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Canadian court approves drug injection facility. Is sex work next?

The Canadian Supreme Court issued a landmark decision today in Canada v PHS Community Services, a case concerning the Vancouver supervised drug injection facility Insite.

Insite had been operating for several years, and there was both anecdotal and scientific evidence to demonstrate its effectiveness in keeping injecting drug users alive, improving their access to safe injection information and encouraging them into treatment – without leading to increased numbers of new or relapsed users. It operated under a discretionary exemption to federal drug laws, an exemption which the Conservative government eventually decided not to renew.

The Court had a few questions to answer, but the key one from my perspective was whether this decision breached Insite users’ rights under Section 7 of the Canadian Charter of Rights and Freedoms, which states:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

The Court unanimously ruled that it did. It stated:

 The Minister made a decision not to extend the exemption from the application of the federal drug laws to Insite. The effect of that decision…would have been to prevent injection drug users from accessing the health services offered by Insite, threatening the health and indeed the lives of the potential clients.  The Minister’s decision thus engages the claimants’ s. 7 interests and constitutes a limit on their s. 7 rights…this limit is not in accordance with the principles of fundamental justice.  It is arbitrary, undermining the very purposes of the CDSA, which include public health and safety.  It is also grossly disproportionate: the potential denial of health services and the correlative increase in the risk of death and disease to injection drug users outweigh any benefit that might be derived from maintaining an absolute prohibition on possession of illegal drugs on Insite’s premises.

In response to Canada’s argument that it was a “policy question” whether or not to grant such exemptions – you can read this argument as saying “we know we haven’t got a leg to stand on as far as evidence is concerned, but we should be able to impose our moral and ideological view anyway” – the Court stated:

The issue of illegal drug use and addiction is a complex one which attracts a variety of social, political, scientific and moral reactions. There is room for disagreement between reasonable people concerning how addiction should be treated.  It is for the relevant governments, not the Court, to make criminal and health policy. However, when a policy is translated into law or state action, those laws and actions are subject to scrutiny under the Charter…The issue before the Court at this point is not whether harm reduction or abstinence-based programmes are the best approach to resolving illegal drug use.  It is simply whether Canada has limited the rights of the claimants in a manner that does not comply with Charter.

So strongly did the Court feel about the matter that it did not, as I had feared it might, take the easy way out and issue a mere declaratory order (essentially, one that acknowledges a right was violated without requiring any concrete action on the government’s part). Instead, it mandated the Minister for Health to grant the exemption. Although exemptions are discretionary, it stated, that discretion must be exercised in a manner compatible with the Charter – and

 On the trial judge’s findings of fact, the only constitutional response to the application for a s. 56 exemption was to grant it.

Clearly, this is a massive victory for the users of the Insite facility, for harm reduction principles, and for simple common sense. It’s also a welcome step along Canada’s slow path of developing a constitutional right to health (like Iarnród Éireann, they’re not there yet, but they’re getting there). And finally, it points in a favourable direction for the outcome of another landmark case, Bedford v Canada, a challenge to laws that criminalise various aspects of sex work.

To summarise Bedford briefly, it concerns provisions of the Canadian Criminal Code that outlaw keeping a “bawdy-house” (which basically means any place regularly used for commercial sex, even if by only one sex worker), living off the proceeds of another person’s sex work, or communicating in public for the purposes of engaging in paid sex. These provisions were struck down by an Ontario Court on the basis of absolutely mounds of evidence showing that they materially contributed to sex workers’ risk of violence – without having any demonstrable effect on the amount of paid sex actually taking place. Judge Susan Himel found that

there are ways of conducting prostitution that may reduce the risk of violence towards prostitutes, and that the impugned provisions make many of these “safety-enhancing” methods or techniques illegal.

The parallels to the Insite case should be obvious. Both concern behaviours that the government wishes to condemn on moral grounds, and the use of criminal laws as a tool of its condemnation. Though in both cases a deterrent effect was also alleged, this was not supported by the evidence before the court. To the contrary, the only effects demonstrated were threats to the lives and safety of vulnerable people affected by the laws – in violation of their Charter rights to life, liberty and security of the person.

Of course, the two cases aren’t entirely analogous. Insite concerns the direct provision of a type of medical care, while Bedford is really about avoidance of harms caused by third parties (there is a significant body of evidence linking criminalisation of sex work with diminished access to health care, but the plaintiffs didn’t make that argument). And it was significant in Insite that addiction is viewed as a disease: the Court saw this as undermining Canada’s claim that it is not drug laws, but rather drug users’ behaviours, that give rise to the dangers they would face if the injecting facility was shut down. In the ongoing Bedford case, Canada is continuing to blame sex workers for their own risks, and “disease” is obviously not something the plaintiffs can (or would want to) come back with.

