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

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PIVOT LEGAL SOCIETYPART 10: Criminal LawIn Canada, the vast majority of criminal offences are set out in the CriminalCode of Canada. The Criminal Code is federal legislation, meaning that itapplies throughout the country. This chapter focuses on areas of criminallaw that are of specific concern to sex workers: assaults, offences involvingyouth, indecency laws, and laws with respect to the transmission of disease.The discussion does not address the existing laws of specific application toprostitution (i.e. the “bawdy-house” provision, the “procuring” provision, and the “communicating” provision ) because these are analyzed in detailin, Voices for Dignity. The problem of “trafficking” is addressed in Part 8 onImmigration Law.AssaultUnder Canadian law, any intentional application of force to another person without her or hisconsent is an assault, regardless of whether the degree of force is slight or severe. An assault doesnot have to result in physical injury in order to be a criminal offence. Many sex workers experienceviolence in their work, often at the hands of clients, and also from employers and pimps. Most participantswere of the view that the existing laws with respect to assault are sufficient to address instancesof violence that occur in the sex industry. Therefore changes to the assault laws are not required toaddress the concerns of sex workers.A. Okay, okay, rule number one – no still means no. But they are all horny.A. But there’s still those types of guys out there [who commit violent acts] otherwise theywouldn’t be a bad date.A. For sure.A. So it still happens.A. But it’s already illegal already, you don’t need a special regulation for it.- female off-street out-call sex workersA. [T]here does not need to be any special laws, around violence. There’s plenty of lawsalready around violence.- female off-street out-call sex workerHowever, the existing assault laws are only useful if they are properly enforced. The evidence setout in Voices for Dignity suggested that many sex workers feel the police are not sufficiently diligent Criminal Code of Canada, R.S. 1985, c. C-46 [Criminal Code]. Ibid., ss. 210, 211. Ibid., s. 212. Ibid., s. 213. Voices for Dignity: A Call to End the Harms Caused by Canada’s Sex Trade Laws. Pivot Legal Society: Vancouver, 2004 [Voices forDignity]. Criminal Code, s. 265(1); R. v. Burden (1981), 25 C.R. (3d) 283 (B.C.C.A.). Voices for Dignity, supra note 5.214
BEYOND DECRIMINALIZATION: Sex Work, Human Rights and a New Framework for Law Reformin investigating assaults on sex workers; many sex workers receive substandard treatment by police. Itappears likely that the criminalization of many aspects of prostitution contributes to under-enforcementwhen sex workers are the victims, as those who report assaults can be subject to discriminatorytreatment by police and, in some cases, treated as a criminal rather than as a victim of crime.One issue raised by several sex workers is the potential for the current assault laws to protect themfrom being forced to engage in sex with an employer or prospective employer in order to secure ormaintain a position in an escort agency or massage parlour. A massage parlour worker described thisalarming and common job requirement:A. No, I tell you something. This is pretty disgusting, but this is happens to every singleone. I mean every massage parlour that have it. I am pretty certain, hundred percentsure. ‘Cause I have been some like you know three different massage parlours. I didnot really work for the first one. What happens is the first thing when you go forinterview . . . And they will ask you do you know how to do massage. They will wantyou to get into the room. And like you know they will asking you to wear dress, skirtusually. What happens is they say, you know, I am the test. And the test is you haveto have sex with the guy [the owner], with the manager. Usually, what happens issome of them, they have managers. They say manager but I think that’s just a pimp.Usually we call them dealers because they do not treat the girl as a person. They justcalled dealers. Doing the deal.- female off-street in-call sex workerAnother former worker and current massage parlour owner described a similar situation:A. The type of stuff that takes people over the edge – is the type of the stuff that happenedin [massage parlour] where you’re, y’know, where you have to let the owner goperform oral sex on you on a regular basis, to hold your job.- female massage parlour owner, former sex workerSex workers expressed a need for protection in cases where they are coerced into engaging in sexual activitieswith an employer in order to keep a job, or if they feel they are forced to provide particular sexual servicesto a client. This issue is looked at in more detail in the following discussion of sexual assault.Sexual assaultThe term “sexual assault” is not defined in the Criminal Code, but case law has determined that itmeans any non-consensual touching of a sexual nature. &10 In other words, any assault that is sexual innature is a sexual assault.Consent – general considerationsSection 265(3) of the Criminal Code states that consent is not obtained if a person submits or doesnot resist by reason of actual or threatened application of force, fraud, or the exercise of authority.Consequently, the law offers protection to those who are intimidated into “consenting” to unwantedsexual contact. Therefore, one issue that arises is whether the law of assault would apply to protect sexworkers who are compelled to engage in sex with an employer or prospective employer in order tosecure a position at an escort agency or massage parlour.For such a prosecution to succeed, the court would have to decide that the economic power ofan employer amounts to an “exercise of authority” within the meaning of s. 265(3) of the Criminal Voices for Dignity, supra note 5. Criminal Code, s. 271.10 R. v. Ewanchuk (1999), 22 C.R. (5th) 1, 131 C.C.C. (3d) 481 (S.C.C.).215
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