How we define work is complicated enough
without having to consider how we define sex work versus prostitution. Is it
enough to say that work is simply the exchange of services for some sort of
material benefit? Does the exchange require a financial transaction – that
money must change hands? Is work defined by a sustained and consistent
relationship over time rather than an episodic or one time exchange? As Marilyn
Waring has pointed out international organizations and states measuring productivity have historically defined work as requiring an exchange
of money. It is only in the past 20 years that the unpaid labour performed in
the home by women has come to be seriously considered as work that contributes
to a country’s GNP and GDP. The point here is to say that we can define work as
the exchange a physical or mental labour for money, but in reality it is a
complicated social construction. So if what we understand to be work depends on
socially accepted common conceptions then where does this leave sex work and
prostitution?
Prostitution is commonly defined as the
exchange of money for sex or the buying and selling of sexual services for cash
payment. However, it is certainly up for debate as to what is meant by sex. It
is usually assumed that some form of sexual intercourse occurs, but does this
include erotic massage where the purchaser is brought to orgasm or does it
include lap-dancing (and erotic dancing more generally) where the titillation
is anticipatory without orgasm? All can be considered a form of “sexual”
service.
Further to this is the slipperiness of the
notion of reward or material benefit. Money and cash gives a sense of solidity
and evokes the idea of a wage or ‘exchange value,’ but what of those who trade
sexual acts for food, rent, or security? We are not that far removed from a
view of marriage where women provide sexual and reproductive services, plus
private labour, for the support and security of a family wage provided by a
male bread winner. This is at the heart of Fredrik Engel’s, Origin of the family, private property and
the state, understanding of the double oppression of women within the
family structure. It is only in recent history that forced sex in a marital
relationship has come to be legally considered sexual assault or rape.
A brief on the history of the sex industry
in New Zealand points out the stigmatization that comes from naming someone a
prostitute,
The term
prostitute has been used as an identity-tag in ways far exceeding the limits of
other occupational terms. A person who is a teacher or a nurse or a waitress is
understood to have a life and identity outside of their occupations, in ways
that a prostitute is often not. Typically the word prostitute is used in our
society to denote not only an occupation but an identity conferring a social
role and stigma to the wearer of such a tag (New Zealand Ministry of Justice
Part 1: The Sex Industry in New Zealand).
As we follow the language used in the
testimony regarding Bill C-36 we shall see further stigma attached and
associated with the term prostitute. Predominantly this is a lack of consent
and real choice as the noun prostitute is turned into a verb where one is not
only a ‘prostitute’ but is ‘prostituted’ – offered for sexual activity in
exchange of payment (OED). The idea is
that the prostitute as a socially stigmatized woman, whore or ho, is so outside
the norms of society that it is inconceivable that it could or would be freely
chosen. As such all those prostituted must be considered victims and lacking agency.
As an aside it is interesting to note that
over time historically considered “outsider professions” such as dong/dung
collectors, ragmen and garbage scavengers, and those who tended to contagion
and leper colonies have shed their outsider status to be considered sanitation
workers, recyclers, and various forms of medical practitioners and
missionaries. Prostitution has maintained its outsider status as dirty,
untouchable, immoral work.
The response on the part of organized
prostitutes and their allies is to replace the term prostitute with that of sex
worker, “to denote the work and occupational realities of the trade.” It is an
attempt to normalize the exchange of sexual services for money as an
occupational category and just an
occupational category.
The sex worker
provides sexual services as part of a job contract in ways similar to a barber
providing hairdressing services or a doctor medical services. Outside of
working hours, the sex worker, like the barber is a citizen who may also be a
parent, pet-owner, part-time gardener, amateur astronomer, or whatever (Ibid).
United Nations organizations and the
International Labour Organization (ILO) define the exchange of sexual services
for money as “sex work.” This is taken from the UNAIDS Inter-Agency Task Team
on Gender and HIV-AIDS (https://www.unfpa.org/hiv/docs/factsheet_genderwork.pdf UNAIDS
Inter-Agency Task Team on Gender and HIV-AIDS,
HIV-AIDS, Gender and Sex Work),
The exchange of money and goods for sexual services either
regularly or occasionally, involving female, male and transgender adults, young
people and children where the sex worker may or may not consciously define such
activity as income generating
It is also understood that the definition
covers informal as well as formal and occasional as well as sustained
exchanges.
