Hamish Stewart. The Constitutionality of the New Sex Work Law, Alberta Law Review (ALR) 54(1):69-88.
In this article, the author considers the constitutionality of Canada’s new law on prostitution: Bill C-36. When the new sex work law was first introduced into Parliament, a number of advocacy groups and commentators argued that it was unconstitutional because of its failure to respond to the concerns raised in Bedford v. Canada, a case where the Supreme Court of Canada struck down the old sex work law on the ground that its negative impact on sex workers’ security of the person outweighed its nuisance abatement objective. This author agrees that Bill C-36 may be unconstitutional, but for a different reason. The new sex work law adheres to the constitutional norms invoked in Bedford by making use of two novel policy objectives: discouraging sex work and reducing the danger of sex work to sex workers. In practice, however, these objectives are likely to conflict with one another. As a result, Bill C-36 is an incoherent piece of legislation that may be unconstitutional for creating arbitrary and grossly disproportionate effects on the security of the person of sex workers.
Adrienne D. Davis, Regulating Sex Work: Erotic Assimilationism, Erotic Exceptionalism, and the Challenge of Intimate Labor, 103 Cal. L. Rev. 1195 (2015). Available at: http://scholarship.law.berkeley.edu/californialawreview/vol103/iss5/3
Most commentators on sex markets focus on the debate between abolitionists and those who defend and support professional sex work. This Article, instead, looks at debates within the pro-sex-work camp, uncovering some unattended tensions and contradictions. Some within this camp stress the labor aspect, urging that sex markets perpetuate a “vulnerable population” of workers and should be regulated like other forms of risky and/or exploited labor. In this view, sex work would be assimilated into existing labor regulatory frameworks. Others, though, take a more antiregulatory stance. They exceptionalize this form of labor, arguing that because it is sexual it should be exempt from state scrutiny and interference, claims that can quickly sound libertarian. While both camps agree that professional sex work should be decriminalized, when turning from the criminal to the regulatory perspective, erotic assimilationists and erotic exceptionalists could not be more opposed. The Article contends that neither of these views is satisfactory. Sex work could very well be legalized and regulated—if we have the political and moral will to do so. Ultimately, this Article breaks hard with erotic exceptionalism and slightly less so with erotic assimilationism to explore a regulatory structure that might govern sex markets. While many sex work regulations could fit into the current legal frameworks that govern workplaces, I contend that there are unique characteristics of sex work that make it much harder to assimilate into current regulatory regimes, especially in the controversial realm of antidiscrimination law.
Aziza Ahmed et al., Panel on Sex Trafficking (Transcript), 5 U. Miami Race & Soc. Just. L. Rev. 445 (2015) Available at: http://repository.law.miami.edu/umrsjlr/vol5/iss2/20
Sex work and its relationship to trafficking is one of the more divisive policy issues of our times, as seen in the ongoing debate in Canada over a bill that views prostitution as inherently dangerous, affecting vulnerable women and offending their dignity.At the risk of over-simplification, the two perspectives on sex work are: i) it is seen as a cause or consequence of, or akin to, trafficking, exploitation, and violence: ii) it is seen as consensual sex between adults for money or other valuable consideration, distinct from trafficking. Although there has been an impasse resulting from the divergence of these views, there is increasing recognition that the reality is complex and individualized; people experience sex work across a spectrum between compulsion, constrained decisions, and choice.
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