‘Clear, relaxed’ conversations key to consent, McCann argues in sex work Charter challenge
Marcus McCann made arguments at the Ontario Superior Court of Justice in a Charter challenge seeking to strike Canada’s Criminal Code prohibitions related to sex work October 3-7, 2022. The challenge was launched by the Canadian Alliance for Sex Work Law Reform, five current or former sex workers, and a former escort agency owner.
Mr. McCann was representing the Ontario Coalition of Rape Crisis Centres. The OCRCC intervened to make the following points:
- Canada’s sex work laws make talking about sex in advance harder, make it more likely that there will be a miscommunication; a mistake; differing expectations; or a deliberate misuse of silence and ambiguity. This is part of a sexual assault opportunity structure.
- The importance of “verbalizing your desires”, “boundary setting” “negotiation” is not sex-work specific: it is so important to talk about the type of sex you want, anything you don’t want, safer sex, birth control. It’s an opportunity to decide together.
- If you criminalize purchasing, clients are going to be reluctant to talk terms in advance. Of course they are. That’s the evidence of the applicant’s fact witnesses and experts, and frankly, it’s common sense.
- Any argument that you can replace clear, relaxed, unhurried, explicit conversations with conversations that are rushed or coded is extremely troubling. Unless you can be specific, it offends a basic premise: consent is consent to a specific act; there is no such thing as blanket consent.
- It should be obvious that if the law creates a situation in which the first time you speak frankly about your boundaries is when you are alone with the client – in a hotel room, in his car – then the law is putting you in danger.
- The OCRCC asked the court to say that limits on advanced communications are not trivial, and they are not remedied when communication happens later, behind closed doors, once people are alone. The OCRCC closed this section in written submissions with a quote from a participant in a @chaln study, who says, “Why would I want to talk about that stuff behind closed doors, where I could get hurt?”
- A great lesson of the anti-violence movement: silence and secrecy creates opportunities for sexual violence to occur, or boundaries to get transgressed, or creates environments of isolation in which it is easier for people to become victimized, or have nobody to talk to.
Read more about this case in the Toronto Star and on the Applicants’ website.