Eradicating sexual exploitation in porn should not be at the expense of sex workers

Conservative MP Arnold Viersen recently introduced Bill C-302, adding two offences to the Canadian Criminal Code regarding pornography: one for making material without written confirmation of performer’s legal age and consent and another for distributing such material.

Curiously, both acts are already illegal.

• Co-authors of this article with Rebecca Sullivan are Maggie MacDonald, University of Toronto, and Valerie Webber, Memorial University of Newfoundland

Canada has some of the most stringent laws in the world around child sexual abuse material and consent to sexual activity. It is a federal offence to distribute “intimate images” without a subject’s prior knowledge and consent. Rules are stricter with higher punishment if the material depicts a minor, including fictional characters.

This new bill would not enhance existing measures to curb online sexual abuse. Instead, it vastly increases surveillance of porn workers, a highly stigmatized and overly policed group.

There is absolutely a need to prevent online sexual exploitation, but protective measures must extend to everyone — including porn performers. Laws must be developed with meaningful sex worker consultation. Failure to do so risks exacerbating the violence Viersen claims he is seeking to prevent.

Evidence of dangerous policy is clear in the United States, where 2018 legislation — Fight Online Sex Trafficking Act (FOSTA) and the Stop Enabling Sex Traffickers Act (SESTA) — have resulted in sex workers’ social media accounts being banned and entire platforms shut down.

Other restrictions have discriminated, delayed and outright cancelled payment processes for legal sex workers. A recent U.S. government accountability office report found these laws made life significantly more dangerous for sex workers, but have only been applied to a single trafficking prosecution over three years.

The problem with ‘written consent’

Currently in Canada, it is illegal to circulate in any way “an intimate image of a person knowing that the person depicted in the image did not give their consent to that conduct.” Written proof from the person depicted isn’t necessary, ensuring greater privacy for performers.

In contrast, the proposed new bill states that consent “means the voluntary agreement, in writing, of the person whose image is depicted in the pornographic material.” But documentation isn’t voluntary if mandated by law and potentially made public any time a complaint is filed.

Porn studio productions already follow extensive informed consent and model release documentation processes, similar to other media and performance industry standards.

Nothing in Bill C-302 improves upon those practices. Instead, the expansion of legal powers would be felt most heavily by independent content producers, burdened with having to prove they are not exploiting themselves.

Such record keeping requirements represent a risk to sex workers who are already stigmatized. Fear of exposure and harassment can lead workers into illegal or quasi-legal activities where they need not provide identifying information to police or government officials, who have demonstrated little concern with their well-being.

As Conservative Sen. Don Plett said in 2014: “Of course, we don’t want to make life safe for prostitutes; we want to do away with prostitution.”

Similar sentiments against pornography persist.

Sex worker testimony an afterthought

Deeming sex workers either helpless and incompetent — or immoral and obscene — politicians routinely ignore their expertise on the relationship between porn, online platforms and consent violations.

Read more: Porn not to blame for public health issues

This was clear during the 2014 senate hearings on Bill C-36, the Protection of Communities and Exploited Persons Act, when sex worker concerns were dismissed by Plett and others.

It happened again in 2016 when Viersen introduced M-47, a motion for the Standing Committee on Health “to examine the public health effects of the ease of access and viewing of online violent and degrading sexually explicit material on children, women and men.”

Most recently, sex workers were sidelined when Viersen instigated parliamentary committee meetings on “ensuring the protection of privacy and reputation on platforms such as Pornhub.”

Sandra Wesley, director of the Montréal-based sex worker advocacy agency Stella, released a statement after their request to speak at those meetings was rebuffed: “The response that I got back is that sex workers are not relevant to this conversation.” Invited to the hearings, however, were American anti-porn activists backed by evangelical Christian organizations.

After mounting a social media campaign, sex worker rights groups were finally included - in the final day of meetings. In her testimony, Jenn Clamen of the Canadian Alliance for Sex Work Law Reform said:

“[Sex workers] have been organizing for over 50 years against violence and abuse in the industry. It’s why we started organizing …For this reason, sex workers are best placed to be at the centre of this discussion.”

Bill C-302 fails to recognize the high standards of consent established by porn industry professionals and activists. This bill isn’t about consent, but eradicating an undesirable sexual citizen: the sex worker.

Exploiting consent to harm sexual minorities

Legal scholar Karla O’Regan notes, while consent is ostensibly about ensuring personal freedoms, it actually entails “a series of unspoken presumptions about what is normal human behaviour,” such that “the availability of consent hinges on the ‘reasonableness’ of the defendant’s conduct.”

Since what is judged reasonable is contained within laws governing morality, some sexualities and acts are considered fundamentally objectionable, falling outside what groundbreaking sexuality studies scholar Gayle Rubin called the “charmed circle” of heteronormative monogamy.

Anti-sex worker policies, steeped in moralization and infantilization, do not recognize porn performers’ ability to consent to sex work. This reproduces the stigma underlying systemic cultures of sexual abuse that prioritize “good” victims over “bad” ones.

Consent is too critical a framework to be weaponized by politicians looking to do away with undesirable sexual citizens.