“ If sex work was decriminalized, we could more easily report the violence that we experience! ”; “ Criminalization makes it so that SWers can’t go to the police! ”; “ There are already laws in place to criminalize the violence we experience without having to rely on the criminalization of sex work. ”

These affirmations are often heard from the mouth of activists advocating for the decriminalization of sex work. This is because we need to convince our opponents of the validity of our demands and that we care about women’s safety. Yet, we know that these are only half-truths; that even with decriminalization, many SWers will never be able to go to the police because they are at the intersection of other oppressions; because the response of legal institutions is often unsatisfactory when it comes to sexual and gendered violence; because the State will always find other tools to criminalize and stigmatize us, especially the most precarious among us.

While Black women theorists like Angela Davis have been questioning the role of the penal system in cases of violence against women for decades, the white, mainstream feminist movement has only begun to ask these questions. In the case of sex work, we believe that these questions could provide important and fruitful reflections to end violence against sex workers and all women. Moreover, the criminalization of sex work has always been based on racist assumptions and an effort to control the migration of racialized women.

When faced with cases of violence, many will choose to report to the police and to resort to the criminal justice system because it is the only way to ensure their safety. We do not pass judgment over these individual cases. We do not believe that the use of the criminal justice system is ever an individual failure. However, we do believe that it is a collective failure when imprisonment and punishment constitute the only answer to violence. 

The theories surrounding the abolition of prison, and more broadly, of the penal system as a whole, can be used to think about the decriminalization of our work in a way that takes into account the plural needs and realities that run through our stories as SWers, both at work and elsewhere.

A Brief Political History of Abolitionisms

Penal abolitionism brings together different theoretical analyses inspired by a vast activist praxis. Gwenola Ricordeau, a researcher of contemporary feminist critiques of the penal system, breaks down abolition into three fields: crime, punishment, and prison.¹ She presents crime as a social reality, constructed by the State and defined by the Criminal Code whose historical and political evolution reflects the mentalities of the time. Punishment consists of all the means taken by the State to punish and sanction a person judged to be criminal, ranging from ticketing to imprisonment. In her work, Ricordeau proposes to question the penal categories as they are imposed by the State, which, according to her, divert our attention from the worst harms perpetrated by the most powerful and the most linked to the relations of domination and structural inequalities; let’s think about white supremacy, environmental destruction, and state crimes.

Many activists and writers analyze the continuum between slavery and the contemporary prison. Robyn Maynard, a Black feminist and Canadian activist for the abolition of the penal system reminds us of the important role of slaves in the official abolition of the institution of slavery, and today, of the role of activists in the struggle against mass incarceration and surveillance of Black people.² After the abolition of the slave trade in the United States in 1865, the passage of the 13th Amendment to the Constitution prohibits slavery, but explicitly authorizes the forced labor of convicted persons. The “ prison-industrial complex³ ” then became a means of socially organizing racial segregation, and “ mass incarceration is, metaphorically, the new Jim Crow⁴ ”, as Michelle Alexander states⁵. The term “ abolitionist ”  is thus carried on in the struggle to abolish the prison system by African American activists as an echo to the struggle of abolishing slavery.

The use of the term “ abolitionism ” is also claimed by some feminist currents to designate their position towards prostitution. Since the 1980s, campaigns and organizations against women trafficking have grown in number and have been massively funded. Jo Doezema has been interested in exploring the historical precedents of today’s abolitionist movements in the campaigns against the “ white slavery ” that occurred in the late 19th century.⁶ She analyzes the mythical construction at that time of the paradigm of the innocent, pure, white victim, and of the evil, foreign trafficker. It would be with the beginning of massive immigration and the movement of women that the panic around the European woman recruited and exploited for sexual purposes in the colonies was born. However, the existence of this phenomenon has never been proven. This panic, combined with moral and public health crusades to end prostitution, provided the impetus for international conventions and proposed laws in the early 20th century to address the problem of  “ white women’s slavery ”. The protocols that were then put in place internationally were based on paternalistic, sexist and racist conceptions; the mobility of women was considered dangerous and destructive to the social order. 

