Out of the Frying Pan, Into the Fire: Sex Work/ers in the Courts and in Research

Out of the Frying Pan, Into the Fire: Sex Work/ers in the Courts and in Research

We presented this paper at Hands Off!, a meeting for sex workers and allies in Cape Town, South Africa, in October 2015. Amy travelled to Cape Town for the meeting, and Shawna skyped in for the presentation and discussion period that followed.

In revising the presentation, we decided to leave in our notes indicating which one of us is “speaking.” As you will see, this format is necessary because our different perspectives as sex worker and academic are kind of the point of the whole presentation.

Introduction

This paper is about power and dis-empowerment for politicized sex workers who collaborate with lawyers and researchers to decriminalize sex work, and to better the lives and work of sex workers. We begin by introducing and providing some context for the successful Canadian challenge to prostitution laws, Bedford v. Canada, 2010; Canada v. Bedford, 2013.

Amy then talks about her experience as a plaintiff in this legal challenge—including lessons learned—and we both discuss strategies for the development of more empowering (for sex workers) relationships between sex workers, lawyers, and researchers in future work.

It feels like a dream…

AMY:

So here I am.

In my hotel room.

It is 5am on December 20^th, 2013, and I am unable to sleep.

We are heading to the Supreme Court of Canada in a couple of hours to hear their decision. It feels like a dream. So many people: lawyers who argued the case in the courts; countless witnesses; sex workers; allies; all present. All having made this day possible. And here we are; hearing the decision, embracing each other, crying, happy.

If I had of known what the seven plus years of court battles would do to my life, I would have run screaming in the other direction……..

…Just kidding. 🙂 But really, it’s almost surreal….Yet I did it; I learned things; and I am here to talk to you about it.

So without further ado….

There is a cultural backdrop that gives shape to the history of Canada’s prostitution laws, with themes that are shared across the globe. Canadian laws around prostitution outdoors are based on an idea of what “community standards” are. These are nuisance laws; and they deem those who work on the street as not part of the community, even if they are in fact living in the communities where they work—which they most often are.

These types of laws rely on displacing sex workers so they are never imagined to belong to any community. They also appeal to some righteous (and faulty) notion of protecting “the children,” framing sex workers as a threat to the family, suggesting they can’t therefore be mothers. (And if they are mothers, they are certainly bad mothers.)

The demonization of prostitutes has been secured through the images of the street worker as diseased, addicted, female, disruptive, and unsightly to the public gaze. Not only does this lack complexity of understanding of sex workers’ lives, it also feeds into corresponding ideas of what an acceptable sex worker should be. The fact that there even needs to be an ideal acceptable sex worker is problematic in that it moves imagery indoors, away from the public eye.

Briefly, I would like to give you a snapshot of sex work activism in Canada around the time the case was conceived. Of course, since the beginning of whorestory, we have many groups and individuals who have been advocating for change, taking to the streets for decades.

In a formal sense, though, sex work activism, in terms of organizations in Canada, was limited to major cities in certain provinces (such as Montreal, Vancouver, Toronto). Very few groups were funded, and those who were funded were underfunded. This made launching legal initiatives or certain types of social and political actions very challenging, but not impossible; we certainly worked with what we had.

In a climate of stigma and social repression, tensions existed which made cohesiveness within activist communities and organizations very difficult. Social media was also in its infancy. Getting the word out looked very different from today and was not necessarily reaching as many people, especially people in remote and rural regions.

As the case evolved so did the movement, which brought with it new possibilities, as well as challenges.

Constitutional Challenge to Canada’s Prostitution Laws

SHAWNA:

Using the Canadian Charter of Rights and Freedoms, Amy and her colleagues Valerie Scott and Terri Jean Bedford challenged three prostitution-related laws in the Canadian Criminal Code on the basis that the laws violated sex workers’ rights under the Charter. The three laws criminalized working in a brothel, or “bawdy house”; living on the avails of of prostitution; and communicating publicly for the purposes of prostitution. These laws are usually referred to in activist settings as Bawdy House, Living on the Avails, and Communicating.

They challenged these laws because they prohibited sex workers from protecting themselves by

• working indoors, out of their own apartments, or in groups as a means of keeping safer (Bawdy House);
• hiring drivers, business managers, and security personnel to protect them (Living on the Avails);
• living with and having relationships with persons such as romantic partners, dependent children or elderly parents (Living on the Avails);
• communicating clearly and precisely with clients, and being able to do this in well-lit, populated, non-industrial areas (Communicating).

