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

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PIVOT LEGAL SOCIETY88other profession that, when you go in to be a secretary, you have to give your boss ablow-job. You know, that is a form of harassment. You know . . . and it’s no differentfrom escort to massage and so forth . . . it’s all the same. And I don’t think that’s evergoing to change.- female off-street out-call sex workerAnother sex worker described having a similar experience: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 willwant you to get into the room. And like you know they will asking you to wear dress,skirt usually. What happens is they say, you know I am the test. And the test is youhave to have sex with the guy [the owner] . . . . With the manager. Usually, whathappens is some of them, they have managers. They say manager but I think that’sjust a pimp. Usually we call them dealers because they do not treat the girl as aperson. They just called dealers. Doing the deal.Q. Right. So they make you have sex with the dealer?A. That’s right. Because like some bigger massage parlours they have two dealers. Theyput them A or B. You know what I mean?Q. And with the dealer or with the owner that you have to have sex with, do you use acondom with them?A. Well, usually yes if you know. Because before I go, [name omitted] gave me tips. Youcan ask for it, but if you do not ask for it, they make you do it without a condom.- female off-street in-call sex workerThe requirement that job applicants have sex with the business owner or manager as part of the hiringprocess could lead to criminal charges against the employer/manager. They could be charged withsexual assault on the grounds that consent was obtained by an abuse of their position of authority. 12Such conduct could also be prosecuted as extortion under the Criminal Code if a court accepted theargument that there was a “threat not to hire” if the worker did not consent. 13The data gathered from this group of sex workers reinforces the importance of the protectionsprovided in the ESA for job applicants. The existing ESA provision relating to full and honest disclosureabout the nature of the employment is important for sex workers who need to be clear aboutthe nature of the establishment and the expectations once they are on the job. Also these interviewssuggest that people involved in the sex industry need a much better understanding of criminal sexualassault laws. Both employers and workers must be educated to understand that requiring job applicantsto have sex with a manager or owner as a condition of hiring is a criminal offence. Police shouldbe educated about the existence of such practices and be given the mandate to provide the sameprotection to sex workers as other victims of sexual assault.Age of workersMany sex workers expressed concern about the involvement of children and youth in prostitution.For example, the following project participant described her concern that if sex work becomesmore socially acceptable, it may have the unintended consequence of making it more acceptable forchildren and youth to be involved.12 CCC, supra note 1, s. 273.1(2)(c).13 See R. v. Davis, [1999] 3 S.C.R. 759, 179 D.L.R. (4th) 385.
BEYOND DECRIMINALIZATION: Sex Work, Human Rights and a New Framework for Law ReformA. That’s a fear of mine though too, that if things are decriminalized, that, y’know,people are going to, is the attitude going to be – oh it’s been decriminalized, it can’tbe that bad? And there are still a lot of not good things about it. Yes there are womenwho do it, women and men who do it, because that is what they want to do and theymake good money and dah, dah, dah. That’s fine, because that’s their choice. Butthere is still a lot of people that are sold into the trade from different countries, whoare recruited from malls and youth centres. Who are 12, 13 and 14 years old.- female off-street out-call sex workerIn terms of employment standards and the hiring of youth and children, the ESA says that a personmust not employ a child less than 15 years of age unless the person has obtained the written consentof the child’s parent or guardian. 14 However, the Criminal Code supersedes this legislation. 15 Pivot’sreport Voices for Dignity 16 called for the preservation of s. 212(2) of the Criminal Code, whichprohibits procuring a person who is under 18 years of age, and s. 212(4) which prohibits obtainingor attempting to obtain for consideration the sexual services of a person who is under the age of 18years. 17 As long as these Criminal Code section remain in force, the minimum age for hiring a personto work in prostitution will be 18 years. Jurisdictions such as New Zealand and the State of Victoriain Australia that have decriminalized or legalized sex work have also set the legal age for employmentin sex work at 18 years.Nature of employmentEmployment contractsAs a result of the current criminal laws, sex workers are limited in their ability to enter into writtenemployment contracts that disclose their true professional responsibilities. For example, sex workers inmassage parlours do not normally have contracts that state they will engage in sex work. This deprivessex workers of bargaining power and control over their working conditions. If sex work is decriminalized,employment contracts could detail the full terms and conditions of the job – apart from the actualsexual services they perform, a consequence of the Criminal Code provisions regarding sexual consent.Employers and employees in the sex industry ought to be able to make clear and transparentemployment contracts that establish hours of work, wages, benefits, workplace conditions, andduties to be performed. However, employers cannot bind their employees to contractual obligationsregarding the types of sexual services they will provide to individual clients because all sexual activityhas to be consented to by both parties on a case-by-case basis, and can be withdrawn at any time.Therefore, employers and sex workers can enter contractual arrangements regarding many aspects ofthe job, but cannot create a binding contractual obligation to offer certain sexual services to any orall clients in the future. In accordance with the fundamental right to sexual self-determination, sexworkers must always maintain the ability to withdraw consent and maintain control over their sexualactivities.New Zealand specifically addresses this issue in the Prostitution Reform Act 2003 (the “PRA”). 18Section 7 permits contracts for provision of commercial sexual services:s. 7 No contract for the provision of, or arranging the provision of, commercial sexual servicesis illegal or void on public policy or other similar grounds.However, S. 17 states that a person may, at any time, refuse to provide commercial sexual services, even ifthey entered into a contract to provide those services:14 ESA, supra note 4, s. 9 (1).15 CCC, supra note 1, ss. 212(2), 212(2.1), 212(4).16 Voices, supra note 3.17 CCC, supra note 1, ss. 212(4).18 Prostitution Reform Act 2003 (N.Z.), 2003/28 [PRA]. Available online: .89
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