A recent research report supported by the HIV Legal Network and Butterfly, an organization that works with Asian migrant sex workers, found that Canadian immigration policies have historically closed the borders to sex workers by introducing several categories of prohibited persons into the Immigration Act.⁷ For example, the category of “ women and girls coming to Canada for ‘immoral reasons‘ ”⁸ was introduced in 1910. This category was retained and expanded in 1976 to include “ prostitutes, homosexuals or persons living on the avails of prostitution or homosexuality, pimps or persons coming to Canada for these or any other immoral purpose ”⁹. While the criteria of rejection that currently regulate migration are no longer as explicitly based on criteria of sexual normativities and moral desirability, they are mostly couched in the language of public safety.¹⁰ Nevertheless, the racialized figures of the pimp and of the white trafficked woman remain in the white collective imagination and continue to influence sex work policies.

Today, ambassadors against human exploitation use the racist narrative of transatlantic slavery in their call for greater criminalization of clients and pimps. As Maynard argues, these groups 

co-opt the horrors of slavery to justify racist state practices and create conditions that keep Black women in general and Black sex workers, in particular, vulnerable to harassment, profiling, arrest, and violence.¹¹

Hidden behind the anti-trafficking rhetoric is also the racist myth of the Black male rapist and trafficker. Denounced by Angela Davis in her book Women, Race & Class¹², this myth remains alive today. This is evidenced by the abusive conviction rate and the overrepresentation of Black men that are judicialized. In Canada, Black people make up only 3% of the population, but account for over 9% of those incarcerated in federal institutions.¹³ Although provincial prisons do not disclose their racial statistics, the available data shows similar rates as the federal level, and often worse.¹⁴ This stereotype is also reflected in the racialized figure of the pimp. By rehashing dishonest comparisons to slavery, anti-prostitution advocates hijack the discussion of working conditions to voice their moral concerns about sexuality, race and migration. It is millions of dollars that are invested in these organizations¹⁵  who are then invited to the table when the criminalization of our work is discussed.

Criminalizing us to protect us

The conflation of sex trafficking and sex work puts sex workers at risk. In Canada, this has resulted in a patchwork of federal, provincial and municipal laws that aim to target and eliminate sexual exploitation. The supposed goals of this criminal and repressive approach are to protect vulnerable women by prohibiting them from working in the sex industry and by reducing demand through criminalization. In practice, there is very little evidence that these laws protect victims of trafficking. On the contrary, several studies show that criminalization has significant negative impacts on the quality of life of the people that its defenders pretend to “ save ”.¹⁶

In Canada, the criminal code specifically includes a criminal category and some offenses that prohibit human trafficking. According to a Statistics Canada report, between 2009 and 2018, out of 1708 incidents of human trafficking, 97% of the victims are women and girls with a high prevalence of sexual exploitation cases.¹⁷ Such statistics are the result of a very limited definition of trafficking and very little response to abuse in other non-sexual labor sectors such as domestic work or agriculture.

In addition, the criminal code includes specific offenses related to prostitution. Under the Protection of Communities and Exploited Persons Act, it is prohibited to communicate in certain public places¹⁸ to offer sexual services, to obtain sexual services, to profit materially from sex work and to promote such services. From the same report, we learn that 63% of police reports of trafficking involved secondary offenses involving a sexual service related offense. This statistic demonstrates how these laws are deeply connected to narratives that entrench sex work as naturally abusive and how very often the criminalization of human trafficking is primarily used to target SWers. 

The sex industry is also monitored and criminalized by provincial law enforcement’s “ victim rescue ” projects and action plans. In Ontario, Operation Northern Spotlight coordinated by the Royal Canadian Mounted Police and the Ontario Provincial Police has been strongly criticized by sex worker groups.¹⁹ Under the pretext of fighting exploitation, police officers, posing as clients, entered massage parlours and hotels to trap, intimidate, search and arbitrarily detain sex workers. Not only do these operations traumatize and make sex workers more suspicious of the police, but they also do nothing to help the alleged victims of exploitation. Project Crediton, an initiative led by the Ontario Provincial Police Anti-Human Trafficking Investigation Coordination Team, in 2020, did not result in a single charge of human trafficking, yet 7 people were arrested and prosecuted for 32 sex work-related offences.²⁰ 

