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

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PIVOT LEGAL SOCIETYA. One time . . . in that massage parlour. One time, I get in and it’s so dark. Thecustomer they can control the light. If they want to put it darker and I got raped.- female off-street in-call sex workerWhile it is clearly a criminal offence to physically or sexually assault another person, 87 the OHSR setsout several additional provisions requiring the workplace to be as safe as possible in order to minimizethe possibility of violent 88 incidents in the workplace. Employers must inform workers of the riskof violence, and this includes notifying workers of clients who have a history of violent behaviour. 89This requirement could result in creation and distribution of bad trick sheets or bad call lists. Somesex workers reported that their employer permits some violent clients to continue frequenting theestablishment in which they work. The OHSR requires employers to conduct risk assessments anddevelop appropriate policies, procedures and work arrangements to eliminate or at least minimize therisk of violence where complete elimination is not possible. 90 Such protections clearly are needed insex industry workplaces.The OHSR authorizes workers to refuse to engage in unsafe work, 91 while placing an obligationon employers to investigate and remedy unsafe conditions. Further, the OHSR prohibits employerdiscrimination against workers who refuse to undertake unsafe work. 92 Permitting employees to refuseto engage in what they deem unsafe practices without fear of reprisal could help avoid the situationwhere employers force workers to engage in unsafe practices, or practices they are not comfortablewith, either explicitly or by implication. This provision further supports the principle that thereshould be an industry-wide standard allowing the worker to dictate what services will be provided.Because of the overlying sexual assault Criminal Code provisions regarding consent, 93 individualworkers must be able to choose what services they will provide, as well as be able to withdraw theirconsent to any activity at any time. A provision to this effect was explicitly included in New Zealand’slegislation. 94Drug and alcohol use in the workplaceDrug and alcohol use were frequently mentioned as precipitating violence in the sex industry. Onemassage parlour sex worker described the alarming situation where employers deliberately impair theiremployees by supplying them with drugs in order to make them dependent and obedient:A. One girl she got a pimp, and she said that’s her boyfriend. But it’s totally doesnot look like her boyfriend because it look like she is just a servant because she isfollowing his back and stuff like that. And couple of times, I go over to her place. It’sher boyfriend place, she said. And she has her own room, and it does not look likeher boyfriend. And her boyfriend is a dealer; and like he is supplying her with thedrugs. Like all the money it’s go to the dealer . . . But some girls does not. Like thoseThai girls. They do not usually use condoms. Because they do not know freedom. Theyjust listen to whatever . . . You know, peoples want. The just worry they could not getthe money. Because they are drug users. Because the owner is really terrible like you87 CCC, supra note 1, ss. 265(1), (2).88 Violence means the attempted or actual exercise by a person, other than a worker, of any physical force so as to cause injury to aworker, and includes any threatening statement or behaviour which gives a worker reasonable cause to believe that he or she is at riskof injury. OHSR, supra note 7, s. 4.27.89 Ibid., ss. 4.30(1), (2).90 Ibid., ss. 4.30(3), 4.28, 4.29.91 Ibid., s. 3.12.92 Ibid., s. 3.13.93 CCC, supra note 1, s. 273.1(2).94 PRA, supra note 18, s. 17(1).126
BEYOND DECRIMINALIZATION: Sex Work, Human Rights and a New Framework for Law Reformknow they have the way to control them.- female off-street in-call sex workerUnder s. 4.20 of the OHSR, workers would not be permitted to work while impaired by alcoholor drugs 95 and employers must not knowingly permit a person to remain at the workplace whileimpaired. 96 Similarly, under s. 3.19, workers with any kind of physical or mental impairment thatmay affect their safety, or the safety of anyone else, are not permitted to work.Sex workers generally agreed that employers should prohibit drug use on the job:Q. Drug and alcohol, should they be allowed on the job?A. Nnnnnnnnnnnnnnn!A. No.A. It’s too dangerous. All the way.A. Yeah.A. Definitely too dangerous.A. And violence comes of it.Q. Who should make the rules and who should enforce them?A. The house. The house.- female street-level sex workersSome sex workers were so opposed to drug use on the job that they advocated drug testing:A. I think, sex trade, y’know, is definitely a unique employment situation so, I think,being tested . . . I am sure there are other places where you, places of employmentwhere you have to have certain tests, before you go to work. . . . Drug tests, like to beon the Police there are a lot of medical tests. I don’t think you should take offence, Ithink that it is the way that it should be. Because it’s the risks of the employment, ofthe job . . . .- female off-street out-call sex workerA. A smart person, who has a brothel, would not let drugs in their brothel . . . Samething. I just think that someone who is intoxicated either by drugs or by alcohol, isnot effective. They are not – it’s harder to be on their game. It’s harder to be aware ofyour surroundings; it’s harder to be aware of danger. That’s the biggest thing. So . . .it’s not safe.- female off-street out-call sex workerOne project participant talked about the improvement she found in her work when she managed toquit drugs:A. But like now, since I have been off drugs it’s – I’ve noticed a considerable differencein bad dates. It’s almost gone down – almost gone down to zero.- female off-street out-call sex workerSome sex workers reported that drug and alcohol use on the job is common. If prostitution is to bemade safer, further discussion about drug and alcohol use is needed. One of the primary objectives ofpolicy initiatives in this regard should be to reduce drug-related harms for sex workers.95 OHSR, supra note 7, s. 4.20(1).96 Ibid., s. 4.20(2).127
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