AMY:

The case was launched around 2007 and went through a series of court levels. At every level, both the provincial and federal governments appealed, largely on the basis that the laws were justifiable for the public good and that the state was not responsible for upholding the rights of “criminals”.

Ontario Superior Court

AMY:

On September 28^th, 2010, provincial court Justice Susan Himel of the Ontario Superior Court deemed all three laws unconstitutional and struck them down. In her decision, Justice Himel wrote, “By increasing the risk of harm to street prostitutes, the communicating law is simply too high a price to pay for the alleviation of social nuisance”; and “I find that the danger faced by prostitutes greatly outweighs any harm which may be faced by the public”.

Court of Appeal for Ontario

AMY:

March 26^th, 2012, the Court of Appeal for Ontario struck down Bawdy House, modified the ruling on Living on the Avails to make exploitation a criminal offence, and reversed the decision on Communicating, holding that the effect on communities justified the limitation. Two of the five judges dissented, stating that the Communicating Law was not justifiable.

This was a political flash point in the sense that the Communicating Law struck at the heart of the public imperative to maintain the discourse on prostitutes as public nuisance, a nuisance requiring heavy-handed social control.

Our community was left in crisis, as we knew that keeping the Communicating Law on the books, as the appeal court had done, would essentially render the case all for naught. At this time, there was a lot of anger, upset, and finger pointing: a sort of whirlwind of lateral violence. People were also upset at the lawyers and the talking heads who were setting the agenda and dominating media lime-light with trivializing commentary. Many were wondering what would happen with the case.

The good news was that political momentum was building over these few years. In the province of British Columbia, the Downtown Eastside Sex Workers United Against Violence Society (SWUAV) and Sherri Kiselbach were granted standing to launch their own case less than a month after Himel’s original decision. This group was particularly focused on the rights and well-being of street based sex workers, especially those impacted by the Communicating Law.

Supreme Court of Canada (SCC)

AMY:

On October 25th 2012, the Supreme Court of Canada agreed to hear the appeal The SCC also heard a cross-appeal by us on the Court of Appeal for Ontario’s decision to ban Communicating as well as the modified ruling on Living on the Avails.

On December 20, 2013, in a land mark 9-0 decision, the SCC, struck down the three prostitution provisions from the criminal code. In their decision, SCC Justices wrote:

“Parliament has the power to regulate against nuisances, but not at the cost of the health, safety, and lives of prostitutes.” (Canada (Attorney General) v. Bedford; page 10)

But the SCC suspended its decision for 1 year. They noted that their decision on the suspension was not an easy one to make. In effect, however, the suspension left our status as criminals enshrined in law. It’s quite difficult, don’t you think, to advocate for a changing landscape while still deemed a criminal on the books? And it’s quite ironic that such terrible charter violations could be noted to have taken place, and yet the priority remained that trumped all: maintaining appearances of order, lest prostitutes run a muck.

Canadian Government’s Response to SCC Ruling

SHAWNA:

In June 2014, the ruling conservative government proposed controversial Bill C-36, the Protection of Communities and Exploited Persons Act. In December 2014, the bill became law. Framed as a change in the underlying intent of Canada’s prostitution laws from nuisance reduction to the elimination of prostitution entirely, the new laws were supposedly developed to do as their title suggests.

However, the new laws criminalize public communication for the purposes of prostitution; criminalize the purchase of sexual services; criminalize third parties by prohibiting materially benefiting from another person’s sex work; and criminalize the advertising of sexual services. In effect, it was the same old laws expanded and reinvigorated in new language.

Pro-decriminalization activists were shocked and appalled, for obvious reasons.

AMY:

The Protection of Communities and Exploited Persons Act was far worse than my colleagues and I could have ever imagined.

Peter Mackay, Canada’s former justice minister, announced in the media after the bill was tabled “The purchase and sale of sex has never been illegal in Canada. That changes today.” How revolutionary…

SHAWNA:

Even some of the prohibitionists who spoke against Amy and her colleagues in the hearings leading up to the bill becoming law were unhappy that the overly broad nature of some of the new laws would still catch and criminalize people who sell sex {AWCEP submission} not just those who purchase it. That said, they still supported the laws.