In addition to federal laws and provincial policies, municipalities are increasingly using zoning and licensing bylaws to target and close massage parlours. In Toronto, many workers have denounced the abuse of municipal bylaws by police forces. For example, some workers have testified that they have been ticketed for locking their workroom door, as many city bylaws prohibit locking any door in massage parlours.²¹ For people who receive clients in their apartments or massage parlours, locking the door is an important way to ensure their safety and to screen clients who come to their door. Some massage parlours in Toronto have also been subject to the most stringent zoning requirements, allowing them to locate only in “ industrial employment zones ”, which are usually reserved for manufacturing, warehousing and shipping businesses. Similar tactics were used in Laval in 2018 to shut down strip clubs, sex shops and massage parlours on major thoroughfares and relegate them to industrial zones.²² These areas are extremely isolated, sparsely populated and poorly lit, leaving workers particularly vulnerable to theft and violence.    

Those who work on the street are also targeted by police officers, as one person testifies: “ They came out of nowhere and stopped me because they said I was crossing on a red light. It was winter, and nobody was on the street, but they gave me a ticket as well. They were very rough, very – very insistent to get rid of us from the street back then ”²³. 

Law enforcement officers use a variety of tools to target criminalized, racialized and marginalized communities, which can prevent them from accessing the justice system:

if they sell drugs or live with people who do, they may fear the risk of trafficking charges; if they have been abused in sex work and are HIV-positive; they may fear the risk of aggravated sexual assault charges for not disclosing their HIV status; if they have precarious immigration status, they may fear losing their status and being deported.²⁴

And so, homeless sex workers, who use and sell drugs or who are HIV-positive are all more likely to have bad experiences with the police – whether directly related to sex work or not – and thus, less likely to press charges when assaulted. This is also the case for our migrant colleagues who are exposed to police repression who act under the guise of saviorism.  

Borders, what’s up with that ?²⁵
Sex trafficking and control of women’s migration

By all means possible, law enforcement is scrambling to judicialize sex workers. Through the constellation of laws, the criminalization of migrant women workers can result in significant penalties: under section 36 of the Immigration and Refugee Protection Act, anyone, including those with permanent residency, convicted of an offense  punishable under federal laws can be imprisoned for up to 10 years and deported. In 2012, the Conservative government reformed immigration law to prohibit migrants who are issued work permits from working in the sex industry, even in legal sectors such as licensed massage parlours and strip clubs, and even if they are non-sexual jobs (cook, janitor, bartender, etc.). The Canada Border Services Agency also plays an important role in controlling the immigration of SWers. Indeed, it has been widely documented that border officials use their discretionary power to deny entry to individuals deemed to be involved in the sex industry, particularly women migrating from Eastern Europe or East Asia, who are often profiled as vulnerable and passive.²⁶

If the anti-prostitution discourse is rooted in xenophobia and racism around white slavery, it is not surprising that the laws surrounding sex work, even today, serve to repress migrant sex workers. In 2001, the Canadian government introduced specific penalties for trafficking in the Immigration and Refugee Protection Act. Contrary to their claim to protect victims of exploitation, these laws rather serve to protect Canadian citizens from migrants seen as undesirable. 

In 2000, as international concern over human trafficking grew, the United Nations General Assembly adopted the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children.²⁷ While this protocol provides a framework for signatory states to implement their own system of laws in terms of human exploitation, it remains unclear as to the definition of sex work. In 2012, the federal government announced a National Action Plan to Combat Human Trafficking. The most recent formula, the National Anti-Trafficking Strategy, allocates $75 million for the period of 2019 to 2024.²⁸ Despite all the resources and money invested in the fight against human trafficking, it is reported that between January 1st, 2006 and July 13th, 2020, the Canada Border Services Agency recorded a total of 8 charges laid for human trafficking and no convictions.²⁹ Human trafficking investigations, profiling and raids rarely, if ever, uncover “ traffickers ”. There is no doubt that these repressive practices and policies are primarily used to maintain a climate of fear among people in a migration context.

We too: victims of criminalization

The Canadian legal model of prostitution is generally justified under the guise of helping victims of sexual exploitation and eradicating the sex industry, which is presented as a perfect example of patriarchy and the exploitation of women. Supported by carceral feminist groups, the preamble to these laws portrays sex workers as victims who must be rescued at all costs from the pimps and clients who encourage this exploitation. 

