowledge. Further,in instances of violence or sexual assault, it is clear that the worker may not always be in control ofwhether or not a client uses a condom. Educating sex workers about their rights, making employersliable for workplace health and safety, and increasing the power and choice that sex workers have overthe terms of their work are important steps to increasing a worker’s ability to insist on condom use.Because coverage is only available under the WCA where precautions have been taken, condom usewould likely become a mandatory element of prostitution within the workers’ compensation scheme.Where it can be proven that a sex worker is aware of the rule and knowingly fails to use a condom andcontracts an illness as a result, compensation may not be available.Under s. 5(3) failure to follow a workplace rule is irrelevant if “death or serious disablement”occurs. This provision is commonly applied to instances where a worker has a serious accident onthe job resulting in death or disablement. Although it is not commonly applied to such instances,this provision may apply to HIV infection if it results in death or serious disablement. This wouldmean that, even where it can be proven that the worker willingly failed to wear a condom, if death orserious disablement resulted then compensation is still available to the worker. However, in the case ofsexually transmitted diseases for which there are known and readily available cures, it is unlikely thatthey would satisfy the standard of “death or serious disablement.”Section 5(3) places an obligation on employees to act responsibly in order to improve theirchances of making a successful compensation claim. In addition, when s. 5(3) is combined withthe sections of the WCA that set out general worker duties and responsibilities – including wearingprotective equipment 55 and taking reasonable care to protect the health and safety of others who maybe affected by their actions 56 – sex workers may be obliged to protect their health, and their clients’health, by using protective equipment.54 WCA, supra note 6, s. 5(3).55 Ibid., s. 116(2)(b).56 Ibid., s. 116(1)(a).115