In some instances,
sex work is only a temporary informal activity. Women and men who have
occasional commercial sexual transactions or where sex is exchanged for food
shelter or protection (survival sex) would not consider themselves to be linked
with formal sex work. Occasional sex work takes place where sex is exchanged
for basic, short term, economic needs and this is less likely to be a formal
full-time occupation. Commercial sex work many be conducted in formally
organized settings from sites such as brothels, nightclubs and massage
parlours; or more informally by commercial sex workers who are street based or
self-employed Ibid).
It is a very broad definition of sex work
and links to an understanding of exchanges of physical labour for material
benefit as a form of work. Within it we can see a number of categories of ‘sex
worker;’ those who sell sex for survival and do not define themselves as sex
workers, street walkers which are a mixture
of those who sell for survival and those who are commercial sex workers or
‘self-employed,’ and commercial sex workers associated with brothels, massage
parlours, escort services, or self-employed.
There is also a clear division in how we
view sex work and sex workers which hinges on the idea of consent. Is the work
undertaken because of a ‘free choice’? It can be argued that none of us freely
consent to work. It is a requirement of the system we live in that we sell our
labour for material benefit – we “make a living” by working. From a Marxist
perspective we cannot escape that we are all, or at least 99% of us, are
oppressed because we no longer control our labour and our creative potential.
However, in the case of sex work there is a common perception that the
oppression is acute. It is undeniable that many, predominantly racialized women
and the transgendered, are forced into prostitution because of severely limited
economic opportunities, but also because they are trafficked or prostituted for
the purpose of making money for others; coerced into the work through violence
or debt bondage.
This is where we see the idea of prostitute
clearly in its verb form and we intersect with the concept of “human
trafficking.” Generally human
trafficking is defined as the illegal trade in human beings for the purpose of
commercial sexual exploitation or forced labour. It is considered a modern-day
form of slavery.
The Protocol to Prevent, Suppress, and
Punish Trafficking in Persons, especially Women and Children, the Palermo
Protocol, was adopted by the United Nation in Palermo Italy in 2000 as part of
the UN’s Convention Against Transnational Organized Crime. It became effective
in 2003 and, by 2010, 117 countries had signed on. In the Protocol human
trafficking is defined as,
The recruitment,
transportation, transfer, harboring or receipt of persons by means of the
threat or use of force or other forms of coercion, of abduction, or fraud, of
deception, of the abuse of power or a position of vulnerability or of the
giving or receiving of payments or benefits to achieve the consent of a person
having control over another person, for the purpose of exploitation.
Exploitation shall include, at a minimum, the exploitation of the prostitution
of others or other forms of sexual exploitation, force labour or services,
slavery or practices similar to slavery, servitude or the removal of organs.
The consent of a victim of trafficking in persons to the intended exploitation set
forth shall be irrelevant where any of the means set forth have been used (ILO,
2000).
The purpose of the Protocol is to
facilitate “convergence in national cooperation in investigating and
prosecuting” the trafficking in persons. It does not apply solely to those
trafficking across state border, transnational trafficking, but also to
trafficking within borders, domestic trafficking. In fact, according to the
RCMP, the few recent convictions for human trafficking in Canada have mostly
involved victims who are citizens and/or permanent residents of Canada (RCMP,
2010). Further, while the protocol includes a number of forms of coerced labour
and slavery, according to evidence given to the Parliamentary Standing
Committee on the status of Women (2001, 1; cited in Newman & White, 2012),
“92 per cent of victims are trafficked for the purpose of sexual exploitation.”
How accurate the numbers are is open to question because as an illegal trade it
occurs underground with very limited visibility and reporting.
Canada is a signatory to the Palermo
Protocol and while its track record in dealing with trafficking and traffickers
is not great it has made some changes to the Criminal Code to deal with the
issue. In 2005, changes were made to specifically prohibit human trafficking.