It is impossible to deny that sex workers experience violence in their work. Moreover, it must be recognized that this violence is gendered, racialized, and class-based: poor, racialized, migrant, indigenous, trans, and street-based sex workers are more likely to experience this violence and to experience more severe forms of it.^{30 31} However, rarely do we question the real capability of the prison and penal model to protect sex workers.

It is a truism that the justice system is ineffective in dealing with gendered violence: in Canada, an estimated 3 out of every 1000 sexual assaults result in a conviction. With a 5% rate of reporting to the police, it is the least reported crime. It is also the only violent crime whose proportion has not decreased since 1999.³²

Such statistics are obviously shocking. Faced with these numbers, various trends in the feminist movement are demanding more justice, new laws, recognition of feminicide as a legal category, a special court, harsher sentences, etc. But the ability of the justice system to deal with this violence is rarely questioned.

In her work, Gwenola Ricordeau shows that not only are victims often revictimized³³ in court, but that the nature of the trial in itself is contrary to the needs of the victims. Indeed, by submitting to the justice system, victims undergo a sort of “ theft of their harm ”³⁴. They will be questioned about the veracity of the alleged acts, and the accused will have every advantage in not acknowledging the harm caused in order to avoid being found guilty. This is often contrary to the victims’ need for recognition of their suffering. Moreover, they are expected to fulfill the role of the perfect victim. For example, poorer women, racialized women, sex workers and women who use drugs are less likely to see their abusers punished.³⁵ 

Even when a conviction is handed down, it does not mean that SWers are protected. In 2020, in Quebec City, Marylène Lévèsque, a sex worker, was murdered by her client. He was on parole after serving a prison sentence for the murder of his wife. His parole officer was aware that he was involved with sex workers and felt it was normal and healthy for him to obtain sex in this way, despite his extremely violent past and the high rates of victimization among SWers. This intervention was defended by the parole officers’ union.³⁶ The coroner’s report, released in November 2021, recommends the use of the electronic bracelet, but does not in any way interrogate the working conditions of SWers and the impact of criminalization on them.³⁷ Thus, the context of criminalization does not prevent dangerous and violent men from accessing the services of the SWers – this is even what was encouraged in this case, and defended by the prison institution! The reason is that sex workers are perceived as collateral victims, supposed to protect other women from violent men by serving as their outlet.

Women’s self-defense is also criminalized when they fight back against acts of violence. Because surely, women do not remain passive. A 2005 U.S. study estimated that 67% of women incarcerated for the homicide of a loved one were first victimized by them.³⁸ For SWers, self-defense is often a reason for criminalization and imprisonment. The case of Cynthoia Brown is particularly telling in this regard. A minor at the time of the crime and forced to sell sex by an abusive partner, she was sentenced to 52 years for shooting a client who had threatened and assaulted her.³⁹ After spending 15 years behind bars, Cynthoia was released, after her case was brought to the media with the hard work of Black Lives Matters activists and was then shared by Kim Kardashian and Rihanna. While the accused was successful in obtaining clemency, the majority of SWers who use self-defense do not receive this media coverage, in part because they are adults or are in the industry of their own volition. In July 2021, Nichole Hover, an Ottawa sex worker, pleaded guilty to one count of manslaughter after being charged with second degree murder.⁴⁰ She was with a client who refused to pay her, claiming that he was unable to reach orgasm. A dispute broke out and Hover’s client became violent. She was sentenced to seven years in prison. While it is unclear why Hover chose not to go to trial and whether she had access to legal representation, the outcome of this case should not surprise us: in Canada, an estimated 90% of accused persons enter guilty pleas.⁴¹ Those held in pre-trial detention are also more likely to plead guilty than those released on bail. Pre-trial detention has been described as a “ strategy to extract guilty plea ”⁴² in some research. Indeed, “ vulnerable people experiencing mental health or addictions issues, cognitive impairments, poverty, or homelessness may face added pressure to plead guilty. ”⁴³

