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

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PIVOT LEGAL SOCIETYindecent materials through the post, 21 and a law making it an offence to expose or exhibit an indecentdisplay in a public place. 22Participants made few comments about the role of criminal laws relating to indecency, otherthan with respect to the need to control advertising for sex work in the same way that all commercialdisplays are regulated.Q. What do you guys think about advertising for sex work? So right now you don’t seetelevision ads advertising sex work. You don’t see billboards that are you know . . .A. Agencies or bus stops.Q. That’s because there’s laws.Q. Do you think there should be any restrictions on the content or location of advertisingfor sex work?A. Do you think it should be done just like any other business?A. As long as you don’t show like naked . . . because we have to realize that okay thereare children so you have to do it in a way that is not too visual kind of thing.A. Discreet.A. Existing obscenity laws apply. They’re out there right now.- female off-street out-call sex workersAs our participants observed, existing obscenity laws would apply to the advertisement of sexualservices. Sex workers did not comment on whether they felt that the issue of “indecency” requiredclarification in criminal legislation, or whether it could be better dealt with through civil legislation.By way of comparison, New Zealand’s PRA imposes special restrictions on the advertising of sexualservices. 23 It is an offence to advertise such services by means of television or radio advertisements orcinema trailers. The PRA also gives territorial authorities the power to make by-laws regulating signageadvertising commercial sex, but only if the authority is satisfied that the by-law is necessary to preventnuisance or offence, or to preserve the character of an area.Non-disclosure of HIV-positive statusFear of sexually transmitted diseases was the principal justification offered for 19th century lawsregulating and restricting prostitution. 24 Fear of disease is again a recurrent theme in discussions ofprostitution and the law. 25 Canadian criminal law addresses the issue of deliberate or reckless diseasetransmission through the assault law. Sexual or other physical contact is an assault absent a validconsent. One way in which consent may be vitiated is if it is obtained through fraud. One exampleis the case R. v. Cuerrier, where it was established that if a person who is HIV-positive either fails todisclose that status, or deliberately lies about it, and through this fraud puts another party at significantrisk of bodily harm, then the other party is deemed not to have consented to sex. 26The exposure of another person to a significant risk of HIV transmission is enough to make thefraudulently-obtained consent an aggravated assault as defined in s. 268(1) of the Code, becauseit endangers the life of the complainant. There is no need for the complainant to actually becomeinfected in order for the act to constitute aggravated assault: the risk of infection is considered to be21 Ibid., s. 168.22 Ibid., s. 175.23 Prostitution Reform Act, ss. 11-14.24 For a discussion of England’s Contagious Diseases Control Act, which was the model for similar laws in many Commonwealthcountries, see: S. Metzenrath, “To Test or not to Test” (1999) 18(3) Social Alternatives 25.25 K. Bastow, “Prostitution and HIV/AIDS” (1996) 2(2) Canadian HIV/AIDS Policy & Law Newsletter 13; D. R. Brock, “Prostitutesare Scapegoats in the AIDS Panic” (1989) 18(2) Resources for Feminist Research 13.26 R. v. Cuerrier, [1998] 2 S.C.R. 371.218
BEYOND DECRIMINALIZATION: Sex Work, Human Rights and a New Framework for Law Reformsufficient endangerment. 27 Other criminal offences that have been used to punish those who knowinglyexpose others to the risk of HIV infection through unprotected sex include criminal negligencecausing bodily harm, 28 and common nuisance. 29 The issue of criminal law and non-disclosure ofHIV-positive status is an extremely contentious and complex. The B.C. Civil Liberties Association,the B.C. Persons with AIDS Society, the Canadian AIDS Society, and the Canadian HIV/AIDS LegalNetwork have all argued against the use of criminal sanctions in cases of non-disclosure. 30There was no consensus among our participants when asked for their views on the appropriateway to deal with STD transmission. Many male street-level sex workers argued that HIV-positive sexworkers should be obliged to inform clients of their health status:Q. So what if we have a sex worker who has AIDS, but is really careful, he wears acondom alwaysA. He should . . . give forewarningA. You should know what you’re getting yourself intoQ. So that’s one aspect that should be made criminal?A. Oh for sure, well if you’re going out deliberately . . .A. Destroying a healthy man’s life, or a women’s life- male street-level sex workersOne male street sex worker, who was HIV-positive himself, agreed that HIV-positive status should bedisclosed:A. I agree. I myself am HIV-positive right and I myself, I agree with it. If somebody doessleep with someone and doesn’t tell them, you’re damn right you should send their assto jail.- male street-level sex workerAnother male street-level sex worker stated that non-disclosure of HIV-positive status should be acriminal offence:Q. Lets say they’re infected and someone asks them “are you infected” and the person says“no I’m not” and they have sex.A. They outright lie?A. I think it should be criminal.- male street-level sex workerSome female sex workers were similarly equivocal:A. [I]t would be nice to be able to determine whether or not everyone has a disease butit is not realistic.A. Yeah. And . . . we are talking about if you come down with HIV and you discover theother person never revealed it, right?A. Then if . . . they used a condom, then so far, you didn’t break the law. They didn’t . . .A. Well, I think that they should have to take that out. That if you have HIV, you shouldhave to tell them. Whether you use a condom, or not. Because it’s just not perfectusing condoms- female off-street out-call sex workers27 Ibid.28 R. v. Mercer (1993), 84 C.C.C. (3d) 41 (Nfld C.A.).29 R. v. Summer, [1989] A.J. No. 784 (Prov. Ct.) (QL), aff’g 73 C.R. (3d) 32 (Alta. C.A.).30 Richard Elliot, “After Cuerrier: Canadian Criminal Law and the Non-Disclosure of HIV-Positive Status” (1999), online: CanadianHIV/AIDS Legal Network .219
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