PIVOT LEGAL SOCIETYs. 17 (1) Despite anything in a contract for the provision of commercial sexual services, aperson may, at any time, refuse to provide, or to continue to provide, a commercial sexualservice to any other person.(2) The fact that a person has entered into a contract to provide commercial sexual servicesdoes not of itself constitute consent for the purposes of the criminal law if he or she does notconsent, or withdraws his or her consent, to providing a commercial sexual service.(3) However, nothing in this section affects a right (if any) to rescind or cancel, or to recoverdamages for, a contract for the provision of commercial sexual services that is not performed.Many sex <strong>work</strong>ers supported this type of provision, reasoning that individual <strong>work</strong>ers must dictatewhat sexual services are provided, <strong>and</strong> to which clients. The <strong>New</strong> Zeal<strong>and</strong> PRA provision set out abovewould be an appropriate addition to the ESA or to other provincial statutes that may be enacted toregulate prostitution once the criminal laws have been repealed.Control over services providedCanada’s criminal law explicitly protects an individual’s right to determine whether they wishto engage in sexual activity. Section 271 of the Criminal Code defines engaging in sexual activitywith another person without their consent as sexual assault. Section 273.1(2)(c) states that consentmust be received from the person who will be engaging in the sexual activity; consent is not receivedwhere a person is induced through abuse of trust, power or authority. Where an employer “induces”an employee to provide a particular sexual service, or threatens an employee who refuses to provideservices, the employer could be prosecuted for violating the criminal law.Section 273.1(a) states that sexual consent is not obtained when the agreement is made by thewords or conduct of a third party. Consequently, an employer cannot provide consent on behalf of asex <strong>work</strong>er. Because of these provisions of the Criminal Code, all sex <strong>work</strong>ers have the right to withdrawconsent at all times. It is, therefore, imperative that employers respect the <strong>work</strong>er’s right to withdrawconsent to perform sexual services. To be consistent with the Criminal Code, this respect must beobserved in <strong>work</strong>place policies <strong>and</strong> practices.<strong>Sex</strong> <strong>work</strong>ers felt that individual <strong>work</strong>ers should have complete control over the services thatthey provide to clients. However, there are many situations where they are deprived of this control.First, many employers do try to dictate what services are offered to individual clients, although theyclearly do not underst<strong>and</strong> that this practice is illegal. Second, because of their circumstances – fearof violence, their vulnerable immigration status, or their poverty – many sex <strong>work</strong>ers are unable tocontrol the types of services they provide.With respect to employer’s asserting control over the sexual services their staff provide one sex<strong>work</strong>business owner described the following logic:A. You really have to break it down, into what’s allowed <strong>and</strong> what’s not allowed, so youdon’t have all the different shades of grey. So it just comes down to the sort of fairness<strong>and</strong> equality, <strong>and</strong> it’s – it’s not about – I mean, okay, you want to talk about nipples?Some women have very sensitive nipples. Some women don’t. Some women have saidto me, “Absolutely not, I just absolutely would not be able to st<strong>and</strong> that.” But thenI have to say, “Well, I’m sorry, you can’t <strong>work</strong> here.” Because I can’t say to 30 othergirls, that you are better than they are. Um – so I mean, some things again on theface of it, can seem really unfair. Well, if that really bothers a woman, why do youmake her do that? Why? Because I can’t tell thirty or forty others, that they have to,<strong>and</strong> not her. Can I tell them all they don’t have to? Well, no. Because there’s very littlewe allow a client to do in that room, <strong>and</strong> we’ve decided that the sucking of a breast, isnot a health risk. So therefore it goes. Given our competition that is offering barebackblowjobs, am I asking too much of you to allow a client to suck on your breast? Um90
BEYOND DECRIMINALIZATION: <strong>Sex</strong> Work, <strong>Human</strong> <strong>Rights</strong> <strong>and</strong> a <strong>New</strong> Frame<strong>work</strong> for Law Reform– so . . . Would I enjoy a client sucking on my breast? No. For the amount of moneyI charged? Did I let it go? Yes. Given the alternatives <strong>and</strong> the other ways to make aliving. So, one of the things that I take really important, is the consistency of rules<strong>and</strong> their consistent application amongst all staff. And it can sound really crass, tostart saying how you write it down. And that’s just one example of that, I guess it isjust a little bit funny at the same time, to put it so bluntly. But, the alternative is tohave all different rules for different people. Well, the really, really fucking pretty girlsthey don’t have to give up quite as much of themselves in the room. ‘Cuz they don’treally have to, they can just lay there <strong>and</strong> look good.- female massage parlour owner, former sex <strong>work</strong>erThe same business owner described how there are more extreme cases in which other business ownersrequire their <strong>work</strong>ers to provide services that they do not want to perform, <strong>and</strong> under unsafe circumstances:A. At the other end of the spectrum, you have some very, very evil employers. Like theone I am describing. Where they’ll y’know, tell their staff this is – this is what youneed – you need to do to <strong>work</strong> here. But yeah, there’s this other big grey area, wherethey don’t actually tell their staff that they have to do these things. But it’s prettyobvious who risks their health for clients. And who gets the bulk of business. So theywill allocate their business to the girls that are giving up the most. ‘Cause that’swhat’s making the clients happiest. Or there’s the other people who don’t condone it<strong>and</strong> don’t openly say, no I don’t want you to do that here. But at the same time, theyare like well, the girl is going to be offering that anyway, she may as well be doingthat on my – my watch. Or, well she is going to offer it anyway, that is her choice.And she just happens to <strong>work</strong> for me. Or, y’know, there’s a very sort of just ambivalentattitude towards it? Y’know, like I can’t save the world type of attitude. Well, it’slike, yes you can! If – if everyone employs st<strong>and</strong>ards of what is acceptable <strong>and</strong> whatisn’t acceptable, then it would even the playing field for – for all sex <strong>work</strong>ers. But forthe ones that want to operate safely, it’s really hard to compete with those who don’t.And then you end up with people who want to operate safely but they end up not ortaking chances, or maybe extending their boundaries a little bit. Maybe not offeringeverything that I gave you on the previous list, but maybe saying, well god, a clientthought I was really cold <strong>and</strong> clinical, maybe I should neck with my clients <strong>and</strong> okay,maybe I will just let them put their fingers in me, then. Or y’know, thinking wellmaybe I could just give up some of my boundaries so that I could get return business orrepeat business. And that’s – that’s where I see the problem – is all these shades of grey.- female massage parlour owner, former sex <strong>work</strong>erCurrently, some establishments specify that they offer particular services to every client, such as a“Girl Friend Experience” or “GFE.” This industry term indicates that more intimate sexual servicesare offered, such as kissing. One employer described how her <strong>work</strong>ers must be willing to provide aGFE to clients in order for her to employ them:A. When we interview, when I sit down with them at the very beginning, I get someidea, I have a form that I fill out, like an employment form, <strong>and</strong> I ask them youknow what their rules are on this that <strong>and</strong> the other kind of thing, if they havecertain rules. And I may say to them well, you know the way you want to businessor the way you’re used to it from somewhere else probably isn’t going to fit with mystyle. My business is known for offering what they call “girlfriend experience” <strong>and</strong>that tends to be a more relaxed, open kind of encounter that a man may have with a91
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