In addition, violence against SWers is often used to push laws that criminalize them even more. The latest massage parlour killings in Toronto in 2020 and Atlanta in 2021 are a few examples. In the first case, the alleged killer of Ashley Noelle-Arzaga was charged with terrorism after police discovered the mysogynistic and violent motives associated with “ incels ⁴⁴”.⁴⁵ These charges may look progressive on the surface; it’s not every day that a white man is charged with terrorism. However, that is not how they were perceived by the community targeted by the outrage. According to Elene Lam, the founder of Butterfly, “ law enforcement is the biggest terrorist [for sex workers] ”.⁴⁶ According to a survey produced by the organization, half of the respondents reported that a law enforcement officer had been abusive, oppressive or humiliating towards them.⁴⁷ Rather than charges of terrorism, sex workers would prefer decriminalization of their work and access to labour rights.⁴⁸ Red Canary Song, a New York-based organization working with Asian and migrant sex workers, echoed this sentiment following the shooting at an Atlanta massage parlour that led to the death of eight women:

We reject the call for increased policing in response to this tragedy. The impulse to call for increased policing is even greater in the midst of rising anti-Asian violence calling for carceral punishment. […] Policing has never been an effective response to violence because the police are agents of white supremacy. Policing has never kept sex workers or massage workers or immigrants safe. The criminalization and demonization of sex work has hurt and killed countless people-many at the hands of the police both directly and indirectly. Due to sexist racialized perceptions of Asian women, especially those engaged in vulnerable, low-wage work, Asian massage workers are harmed by the criminalization of sex work, regardless of whether they engage in it themselves. Decriminalization of sex work is the only way that sex workers, massage workers, sex trafficking survivors, and anyone criminalized for their survival and/or livelihood will ever be safe.⁴⁹

Since it is the same apparatus that criminalizes them, appealing to the police or the entire prison system therefore makes no sense for these women, especially migrant women who live under the constant threat of deportation if their occupation is ever discovered. 

One argument often used to defend the decriminalization of sex work is that abusive clients and pimps could be more easily reported to the police. When you think about how the police and the entire criminal justice system treat victims of gendered violence, you might second-guess the use of this argument. So if not enabling them to go to the police, what would decriminalization do for SWers?

Outlaw poverty, not prostitutes!

In 2020, following the murder of African-American man George Flyod at the hands of the police officer Derek Chauvin, activists across North America began calling for the defunding – or even the abolition – of the police.⁵⁰ At the same time, these activists are demanding that the budget of the police, and more broadly the entire criminal justice system, be reinvested in social and community resources. We think this is a promising proposal to reflect on the decriminalization of sex work. Because what sex workers really need is not more criminalization, but rights and resources.

The decriminalization of sex work would, among other things, allow SWers to have access to labor rights. We believe that access to these regulations would lead to many improvements in our working conditions. These include the ability to demand that employers provide a safe work environment, ban problematic clients, provide the ability to report harassment and violence in the workplace, to obtain compensation in these cases, and the ability to report racial discrimination in hiring. Situations of violence could also be more prevented if clients were no longer afraid of criminalization, as this would facilitate the use of screening methods.

As laws to regulate sex work are rooted in migration control, we believe it is also essential to pay particular attention to the conditions of migrant sex workers in our demands for decriminalization. Even in New Zealand, a country often held up as an example of decriminalization of sex work, migrant sex workers still do not have the right to work legally nearly 20 years after the laws were changed. The fight against sex trafficking is directly linked to Western countries’ efforts to limit migration. We believe that the only solution to the abuse of migrants in the sex industry is to abolish detention and deportation, open borders and grant status to all. This would allow migrants working in the sex industry, or any other industry that circumvents labor rights, to access social protections.

However, legal reforms alone cannot address the different forms of structural violence that sex workers are often at the intersection of. Women, migrants, racialized people, trans people and people with disabilities are all overrepresented in sex work and among the victimized ones. Barriers to traditional jobs, difficulties in accessing decent priced and adequately sized housing, increasing difficulties in accessing free and universal health care, childcare, and more broadly, structural poverty and growing inequalities, are all factors in the increase of violence. These structural barriers mean that a person may be forced to remain in an abusive situation, whether it be violence from a spouse, pimp, or employer. Prison, criminalization, stigmatization and repression are all factors that exacerbate these inequalities and not solutions! If we want to fight violence against sex workers, women and gender-oppressed people, we need to demand more resources, money in our pockets and a roof over everyone’s head. We will take that money out of the same budget that is criminalizing us!