The Personal Side: Amy’s Experience as a Plaintiff

AMY:

Somewhere around 2006, the man who ended up being the lead lawyer in our case needed a currently working sex worker to be one of the plaintiffs. We arranged to meet in a coffee shop, and he gave me an overview at this meeting of what the case was going to be. In doing so, he detailed some of the risks that I could experience personally.

I know now that there were more questions I should have been empowered to ask him. I suppose I felt grateful and excited that a lawyer would be interested in taking on a case like this pro bono, to challenge laws that we had been fighting and speaking out against for decades.

There were so many issues unaccounted for. For example, my last name is so distinct and, of course, came to be plastered all over the internet—this was one of the causes of my family disowning me. Every rental application I filled out became a source of stress and anxiety. And then there was the loneliness and isolation I would experience as the case unfolded. Also, a lack of community support {but amazing individual sex workers, like Valerie, who were there for me in so many way}. Going forward, these and many other issues have an ever present impact on my life even today.

There are power dynamics that exist when you get involved in legal proceedings. The lawyers know the law and the inner workings of the system; as a plaintiff, you are at the mercy of your lawyer/s to inform you of what’s going on.

Amy’s 8 Lessons Learned

AMY:

If you are a sex worker considering getting involved in a legal case, here is some advice for you, based on my experience.

1. A court challenge like this can take an emotional toll on those who take them on. You will need a strong network of supportive community; this should include specific mentors, and the ability to debrief about experiences.
2. You will also need resources both personally, and from the community you represent. By “resources” I mean both time and money. Being an appellant in a case like this can mean time off work, health problems, family conflict, loss of friendships, difficulties securing and maintaining housing, and being overwhelmed by the scrutiny of media. Organizations and allied stakeholders must lay the groundwork to anticipate and respond to these needs in the planning stages of a case.
3. In launching any court challenge, you need to anticipate the potential role and influence of very well-funded prohibitionist movements championing the “End Demand” agenda and its impact on the social and legislative process. In particular, when we consider complicating factors such as, in my case, the stay of a decision, which allowed power players to swoop in and set the political agenda, strategizing around such possibilities is key in developing a politically informed plan of action.
4. You must also think through the power dynamics in terms of the legal system and legal professionals who get involved in these cases. How do we make it different?
5. All social movements, all activist communities, have their challenges. Any sort of movement toward addressing social/legal changes needs to anticipate and respond to very real community tensions and gaps of communication that exist. This is where, for example, having point people in paid positions, who are respected within the community and sensitive to these difficulties, can help to facilitate healthier communication; that is, so people in the community might feel more up to date on what’s going on. Potential conflict and arising concerns can be addressed along the way.
6. There is also the issue of ensuring that under represented voices, Indigenous communities, trans people, street-involved folks, migrant workers, people who use drugs, and those working or living in rural communities are also engaged. These community members are often excluded from activist circles, are impacted by the laws differently, and contend with a lack of resources, which can be a barrier to effective mobilizing.
7. In addressing these pieces, there is an opportunity to think through issues of representation. In the process of getting sidelined and strong-armed by lawyers and policy makers, we can fall into the trap of respectability politics. It is a painful reality; the struggle prostitutes face to be acknowledged as citizens under the gaze of a whorephobic culture. It can and often does manifest as shame and the consequential erasure of those silent leaders who have been working in the trenches to support their colleagues to live and work in greater safety.
8. Developing legal funds and instituting planning boards and decision-making bodies made up of community members to help give shape to any such possible challenges is key, or we end up replicating the same sick process that got us here in the first place—one based in top-down power, colonialism, and the tyranny of professional elitism.

Sharing Power: Lawyer-client Relationships

SHAWNA:

Amy has already discussed some of the negative relationships that can develop between sex workers and legal experts when SW are not treated as partners in the initiatives undertaken in their name/in which they are plaintiffs.

This does not have to be the case. The western Canadian city of Vancouver’s Pivot Legal Society brought its own decriminalization case to the courts, and they partnered with the Downtown Eastside Sex Workers United Against Violence Society {SWUAV} to appear before the SCC as an intervenor in Amy’s case.

If you check Pivot’s website you can read extensively and watch videos about Pivot’s relationships with sex workers in Vancouver. You will also see that Pivot’s advisory board includes sex workers, and sex workers routinely travel, appear, and speak as experts alongside Pivot lawyers.