Nonetheless, it’s hard not to see the Insite judgment as a decisive victory for evidence over ideology, a rejection of the imposition of laws that have a demonstrably harmful effect on a particular population and no apparent beneficial effect apart from making some people feel good about the morally-derived “message” conveyed. And that has to bode well for the future of Bedford (currently awaiting an appellate decision, which itself is likely to be appealed to the federal Supreme Court). It’s still always possible that the courts will find the Criminal Code provisions against sex work so materially different to the withdrawal of Insite’s exemption that a different ruling must apply. But if I was Terri Jean Bedford, or any Canadian sex worker, I think I’d be wearing a hopeful smile today.

Sweden’s sex trade laws: not the answer

(Article by Stephanie Lord and Wendy Lyon)

There has been much debate recently around the introduction of the Swedish model of legislation to criminalise the purchase of sex. Championed by a group of well-meaning NGOs, and some with questionable origins, considerable column inches have been devoted to discussion of the benefits of criminalising the purchasers of sex workers’ services. For those who believe in women’s equality and oppose trafficking, it appears to be a safe enough endeavour to support. We are told by the “Turn Off the Red Light” campaign that all prostitution, regardless of consent, is a form of violence against women; that if demand for paid sex is eradicated, prostitution will end; that this is the best thing for women; that it has decreased prostitution in Sweden; that it reduces the numbers of women and girls trafficked and so on. It is unsurprising that people support this. Everybody is against trafficking, right?

But does it actually work? In short – no. In this debate, where you stand on the morality of a person commodifying their sexual services is irrelevant. If the goal of the Swedish legislative model is to eradicate prostitution and end the exploitation of women – it doesn’t work. To date, no evidence has been produced that the Swedish model has reduced the amount of prostitution. Not a single independent review has found this to be the case. Yes, the Swedish are correct when they say that street prostitution has decreased – but street prostitution in Sweden, as in every other country, is only a tiny percentage of total prostitution. As the Swedish Government’s 2010 Submission to UNAIDS stated, “Estimates of the number of people involved in commercial sex in Sweden vary widely and are very hard to estimate since it is mostly hidden and initiated primarily through the Internet or telephone. Although street prostitution does occur it is assumed to be only a fraction of total prostitution.”[1]

This is really not surprising, as criminalisation has never been successful in deterring prostitution in any country. Further to this, it hasn’t reduced trafficking to Sweden either. Consistent Swedish annual police reports confirm that sex trafficking is there and is even increasing. The law is seen as hindering traffickers from establishing operations in Sweden – but they are still easily able to operate from outside Sweden’s borders, which the police say makes it more difficult to apprehend traffickers.[2] It has also been reported[3] that clients are now less likely to report suspected trafficking cases since it may result in them being charged.

Proponents of the law believe that this model will work because many of them have looked to the Swedish government’s own evaluation of the law[4] – a bizarre approach, considering that most would never take it for granted that an Irish government evaluation of one of its own initiatives painted an accurate picture of reality. The Swedish government’s evaluation of the law has been widely criticised by many commentators – including Sweden’s Discrimination Ombudsman,[5] the Swedish Federation for Lesbian, Gay, Bisexual and Transgender Rights,[6] and the Swedish National Board of Health and Welfare[7] – for its bias, lack of research, unsupported conclusions, unclear methodology and exclusion of sex workers’ own voices. The evaluation said that police had no evidence of increases in off-street prostitution. However, it acknowledged that police do not normally investigate off-street prostitution unless it is linked to trafficking – so how do they know the extent of it?

We do know that in 2010 the number of prostitution reports increased five-fold over the previous year, but Swedish police say this was not due to an increase in prostitution but merely to greater resources being applied to tackle the issue.[8] This is absolute proof that there is a significant amount of sex work going on below the police radar.

