Good morning. Thank you for inviting me to speak to the committee today.
My name is Kerry Porth and I am the sex work policy researcher at Pivot Legal Society. Pivot is an organization located in the Downtown Eastside of Vancouver that works with communities affected by poverty and social exclusion to develop solutions to complex human rights issues.
Our work is focused in several areas, but I will limit my remarks today to my own area of expertise, which is sex work and the law. I am here to offer Pivot's qualified support for the Attorney General's new guidelines on prosecution for the non-disclosure of HIV status.
I will remind this committee that Canada has the third-largest number of recorded prosecutions for alleged HIV non-disclosure in the world. These prosecutions are disproportionately of individuals who are marginalized by poverty, race, gender expression and sexual orientation—people like our sex-working clients who continue to labour in a criminalized environment.
We are pleased to see the Attorney General taking steps to lower the number of prosecutions and to allow more consideration of individual circumstances. That being said, the directive does not go far enough. In our opinion, the decriminalization of sex work is the only way to fully respect sex workers' rights and to protect their health and safety.
We are concerned that even with the new directive, sex workers may be unfairly criminalized for HIV-related offences that are, in actuality, related to the stigma and criminalization of sex work.
We know that the criminalization of sex work, one, exposes workers to higher risks of HIV transmission. Two, it makes workers vulnerable to exploitative and risky behaviour. Three, it prevents access to health care.
On the first point, that criminalization exposes workers to higher risks of HIV transmission, in Canada the HIV burden among sex workers is highest among those who are selling or trading sex on the street. This is due to issues such as criminalization, violence, stigma and poor working conditions that limit their ability to engage in HIV prevention, including the correct use of condoms.
Most sex workers who are living with HIV contracted the disease through injection drug use or, more often, through non-commercial sex with an intimate partner.
In 2015, a comprehensive review of all HIV and sex work research over the previous six years demonstrated that biomedical and behavioural prevention efforts alone have had only a modest impact in reducing HIV infections of sex workers. Instead, the review found that structural factors played the largest roles.
Research has consistently shown that criminalization of sex work and police enforcement reduce sex workers' ability to properly screen their clients, negotiate condom use and access health services without stigma, including HIV care.
Any suggestion that sex workers were decriminalized under the Protection of Communities and Exploited Persons Act, introduced in December 2014, is wholly inaccurate. People selling or trading sex in challenging circumstances, such as those working on the streets, are limited in their ability to keep themselves safe under the new laws in much the same way as they were under the old.
For example, the prohibition on client communication means that sex workers have very little time to assess the safety of a potential client on the street because the client fears detection by law enforcement. Such workers in these circumstances have much less time to negotiate the terms of the transaction, including the use of condoms, which can leave them vulnerable to HIV.
In Canada, research has demonstrated that laws that target clients and third parties—such as managers, security and receptionists—have not reduced the rates of violence against sex workers or increased their control over their sexual health, including HIV prevention.
On the second point, criminalization makes workers vulnerable to exploitative and risky behaviour. The directive still criminalizes sexual activity if a condom is not used. This requirement differentially impacts marginalized sex workers who are vulnerable to exploitative practices, such as clients who refuse to use condoms.
In Canada, most sex workers practice safer sex at much higher rates than the general public, and this should not need to be stated, as their work requires that they have a healthy body. However, sex workers living with HIV, who are living and working in challenging circumstances, might not be aware of their current viral load but still use condoms, which are proven to be 100% effective at stopping the transmission of HIV.
There are cases, however, where clients have pressured marginalized workers, often with a significant financial incentive, to not use a condom, or have removed it during the course of a transaction, or have sexually assaulted a sex worker and did not wear a condom.
The direct criminalization of third parties, such as drivers, managers and security, is having an adverse effect on the health and safety of sex workers. It is well established in the literature and confirmed by the Supreme Court of Canada that sex workers enjoy greater safety and better health outcomes when they are able to work together in a fixed indoor location. Evidence demonstrates that safer work environments and supportive housing, which allow sex workers to work together, promote access to health services and reduce HIV risks among sex workers.
Those options are now less available, as anyone who even appears to be guilty of receiving a material benefit in the context of sex work is presumed to be guilty. This has reduced the pool of trusted third parties. Instead, people who are less averse to breaking the law and more likely to engage in exploitative practices with sex workers have stepped in to fill the void. In other words, a legal framework that casts all third parties and clients as exploitative and potentially violent, with no evidence to support that, creates an environment where violence and exploitation are more likely to occur.
Exploitative practices can include demands that sex workers take clients who don't want to use condoms. Migrant sex workers, in particular, lack connections and language skills and are at constant risk of deportation due to immigration regulations that prohibit them from working in the sex industry. As a result, they are unable to reach out to police and are afraid of accessing health care.
On the third point, sex work criminalization prevents access to health care. The directive says that people will not be prosecuted if they have a suppressed viral load, but sex workers are deterred from accessing health care and are therefore exposed to a greater risk of prosecution than other communities.
Given the structural barriers to comprehensive HIV care for marginalized sex workers, it is easy to foresee circumstances where sex workers are unaware of their current viral load, and so we have concerns about how “less blameworthy” conduct will be assessed under the new directives. The stigma regarding sex workers is profound and their conception as vectors of disease by public health bodies traces its roots in modern times to the Contagious Diseases Act of 1860 in England.
Sex workers are also confused about the criminalization—