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

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PIVOT LEGAL SOCIETYHowever, even if adult prostitution is completely decriminalized, workers who operate outside ofany form of employment relationship – such as street-level workers and independent escorts – will notbe protected against harassment by clients. Instead, harassment by clients would have to be dealt withunder criminal law. Alternatively, independent sex workers could try to argue that they are protectedagainst discrimination in their workplace because they are actually employed by their client, ratherthan being self-employed.Human rights law recommendations1. Repeal the criminal laws relating to adult prostitution in order to afford greater protection to sexworkers from sexual harassment by both employers and clients.2. Ensure that sex workers have full access to the human rights complaint process in cases where theyare subject to sexual harassment by their employers and clients.3. Educate sex workers, employers and clients about the laws relating to harassment and the potentialfor employers to be held partially responsible for failing to provide a workplace free from discrimination.4. Ensure that members of federal and provincial human rights tribunals understand that an activitycan only be considered part of sex work when the worker provides consent, and that sex workerscan experience the same emotional and psychological trauma from all forms of discrimination,including sexual harassment, as any other type of worker.5. Human rights tribunals should consult with sex workers on the appropriate criteria to apply indistinguishing sexually harassing behaviour from contracted sexual services so that sex workersmay enjoy protection from sexual harassment by clients.6. Discrimination on the basis of lawful source of income should be added as a prohibited groundlisted in all sections of the BCHRC.7. Canada’s human rights tribunals should work with sex workers to develop new ways to offer fullhuman rights protections to self-employed sex workers.8. Canada’s human rights tribunals should be provided with information concerning the appropriatemeans for adjudicating claims involving sex workers.190
BEYOND DECRIMINALIZATION: Sex Work, Human Rights and a New Framework for Law ReformPART 8: IMMIGRATION LAWThe legal issues faced by migrant sex workers can be extremely complex giventhe way in which their lives are affected by both criminal and immigrationlaw. Migrant sex workers may be subject to two punitive systems. First,they may be criminalized due to their involvement in sex work which maycontravene one or more Criminal Code sections that relate to prostitution. Second, under the Immigration and Refugee Protection Act (the “IRPA”),they may be subject to removal or deportation. Their right to remain inCanada may be tenuous if they have not secured permanent resident status.Given these vulnerabilities, migrant sex workers are frequently subject to serious human rightsviolations in their work environments. These violations often go unnoticed and unreported as manymigrant sex workers are unable to avail themselves of legal and social protections that could maketheir work and lives safer. Under these conditions, migrant sex workers are in a position of extremevulnerability.In this chapter, we use the term “migrant sex worker” to refer to a person born outside of Canadawho engaged in sex work once having migrated to Canada. This Part begins with a discussion of prevalentassumptions about migrant sex workers, examines the rights that sex workers who find themselvesat various stages of the immigration process, provides an overview of the research into humantrafficking and smuggling, and concludes with a list of recommendations for law and policy reform.Are all migrant sex workers “trafficked persons?”The experience of migrant sex workers is often subject to overgeneralizations given the tendency tolabel all migrant sex workers as “trafficked persons.” The label “trafficked persons” certainly describesthe situation faced by many migrant sex workers who have become involved in sex work as a resultof coercion and exploitation. However, our interviews with sex workers suggest that the term “trafficking”should not be applied indiscriminately to all persons who migrate to Canada and becomeinvolved in the sex industry. Some migrant sex workers asserted that they did not end up in sex workas a result of exploitation or coercion and choose to engage in prostitution.Central to any discussion of trafficking in persons is the issue of “consent.” From a legal perspective,consent involves a person’s capacity for agreement free from fraudulent representation, force orundue pressure. There is ample evidence that many women and children involved in the sex trade aresubject to exploitation, including coercion, blackmail and physical brutality. Trafficking in persons iscommonly referred to as the modern-day slave trade. Against the view that all sex work-related migra- Criminal Code, R.S., c. C-34 [Criminal Code]. Immigration and Refugee Protection Act, S.C. 2000, c. 27 [IRPA]. While the term “trafficked persons” is used to describe many situations involving people forced to perform labour, it will only beused in the context of sex work in this report. Sex work involving children is outside the scope of this report. Therefore, sex work-related trafficking and migration involvingchildren will not be discussed in this chapter. A. Cockburn, “21st-Century Slaves” (2003), online: National Georgraphic magazine
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