Re(de)fining Prostitution and Sex Work: Conceptual Clarity for Legal Thinking

Abstract

The Protection of Communities and Exploited Persons Act criminalized the purchase of sexual services, making prostitution illegal for the first time in Canada. This legislative approach to prostitution aims to end demand for prostitution with a goal of ending the practice itself, based on an understanding of the activity of prostitution as sexual exploitation, a cause and consequence of gender inequality, and a form of violence disproportionately impacting women and girls. Opposition to this legislative approach to prostitution is largely founded on an understanding of sex work as legitimate work, reflecting the exercise of choice and agency, and a site to expand the boundaries of sexuality and gender. Critics argue that consensual exchanges of sexual acts for compensation between adults should not be subject to criminal sanction. In 2017, the first constitutional challenge to three of the new criminal offences applicable to adult prostitution was commenced, founded on the contention that the impugned provisions violate constitutional rights of “escorts and other sex workers.” In this article, I break with the ideological contours of the debate to examine the word “prostitution” as it is legally defined in Canada, and the term “sex work” as it has evolved and is employed in recent jurisprudence, empirical research, and contemporary texts promoting sex workers’ rights. I argue that the word prostitution and the term sex work are not synonymous and that legal decision makers must attend to how the word and term are used in legal texts and contexts. Where prostitution has been legally defined in Canada to refer to the act of exchanging sexual services for payment or consideration, the term sex work has not been defined in jurisprudence or statute. The term sex worker is usually used to refer to a subset of prostitution participants bearing certain characteristics, most notably that they be adults who are not trafficked and who consent to the exchange of their own sexual services for consideration. The term sex work is also sometimes used to describe activities that fall outside of the legal definition of prostitution, such as pornography and exotic dancing. Understanding how the word prostitution and the term sex work are defined and used has the potential to more clearly illuminate whose interests and experiences are and are not reflected in existing theoretical and empirical literature and to ground more nuanced evaluation of constitutional challenges founded on sex workers’ rights claims.

Keywords: Prostitution, sex work, sex trafficking, PCEPA