If sex workers need to be plaintiffs in decriminalization cases; you/they can and should also be partners. In order to make this so, you/they must be recognized as experts in your/their work and then included in every part of the process of building a case, and as the case unfolds – in the courts AND in the media.

Sharing Power: Good Research Required

SHAWNA:

Such sharing of power is also a necessity in anti-oppressive and anti-colonial research. I trust none of us is naïve enough to believe that whore stigma and whorephobia will remain outside the doors in any court challenge to sex working laws. What the Canadian court documents demonstrate, however, is that SOME judges can find their way through the prohibitionist rhetoric and its accompanying skewed research if we provide the proper tools.

This is why good research, developed via good research relationships between sex working and non-sex working members of research teams, is absolutely critical.

This good research needs to be published in accessible reports—online via research and sex working community websites—AND written up in academic articles so that when lawyers and judges set out to establish lists of “experts” to speak in hearings, they find this research and these researchers.

Such research must be developed with sex workers from beginning to end. Researchers, this means there can be no developing research questions and getting ethics clearance first. We must consult with (and LISTEN to) sex working communities first, develop research questions and methodology in the context of these initial relationships, THEN apply for ethics clearance and conduct the research. We must then continue to consult with sex workers as we write up the research.

Some sex working groups already have advisory boards (SWUAV, for example) or executive organization (SPOC, for example). If you don’t already have relationships with them, start here and be open and honest about your intentions, who you are professionally, and your politics. Sex workers have been treated very badly by researchers over the years.. It is way too common for sex workers to have their personal or professional histories extracted in research, then have researchers go away and do what we want with research without reporting back or involving our sex working research “subjects” any further.

Research Relationships: Power and Money

SHAWNA:

It bears repeating that we need good research because policy developers and lawyers look for research as well as consulting with stakeholders when undertaking work to develop or reconfigure prostitution-related laws and policies. Those of you familiar with academic research will know already that traditional research structures and methodologies do not necessarily facilitate appropriate power sharing. It is still all too common for a university-based researcher to be understood as a study’s “Principle Investigator,” and all others associated with the project line up—on paper—under her in an established methodological hierarchy.

For example, non-scientist academics in Canada are required (i.e. it is part of our jobs) to apply to the Social Sciences and Humanities Research Council of Canada, or SSHRC, for research funds. SSHRC guidelines state that applicants must be affiliated with a university, college, or certain kinds of not-for-profit organizations. Other titles/roles, such as co-applicants and collaborators, are also assumed to be university or college-affiliated. This translates into funding policies that cover only travel and subsistence-related expenses for those involved in SSHRC-funded projects (SSHRC, April 2015).

Like science-based granting agencies, SSHRC researchers are required to abide by the Tri-Council Policy Statement on Ethical Conduct for Research Involving Humans. The most recent version of this policy statement is known as TCPS2 (2014). TCPS2 encourages collaboration between researchers and community partners, advocates elaborate consultation with those involved in research (TCPS2, article 4.7, p.53), and notes “Building reciprocal, trusting relationships will take time,” when working with Indigenous communities (TCPS2, chapter 9, p.105). I would argue such attention to relationship building benefits researchers working with any marginalized communities, especially those who have been mistreated and exploited by researchers in the past.

So, SSHRC does not describe a role for a Community Consultant in the hierarchy of those who manage money and apply for grants. But TCPS2 says ideally we should have Community Partners or Consultants. Anti-oppression, anti-colonial, and anti-racist research guidelines are even clearer on these points: reciprocal relationships, trusting partnerships, and prolonged community collaboration are integral to conducting this kind of research.

However, neither SSHRC nor TCPS2 includes any directive to pay for Consultants’ time.

This is a problem because academic researchers are paid salaries for the work that we do.  If a community member works with us to develop and conduct a research program, there need to be policies and guidelines in place that enable us to pay them for their time when they meet us in their home communities, and when they travel.

No matter what I do as a university-affiliated researcher—whether I am travelling to speak at a conference, or working in my home community—I am being paid for my time as well as any travel or food-related expenses. Equitable pay for non-academic members of research teams is something I have had finagle in a variety of ways. It is embarrassing to me to have to do so, and it is incredibly awkward to explain to community members why and how this is the case.

If anyone out there has the power to fix this easily, please, please do so! Because such roles and pay guidelines need to be built into our original budgets in our grant applications. Otherwise, the partnerships required for ethical research are inequitable from the get go, and they are not sustainable over the long term.