More importantly, Swedish sex workers have reported significant adverse consequences as a result of the law – including that it has deterred some of the “ordinary” clients who only want regular sex, but has not deterred the dangerous ones.[9] In short, criminalising the purchase of sex in Sweden has meant for Swedish sex workers that the odds of any particular client turning out to be dangerous are much higher. According to the sex workers – as opposed to their self-appointed spokespersons – since the clients are more nervous about being caught, the decision about whether to accept them has to be made much more quickly and without adequate time to assess whether they are dangerous.[10] For them, the loss of “ordinary” clients now means they have to accept clients they would not otherwise accept, including those who demand sex without a condom.[11] By making direct contact between buyer and seller more difficult, the law is also said to have increased the power of intermediaries (or in common language, pimps).[12]

It has been widely recognised in the HIV/AIDS sector that sex workers who are not able to control their working conditions, most importantly condom negotiation, are at a higher risk of infection.  This is the reason why virtually the entire global health sector supports the decriminalisation of sex work and granting sex workers occupational health and safety rights. The World Health Organization,[13] UNAIDS,[14] the Office of the High Commissioner on Human Rights,[15] the UN Secretary General,[16] the UN Special Rapporteur on the Right to Health[17] – all of these have called for the removal of laws criminalising commercial sex between consenting adults, primarily because criminalisation is a recognised risk factor for HIV/AIDS.

It is a mistake to assume that criminalising only the clients removes this risk factor. In Sweden’s UNAIDS Submission, only 18.5% of sex workers reported using a condom with their most recent client.[18] The health and safety complaints raised by Swedish sex workers since implementation of the law are virtually identical to those raised by sex workers in jurisdictions where sex-sellers can also be prosecuted.

The Swedish evaluation acknowledged that sex workers feel stigmatised, hunted and stripped of capacity under the new law – but said this was a good thing since the aim of the law is to combat prostitution. [19] To sell this to the Irish public as something that will stop exploitation of women is a lie. It is, in fact, comparable to saying that drug addicts should have to use dirty needles because it might stop them injecting! Although, while we’re on the subject, this is similar to the approach Sweden takes to drug addiction – it has largely rejected harm reduction[20] in favour of penalisation and abstinence-based treatment – which doesn’t work.

Sex workers have been consistently denied a voice in the Swedish debate. So far, they have also been denied a voice in the Irish debate. Last year, the Irish Department of Justice went to Sweden to learn about its policies and did not meet with a single sex worker or representative organisation.[21] It is a major violation of their human rights to adopt a law that affects their lives without giving them a primary role in shaping the debate.

It is important to understand that the alternative to the Swedish or Irish models is not “legalisation” as found in places like the Netherlands, Nevada, and parts of Australia. Those schemes are aimed at controlling the public order aspects of prostitution, rather than safeguarding sex workers’ rights. A truly rights-based approach would look more like the model in New Zealand, in which most sex work is not “legalised” but decriminalised. New Zealand sex workers made a significant contribution to the scheme’s design, and while the law that was ultimately passed is not perfect, it does give sex workers more rights than any other jurisdiction in the world – including an absolute right to refuse a client or service, protection under occupational health and safety legislation, and the important safety mechanism of being allowed to work together, in pairs or small groups.[22] It is hardly surprising that New Zealand sex workers overwhelmingly respond positively to questions about their rights under the law.[23] The same cannot be said about the Swedish law. Not even the Swedish government makes such a claim.

Everybody wants to see an end to forced prostitution and trafficking. Sex workers themselves are very well placed to assist in this campaign, and their contribution should be welcomed and encouraged. The Swedish law does the opposite: it encourages them to avoid police and social services rather than engage with them. Coercion and abuse can never be addressed by making an industry more hidden and denying labour rights to the people working in it. Just as they would in any other sector, it is the exploiters who benefit when we decide that the sex trade is “different” and so basic standards of labour law should not apply.


[1] Government of Sweden, ‘UNGASS Country Progress Report 2010’ p.63

[2] National Criminal Police of Sweden, ‘Trafficking of Human Beings for Sexual and Other Purposes: Situation Report 9’ (2006) p.18

[3] Ministry of Justice and the Police of Norway, ‘Purchasing Sexual Services in Sweden and the Netherlands: Legal Regulation and Experiences’ (2004) p.19

[6] Federation for Lesbian, Gay, Bisexual and Transgender Rights, ‘Prohibition of the Purchases of Sexual Services: An Evaluation 1999-2008

[8] The Local, ‘Big Increase in Prostitution Reports’ (2010)

[9] Ministry of Justice and the Police of Norway (n3), p.13

[10] Johannes Eriksson (Rose Alliance), ‘What’s Wrong with the Swedish Model’ (2006) p.4

[11] Ibid.

[12] National Board of Health and Welfare of Sweden, ‘Prostitution in Sweden 2007’ pp.47-48

[18] Government of Sweden (n1) p.25

[21] Freedom of Information request obtained from Department of Justice (2011).

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