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In 2014, Stephen Harper’s conservative government passed Bill C-36, the Protection of Communities and Exploited Persons Act (‘Act’), which made “obtaining sexual services for consideration” a criminal offence for the first time in Canada since the Criminal Code was enacted in 1892.
The Act’s title, however, is misleading. According to Debra M. Haak, Ph.D. Candidate and Teaching Fellow at Queen’s University, the new legislation’s main objective is “to denounce and deter prostitution itself,” not to keep sex workers safe.
The Act may have been a conservative initiative, but its tone and substance were shaped largely by radical feminism. Ideologically driven, arbitrarily applied, and empirically suspect, Bill C-36 should be jettisoned by the Liberal government.
The Act is incompatible with Prime Minster Justin Trudeau’s stance on gender equality.
The Foundation of Bill C-36: Radical Feminist Ideology
The preamble to Bill C-36 is infused with radical feminist dogma. For instance, the Conservative government expressed grave concerns about “the exploitation that is inherent in prostitution,” as well as “the social harm caused by the objectification of the human body and the commodification of sexual activity.”
Of import was the need “to protect human dignity and the equality of all Canadians by discouraging prostitution.” First and foremost, this would be accomplished by prohibiting “the purchase of sexual services.”
Similar statements had already been expressed in a 2007 report by the Standing Committee on the Status of Women (‘Committee’): Turning Outrage into Action To Address Trafficking for the Purpose of Sexual Exploitation in Canada.
Under “Gender Inequality,” the Committee agreed with witness testimony denouncing prostitution as “a form of sexual slavery that allows trafficking to flourish and to grow.” To help mitigate the negative impact of prostitution, the Committee recommended that men and women be treated differently under the law.
Prostitutes, it suggested, were not criminals but “victims of sexual exploitation”; therefore, only “consumers of prostitution” should be subject to criminal sanctions.
The same rhetoric was also forwarded by abolitionist feminist organizations in support of the federal government's appeal of Bedford v. Canada (‘Bedford’), a 2010 Ontario Superior Court of Justice case that found the Criminal Code provisions surrounding prostitution unconstitutional.
Feminist interveners suggested that prostitution was “a global practice of sexual exploitation and male violence against women that normalizes the subordination of women in a sexualized form.”
Prostitution, they claimed, “exploits and compounds the systematic inequality of women.” In 2013, leading up to an appeal of Bedford before the Supreme Court of Canada, abolitionists staked out their position clearly: men were “the source of prostitution's harms.”
Once these assumptions were given legal recognition, a paradigmatic shift occurred along gender lines. Female prostitutes were no longer nuisances but innocent victims. Their male clients were depicted as predatory victimizers.
From its inception, Bill C-36 was designed specifically to stigmatize and to punish the primary purchasers of sex—heterosexual men—for behaviour deemed immoral by the state.
Recall that, back in 2014, then Minister of Justice, Peter MacKay, claimed that the government’s aim was to “protect those who are most vulnerable by going after the perpetrators, the perverts—those who are consumers of this degrading practice.”
MacKay’s views aligned perfectly with radical feminist support for asymmetrical criminalization. Advocates of this pure abolitionist model—radical feminists who believe that prostitution is a “one-sided exploitive exchange rooted in male power”—endorse criminal penalties solely for men, the demand-side of the transaction.
Those who supply sexual services—women—are offered exit strategies. Try as they might, conservatives and radical feminists have difficulty explaining why men should be arrested, fined, or jailed for consensual sex.
To justify prosecution, Conservative Members of Parliament have found a creative way to circumvent the dilemma over consent.
In her report titled The Tipping Point, Progressive Conservative Joy Smith (Kildonan – St. Paul, Manitoba) supported the following position: “the prostitute’s consent is irrelevant because you can never consent to sexual exploitation.”
From the abolitionist perspective, the consent of sex workers must be undermined for obvious reasons: one, sex workers’ freedom of choice challenges the assertion that women are universal victims of male oppression and exploitation; and two, men would go unpunished. Thus, a sex worker’s consent is negated to rationalize asymmetrical criminalization.
Evidence Ignored by Feminist Abolitionists
Feminist abolitionists have consistently sidestepped credible evidence that contradicts their self-evident claims concerning the source of prostitution’s harms.
In 2013, when the Supreme Court of Canada—in a unanimous decision—struck down the Criminal Code provisions restricting paid sexual services, it did not blame the demand-side of sexual negotiations. It did, however, take direct aim at the law.