Research Relationships: 3 Guidelines for Sex Workers

SHAWNA:

To the sex workers out there, if you don’t know already, there are a few things you should know about research and researchers when it comes to their time, your time, and the money that can/should be paid for your time.

1. Researchers who have jobs at universities, law firms, government offices, hospitals, or research labs get various kinds of grants of money to do their research. Some of us pay ourselves out of our grant money – this is often the case in more capitalist countries – and some of us receive a salary and the grant money is strictly for research – this is often the case in more socialist countries.
2. What this means for you is no matter when one of these kinds of researchers approaches you, they are being paid for their time. Their salary covers all the work that they do with you and elsewhere. They should, therefore, offer to pay you for your time; if they don’t offer, you should not hesitate to quote a price for your time, as you would if you were working with anyone else.
3. Researchers who are students rarely have much money to do research with – but you should ask them how they are funded, just to see. Sometimes students get money for research, but they usually have to live off of their research funds, too, and they usually don’t have much money at all. What this means for you is that students may not have much – or any money – to pay you. It never hurts to ask, however, if they are funded and how. Sometimes their grants will include money to pay participants and they haven’t learned, yet, that they should treat everyone they consult as though your time is valuable, too.
4. Sometimes, student researchers are working for more senior academics who have money to pay for your time. It is important to find out who they work for, why they are doing the research, and whether they are funded.

Questions Sex Workers Should Always Ask Researchers

There are certain questions sex workers should always ask the researchers who approach you. Don’t be afraid to push for answers. Sometimes, you will have to make researchers share power. And knowledge about the research being proposed is power for you and them.

1. Do you have ethics clearance already? What did you propose to do?

Generally, researchers have to get permission from a research control board to do any kind of research with individual people or groups. The best researchers will approach you first and ask you to advise or consult on their research plan before they take it to a research board.

If they have a research question, or a set of questions already, they are not working as a partner with you. This means that you will need to be careful if you agree to work with them.

In addition, if they have ethics clearance already, you will not be offered much pay, if any, for your participation in their study. This is because guidelines for ethical research say that we can only pay enough to compensate you for your time and inconvenience. We cannot offer enough to entice you to participate in a study, if you’d really rather not. You have to be able to walk away from the cash or gift and not feel that you’ve sacrificed.

If a researcher is really interested in working WITH you, they will approach you first, ask you what you think your community needs, and/or ask you to help them develop the research questions. Or, if sex workers have already defined very clear needs—safer working conditions, non-judgmental health care, the decriminalization of your work, for example—researchers should be able to demonstrate to you that they understand these needs. They should then consult with you to develop a research project that helps achieve one of these goals.

Significantly, if they work with you this way, they can pay you as a community consultant rather than research subject, and you can help them to develop a study that includes appropriate pay/gifts for the sex workers who participate.

2. How will sex working communities benefit from this research? How will you benefit from this research?

All of us work to make a living, and researchers are no exception. Doing research is part of our jobs, and many of us try to do research that will mean something to others as well as ourselves. That said, researchers should be up-front with sex workers about why they want to do the research they’re proposing to you. It is good for you to know right from the start if the person who has approached you is doing the research on sex work because it’s trendy, because it’s a ‘sexy’ topic that will get them some attention, or because they want to use their power to try to better sex workers’ plight in your little corner of the world.

Any of the reasons are things we can all work with; but you need to know from the get-go how dedicated this researcher will be. Will they see the project through? How long do they imagine the work will take? Is this a career-long thing for them, or will they move on to something else with their next grant application? Can you work with their answers? Do you trust them? Suss them out like you would a prospective client, and listen to your gut.

In Conclusion

AMY:

What does it take to foster an environment that accords dignified positions from which to speak? To anticipate needs given historical context? To create an environment in which all involved can contribute to a dialogue that is generative and not predetermined? To ensure a dialogic process in which everyone is sincere?

To a sex worker, answers to these questions begin with actually believing that our voices count, and seeing that reality materializing all around us.

SHAWNA:

As countries around the world struggle to address the extreme violence to which many people working as sex workers are subjected, many of us are conducting sex work research, writing books about sex work, lecturing at Universities on sex work and participating in policy development.

May we all learn from our past mistakes, and also work to dismantle the politics of elitism and exclusion that crop up even in our most well-meaning sex worker/non-sex worker partnerships, where the voices of the true stakeholders are often silenced or not included.