In Canada v. Bedford (2013), the Supreme Court of Canada declared Canada’s existing prostitution laws unconstitutional and gave the Canadian government one year to redraft the existing statutes. Subsequently, the Court’s decision has provided an opportunity for feminists to discuss their competing conceptions of prostitution and of women in the sex trade.

In Bedford, the Court reasoned that by criminalizing solicitation, living off the avails of prostitution and bawdy houses, the existing laws were unconstitutional because they had the effect of violating the security of persons. Specifically, the law reduced prostitutes’ personal security by preventing them from taking actions to increase their safety, such as employing a bodyguard or working indoors, rather than on the street.

In response to Bedford, one division of feminism has lobbied for a more punitive anti-prostitution regime or, alternatively, a regime that criminalizes the purchasers of sex, johns. Pro-criminalization feminists’ arguments are rooted in patriarchal notions of the sex trade that view prostitution as an extension of patriarchy in which women are subjugated and harmed by male purchasers of sex.[1] In Canadian Parliament, pro-criminalization feminists’ approach to the sex trade found a zealous proponent in Conservative Member of Parliament Joy Smith. Smith has argued that, “We need to recognize prostitution for what it is. It is inherently harmful to women and girls and therefore must be eliminated.”[2]

In contrast to pro-criminalization feminists, who conceptualize female sex workers as victims of patriarchy, decriminalization feminists conceptualize prostitutes as active participants in the sex trade market. Instead of conceptualizing anti-prostitution laws as a means to promote gender equality, decriminalization feminists conceptualize anti-prostitution laws as another tool to regulate and govern women’s bodies.[3] Terri-Jean Bedford, one of the plaintiffs in Bedford, exemplifies this perspective. According to Bedford, sex work is “not the government’s business. It’s nobody’s business. It’s only their business if somebody is getting hurt.”[4]

In response to Bedford, the Canadian government tabled Bill C-36, the “Protection of Communities and Exploited Persons Act.” Instead of criminalizing prostitutes, Bill C-36 criminalizes the purchasers of sex and those who profit off of the avails of prostitution. Consequently, Bill C-36 represents a victory for pro-criminalization feminists. However, the discussion surrounding Bedford and Bill C-36 has exposed deep fissures amongst feminists and their competing conceptions of the sex trade, how to increase women’s safety and how to preserve their liberty. Moreover, by criminalizing the purchasers of sex, its foreseeable that sex trade workers will continue to be forced to operate in inherently unsafe situations to ensure johns can avoid criminal punishment. Consequently, given the possibility that Bill C-36 could have the same effects on prostitutes as previous legislation, it might be that, in accordance with the decriminalization feminist perspective, criminal law is not the most effective instrument for preventing harm to women in the sex trade. Irrespective of one’s perspective, however, these competing conceptions of feminism could once again be used to inform Canada’s, and other countries’, response to prostitution. Consequently, fruitful discussion of their merits and women’s relationship with the sex trade is deserved.

[1] Richard Jochelson & Kirsten Kramar. Sex & The Supreme Court: Obscenity and Indecency Laws in Canada, 82-83 (2011).

[2] Joy Smith, Dear Amnesty International, Legal Prostitution Harms Women, Huffington Post, January 31, 2014, http://www.huffingtonpost.ca/joy-smith-mp/legal-prostitution-amnesty-international_b_4698060.html.

[3] Jochelson & Kramar, supra.

[4] Antonia Zerbisias, A. What is a sex act? Toronto dominatrix Terri-Jean Bedford demands answers from Stephen Harper, Toronto Star, January 8, 2014, http://www.thestar.com/news/gta/2014/01/08/what_is_a_sex_act_toronto_dominatrix_terrijean_bedford_demands_answers_from_stephen_harper.html.