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

PIVOT LEGAL SOCIETYSome respondents, including the sex workers quoted below, stated that in order to protect both clientsand sex workers, commercial sex without a condom should be illegal:A. And a lot of men like to pay extra, for y’know, unsafe sex.A. That . . . should be illegal . . .A. Because if you are a sex trade worker, you are having sex with lots of different people,or getting them off or whatever you want to call it.A. Right.A. And so, yeah, you should . . . be responsible and you should do your business.Q. So who should be penalized for offering it? Should it be the john, or should it be thegirl for accepting it?A. Both, both, definitely both.- female off-street out-call sex workersMany sex workers felt that disclosure of HIV-positive status was an important prerequisite toconducting business as safely as possible. These views are inconsistent with the recommendations ofthe Canadian HIV/AIDS Legal Network (the “Network”), which has argued that criminalizing HIVtransmission or exposure would be counterproductive, and would further stigmatize people livingwith HIV/AIDS. The Network argues that the possible benefits of criminalization are outweighed bythe social and economic costs of applying criminal sanctions that are less effective than public healthmeasures. The Network noted that, although the use of criminal sanctions might be seen as ‘gettingtough’ in the fight against AIDS, it would have little real impact on transmission rates, may deterpeople with HIV/AIDS from getting tested, and would divert attention and resources away frommore effective public health initiatives. 31 Given the complexity of this issue and the limited time dedicatedto it in this project, further consultation and dialogue with sex workers is recommended.Criminal law recommendations1. Repeal s. 210, 211, 212(1) and 212(3) and 213 as set out in Pivot’s 2004 report, Voices forDignity. 322. Provide education to police and improve police accountability so that sex workers receive equalprotection when they are victims of crime.3. Ensure more proactive enforcement of criminal assault laws by police and Crown prosecutors inorder to protect sex workers from violence.4. Educate sex workers and employers about the potential for assault laws to be used to protect sexworkers who are coerced or forced to engage in sex with an employer or prospective employer.5. Educate sex workers and employers about the rights of sex workers to determine what services theyprovide and to whom.6. Educate employers about the Criminal Code interpretation of consent to sexual activity and how itaffects an employer’s expectation of the duties performed by sex-worker employees.7. Do not criminalize youth who are involved in the sex industry.31 “Criminalization: Does It Make Sense?” (March 1999), online: Canadian HIV/AIDS Legal Network .R. Elliott, “Criminal Law and HIV/AIDS: Final Report” (1997), online: Canadian HIV/AIDS Legal Network & Canadian AIDSSociety .32 Voices for Dignity, supra note 5.220