ABSTRACT
The governance of sex work is a key focus of global sex workers’ rights efforts and sex work researchers. Research has investigated the negative impacts of criminalisation on sex workers (e.g. Crofts & Summerfield, 2006; Harcourt, Egger & Donovan, 2005; O’Doherty, 2011; van der Meulen & Durisin, 2008; Shaver, Lewis & Maticka-Tyndale, 2011; van der Meulen, 2011; Shannon, 2010; Phoenix, 2007b). This has been matched by numerous activist efforts by sex workers and their allies for the decriminalisation of sex work (e.g. Open Society Foundations, n.d.; Mensah & Bruckert, 2012; van der Meulen, 2011). More recently, scholars have begun to question the dominance of law and regulation in analyses of sex worker experiences (Wagenaar & Altink, 2012; Agustín, 2008; Phoenix, 2007a), and have called for a shift towards an exploration of the “lived experience of the law” (Sanders & Campbell, 2014, p. 536), the “mundane details of policy implementation” (Wagenaar & Altink, 2012, p. 279) and the “subjects, identities, practices, and spaces” shaped by the law rather than the legal text itself (Scoular, 2010). This chapter contributes to this literature by advancing beyond a strict legal or political analysis of legality and illegality to examine the experiential dimensions of legality and illegality in sex work. Specifically, an ‘inter-categorical’ methodology (McCall, 2005) is used in this chapter to investigate how sex work laws and regulation produce: (1) different professional knowledges, (2) professional identities as ‘legal workers’ or ‘illegal workers’ and diverse mobilisations of these identities in the workplace, and (3) consequences for women’s security, mobility and agency. The regulation and the mobilisation of ‘legal’ and ‘illegal’ identities can be particularly salient for immigrant, migrant and racialised women in sex work, who may find themselves negotiating a range of suspect identities, given persistent stereotypes of trafficked sex workers and ‘illegal’ migrant workers. The question arises of what legality and illegality can and does offer to women whose citizenship or belongingness may already be rendered suspect by their involvement in sex work. Although sex work laws and regulation in Melbourne and Vancouver appear to be easily distinguishable, i.e. legalised in Melbourne and criminalised in Vancouver, gradations of legalisation and criminalisation do exist in both cities. Melbourne’s licensing framework creates a two-tiered industry, with a legal sector (licensed brothels and agencies) and an illegal sector (street-based sex
work, unlicensed brothels, private incall work). Hence, there may be some workers in Melbourne that operate in a criminalised context more akin to workers in the quasi-illegal Vancouver context than workers in Melbourne’s legal sex work industry. Interviewees from Melbourne worked in brothels, escort agencies, street-based work, stripping, peep shows and independent escorting (incall and outcall); however, most interviewees worked in Melbourne’s licensed brothels. Although a range of experiences with legality and illegality were explored, this chapter largely focuses on workers’ experiences within Melbourne’s licensed brothels, given that these environments represent one of the few settings globally where dimensions of ‘being legal’ or legality in sex work can be explored. Women interviewed in Vancouver also worked in diverse settings, including massage shops, escort agencies, independent outcall and incall escort work and street-based work. However, workers’ experiences of illegality in massage shops are highlighted in this chapter, given the unique and contradictory regulatory frameworks governing sex work in Vancouver. The City of Vancouver and surrounding cities and municipalities often have some form of licensing for businesses that do not acknowledge or explicitly permit the purchase and sale of sex, but still outline extensive regulations regarding signage, hours of operation, staff dress codes, architectural features (lighting), etc. These businesses largely operate as licensed shopfront businesses at the city or municipal level, although the explicit nature of their services may be kept deliberately ambiguous given Canada’s federal criminal laws around sex work, in which selling sex is not illegal but activities associated with it are.1 In December 2013, the Supreme Court of Canada struck down three anti-prostitution laws for violating sex workers’ constitutional rights and endangering their safety: these included prohibitions against solicitation, keeping a ‘bawdy-house’ or working from a regular workplace, and living off the avails of prostitution.2 On 6 December 2014, the federal government passed the controversial Bill C-36 or the Protection of Communities and Exploited Persons Act,3 which reinstated new versions of the previous laws struck down by the Supreme Court and introduced the criminalisation of sex workers’ clients. This was despite strong concerns from a diverse range of stakeholders (including sex worker organisations, professional associations, legal associations, rights-based organisations and city governments) about drafting a new bill without consultation from the Supreme Court of Canada to assess its constitutionality.4 Interviews in Vancouver were conducted in 2013, prior to the Supreme Court decision and the passage of the Protection of Communities and Exploited Persons Act. Therefore, the legal context interviewees discuss refers to the previous Sections 210-213 of the Canadian Criminal Code. However, it should be noted that the new legislation continues to similarly criminalise sex workers (e.g. bans against advertising), although the specific text of the law differs. In summary, the legal context in Canada continues to centre criminalisation as the main form of governance for sex work. As this chapter examines the impact of contrasting laws and regulation on workers’ experiences, each site will be examined separately.