As Chief Justice Beverley McLachlin noted, the prohibitions “do not merely impose conditions on how prostitutes operate. They go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky—but legal—activity from taking steps to protect themselves from the risks.”
The Court also adopted a scientific, rather than an ideological, approach to the issue. It agreed with the trial judge that “indoor work is far less dangerous than street prostitution—a finding that the evidence amply supports.”
Not surprisingly, abolitionist feminist organizations have been unwavering in their position: “The danger to women's security is a function not of the laws constraining prostitution, but of the actions of men who demand the sale of women's bodies.”
Academic studies also help to debunk the myth that prostitution is inherently harmful. Sex Work in Canada, a report issued by University of Victoria Professors Cecilia Benoit and Leah Shumka, noted numerous studies showing that “anywhere from 60-80% of indoor workers report never experiencing any work-related violence.”
In Nevada, where prostitution has been legal since 1971, the exploitation myth has been widely discredited. Of the brothel workers surveyed by sociologist Barbara G. Brents and her colleagues, the vast majority (84%) felt safe in their job, were free to come and go as they please, and were not forced into the trade.
When a recent ballot initiative challenged the legal status of prostitution in Lyon county, Nevada, roughly 80% voted against a brothel ban. In Queensland, Australia, a 2011 report by the Crime and Misconduct Commission acknowledged the conclusions of recent studies: “regulated brothels are the safest and healthiest work environments for sex workers.”
For those who subscribe to the oppression paradigm—the belief that prostitutes can be reduced to a single category of being universally exploited and violated—empirical findings and ethnographic research are irrelevant.
Abolitionist feminists feel that paid sex constitutes violence, so from their perspective, personal conviction should dictate public policy and law. To borrow a line from Stephen Harper, they refuse to “commit sociology.”
The Future of Prostitution in Canada
Because radical feminist ideology informs Bill C-36, men now face incarceration for the “crime” of offering financial compensation for sexual services.
For women who wish to stay in the sex trade, they find themselves in more dangerous, underground environments that directly threaten their health—and potentially their lives. Phoebe J. Galbally, Master of Laws Candidate at the University of Melbourne, puts it succinctly:
"The radical feminist perspective of sex work, as deployed throughout the enactment of Bill C-36, has the effect of undermining the capacity for women to consensually engage in sex work, directly criminalises their status, and provides no alternate means for their subsistence — a factor that is particularly problematic in light of the noted effects of poverty and social disadvantage in generating the need to engage in sex work."
Galbally’s conclusions are supported by Alice Little, a legal sex worker in rural Nevada.
In a 2018 Cato Institute daily podcast, she accuses abolitionists of pimping her: “If you close my brothel, you are giving me no legal option to work and essentially trafficking me into the illegal system. You literally are the person who is endangering me, under the guise of claiming to help me.”
If what Little says is true, that would make Bill C-36, not the demand for sexual services, a form of violence.
Grassroots liberals are already pressuring the present Trudeau government to implement more progressive measures, one being the decriminalization of prostitution.
More importantly, sex workers themselves want Members of Parliament to treat prostitution as another form of labour and to acknowledge that their health and safety “needs to [be] given greater priority by the government.” Members of one lobby group, Prostitutes of Ottawa-Gatineau Work, Educate and Resist (POWER), want the Liberals to scrap Bill C-36, a law they refer to as “harmful and unconstitutional.”
Prime Minister Justin Trudeau faces a political dilemma of his own doing. Dubbing himself a “feminist,” he told CNN’s Poppy Harlow that “a feminist is someone who believes men and women should be equal, and who believes that there's a lot more work to do to get there.”
Trudeau forgets that different branches of feminism disagree over the issue of prostitution. Liberal feminists largely support sex workers’ rights, whereas radical feminists refuse to acknowledge sex work as a form of labour. But if Trudeau sincerely believes in gender equality and equal treatment under the law, it would be hypocritical of him to support asymmetrical criminalization, a legal strategy that, by definition, treats men and women unequally.
If new legislation were passed based on gender neutrality and the legitimacy of consent, Trudeau, along with new Justice Minister David Lametti, would quickly resolve four important issues.
First, they would be sending a clear message that the health and safety of sex workers is being taken seriously. Second, men would not be treated differently under the legal system because of their gender. Third, liberals would reaffirm the position that the state has no place in the bedrooms of the nation.
Lastly, laws would no longer be informed by radical feminist ideologues, specifically those who view an evidence-based approach to legislation as an after-thought.