The amendments established the recruitment, transporting, transferring,
receipt, holding, concealment, harbouring and exercising control over a victim
were indictable offences. Provision was made to remove the possibility of a
victim giving consent undermining any indictment. Section 279.02 prohibits the
receipt of a financial or other material benefit from the commission of the
trafficking offence. Section 279.03 prohibits withholding or destroying travel
or identity documents in order to facilitate the commission of trafficking in
persons offence. Section 279.04 define exploitation, for the purpose of
trafficking in persons offences as (a) causing them to provide, or offer to
provide, labour or a service by engaging in conduct that, in all the
circumstance could reasonably be expected to cause the other person to believe
that their safety or the safety of a person known to them would be threatened
if they failed to provide, or offer to provide, the labour or service (Standing
Committee on the Status of Women, 2007). Further to this, in 2010, Joy Smith’s
(CPC Kildonan-St. Paul) private members bill amended the criminal code to
include minimum mandatory sentences for those found guilty of trafficking,
although only for trafficking those under the age of 18.
Why spend this blog post discussing
definitions of prostitution, sex work and human trafficking? My point is that
there are clear distinctions between the terms and this matters when creating
policy and law regarding sex work. The problem with Bill-C36 is that the term
prostitute has been verbed in a way that reflects no possibility of consent and
agency on the part of sex workers. Representatives from the Department of
Justice, including the Minister, and many of the witnesses to the Justice Committee
hearings conflate the terms prostitution and human trafficking which limits the
discussion and occupation to one of victims and the disempowered.
The definition of human trafficking is very
specific about the oppression and exploitation that can be found in the trade.
It also addresses the coercion and exploitation undertaken by pimps and
procurers and recognizes the profits they take or the avails of prostitution.
On the other hand, the conception of sex worker is clearly set up to be used as
a focus for policy to regulate an occupation that is physically dangerous.
Defined as a form of physical work it opens up the occupation to regulation
through health and safety policy and to a policy regime that can be used to
administrate, license and oversee the industry.
My argument is keeping these two terms
separate gives us two distinct categories of practitioner that can be a focus
for harm reduction policies, rather than conflating them under the terms
prostitute/prostitution and legal policy set on prohibition which only serves
to drive the activity and the exploitation underground. Use human trafficking law and policy to
address the exploitative and oppressive aspects of the industry, interdict the
activity and offences of trafficking in persons by charging traffickers and by
supporting the empowerment of those trafficked to exit the industry. Use the recognition of “sex work” as work to
create policies of oversight and regulation to reduce harm and to support sex
worker empowerment and organization for those who choose to be in the industry.
The creation of an administrative and regulatory regime for the occupation will
quickly show up the illegal and exploitative human trafficking aspects. This is
an approach much more focussed on harm reduction than that taken by bill C-36,
much as the modern administration of sanitation and medical trades made these
professions much safer and legitimate forms of labour. This also clearly deals
with the victimization that occurs without defining everyone as a victim
including those who don’t see themselves as victims but rather as entrepreneurs
and business people providing a service.
Sources:
ILO. 2000. Operational indicators of
trafficking in human beings. Results from a Delphi Survey implemented by the
ILO and the European Commission.
Jacquetta Newman and Linda White. 2012.
Women, Politics and Public Policy: The Political Struggles of Canadian Women.
Don Mills, ON: Oxford University Press Canada.
Parliamentary Library of New Zealand. 2012.
Prostitution law reform in New Zealand.
New Zealand Ministry of Justice Part 1: The
Sex Industry in New Zealand
RCMP. 2010. Human Trafficking in Canada: A
threat assessment, executive summary. Available at
http://rcmp-grc.gc.ca/pubs/ht-tp/htta-tpem-eng.htm
Standing Committee on the Status of Women,
2007. Turning outrage into action to address trafficking for the purpose of
sexual exploitation in Canada. Ottawa: Communication Canada, http://www.parl.gc.ca.
UNAIDS Inter-Agency Task Team on Gender and
HIV-AIDS, 2000. HIV-AIDS, Gender and Sex Work. https://www.unfpa.org/hiv/docs/factsheet_genderwork.pdf
Marilyn Waring. 1999. Counting for Nothing: What men value and what women
are worth. 2nd edition. Toronto: University of Toronto Press.
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