PERFECTLY LEGAL, BUT STILL BAD: LESSONS FOR SEX WORK FROM THE DECRIMINALIZATION OF ABORTION.

• Author: Hughes, Jula
• Position: Canada

Introduction 1. Social Stigma 235 2. Criminal Law and Stigma 237 3. Abortion Stigma 244 4. Implications for Sex Work 250 Introduction

Following the Supreme Court of Canada decision in Bedford, (1) advocates of both abolition and decriminalization anticipated a legislative outcome that would lessen the stigma of sex work. Abolitionists feared that destigmatization, often referred to as 'normalization', would endanger the project of women's equality and render women's victimization in the context of prostitution invisible. (2) Decriminalization advocates predicted that destigmatization would lead to improved working conditions and occupational health protections for sex workers. (3) Both sides of the debate have tended to assume that decriminalization would necessarily be attended by destigmatization. (4)

This view is contested in the social science literature (5) but is consistent with the criminal law jurisprudence of the Supreme Court of Canada. (6) The first part of this paper summarizes the social science literature on stigma production. Social science theories of stigma generally accept that stigma is produced through the interactions of the identification of difference, stereotyping, labelling and discrimination. The application of stigma tends to be spontaneous and attaches to diffuse targets. It is not typically susceptible to reflection or direct control. The second part considers the doctrinal treatment of stigma by the Supreme Court. The Court has suggested that there is a close relationship between criminal law and stigma. (7) Criminal law is understood as stigmatizing and the production of stigma is controlled by the criminal justice system. This close relationship helps to delineate the scope of criminal law. (8) Federal laws seeking to stigmatize certain behaviours as immoral are more likely to be found to be valid exercises of the criminal law power, though this is not an absolute requirement. (9) Conversely, provincial laws that stigmatize conduct by labeling it as immoral are likely to be found ultra vires intrusions into the federal sphere. (10)

The relationship of criminal law to stigma also attracts interpretive presumptions and even Charter (11) attention. The stigmatizing effect of criminal law helps to explain the interpretive preference for subjective fault (12) and the Charter may even require full mens rea as a constitutional matter. (13)

The validity of the sociological and legal models of stigma production is then tested in the context of abortion decriminalization. Based on a case study of abortion law in the Maritime provinces, I argue that criminal law and stigma are less directly connected than either decriminalization advocacy or the Supreme Court's doctrine suggests. Drawing on sociological insights on stigma production, I show that while criminal law can certainly play a role in stigmatizing conduct, stigmatization is not limited to criminalized conduct nor is it the case that (noncriminal) regulatory law necessarily avoids stigmatization.

Conversely, decriminalization may be attended by destigmatization, but not necessarily so. For example, the international experience with the decriminalization of sex work has been mixed. (14) Destigmatization may follow decriminalization as was arguably the case in the context of homosexuality, (15) or precede it, as in the case of marijuana use. (16) It tends, in any event, to be incomplete. (17) Social stigma theory can assist us in predicting when decriminalization will have destigmatizing effects and when stigma is likely to persist.

In the fourth and final part of the paper, the implications of abortion decriminalization for future decriminalization efforts in the context of sex work are addressed. This is of broader interest in areas of the law targeting conduct that is tied up in public morality discourses, including laws that implicate the sexual and bodily autonomy of women and sexual minorities. It may also require us to rethink the boundaries between criminal and regulatory law. In the next part, the social science literature on the production and maintenance of stigma is discussed.

Social Stigma

It has been over 50 years since Goffman's seminal monograph conceptualized stigma as a deeply discrediting attribute that tainted or discounted someone's identity. (18) Subsequent literature has continued to support a central role of stigma in the construction of social identity, but has drawn increased attention to the social (rather than individual) location of stigma, (19) emphasized its close relationship to existing power imbalances (20) and refined our understanding of the process of stigma production. Stigma theory has widely accepted two fundamental components: recognition of difference and devaluation. (21) In a highly influential paper, Link and Phelan proposed an elaborated definition that understands stigma as a process of social exclusion. (22) They argue that stigma arises in four distinct steps:

1) A labeling of human difference;

2) A dominant cultural beliefs links a labeled person to an undesirable characteristic (negative stereotype);

3) The labeled person is placed into a distinct category marking them as other; and

4) The labeled person experiences a loss of status and discrimination leading to unequal outcome. (23)

For Link and Phelan, all four steps are contingent on access to (differential) social, economic and political power. (24) They critique an individualized notion of stigma and emphasize its essentially social nature. Link and Phelan review a body of social psychology literature that strongly suggests that these beliefs are applied in preconscious and near automatic ways. (25)

This model of stigma production is helpful in the contexts under consideration, abortion and sex work. In the context of abortion, Kumar et al have proposed a definition of abortion stigma

... as a negative attribute ascribed to women who seek to terminate a pregnancy that marks them, internally or externally, as inferior to ideals of womanhood. While definitions of womanhood vary depending on local cultures and histories, a woman who seeks an abortion is inadvertently challenging widely-held assumptions about the 'essential nature' of women. (26) A woman who terminates a pregnancy is the cultural target of stigma because she embodies opposition to deeply held cultural beliefs about female sexuality, motherhood and the nurturing nature of women:

We hypothesise that there are at least three archetypal constructs of the 'feminine' that can be transgressed through an abortion experience: female sexuality solely for procreation, the inevitability of motherhood and instinctual nurturance of the vulnerable. (27) Similarly, sex workers are cultural targets of stigma because they transgress deeply held beliefs about female sexuality, the connection between love and sex, and heterosexual monogamy as the proper (and private) location of sexual relations. (28)

This is not to suggest that the criminalization of abortion is indistinct from the criminalization of sex work. The criminalization of sex work has been justified on the basis of public nuisance, and sometimes the protection of children and/or public morality. By contrast, the criminalization of abortion has its origins in a desire to expand the criminal law generally, in the protection of the professional monopoly of doctors, and religiously motivated concerns about the soul of the unborn child, particularly at later stages of the pregnancy. (29) Interestingly, more recently both abortion restrictions and sex work have been the subject of a women protective discourse. (30) The justification for treating abortion and sex work as analogous cases is not, then, that they are closely related offences. Rather, the comparison is justified because in both cases, the law has sought to control, through criminalization, the sexual conduct and bodily autonomy of women based on similar stereotypical beliefs about female sexuality, and the role of women in families and society. One important implication of this focus on the bodies and lives of women is that in both contexts, non-female bodies and identities have often been ignored. (31)

Criminal Law and Stigma

What would happen if we applied the sociological insight into the production of stigma to criminal law? I will argue that there are several legally important implications of the sociological perspective. In this next part, I will discuss three propositions: Firstly, criminal law as much responds to preexisting stigmatizing contexts as it acts as a primary producer of stigma. Secondly, criminal law operates to both support and constrain social stigma. Thirdly, there likely exists a complex set of interactions between social stigma and criminal law stigma. (32)

Applying Link and Phelan's process theory of stigma production, the creation of a criminal offence could be understood as generating a label that can be attributed to individuals. Criminalizing labels are applied to people who are thought to be deviant. (33) A person committing an intentional killing is labeled 'murderer', a person committing rape is labeled 'rapist'. These examples implicitly demonstrate that not all criminal offences effectively perform this labeling function. Despite decades of rape law reform, there is no stigmatizing label of'sexual assailant'. Other examples might include negligence-based offences that would require labels like 'negligent gun-storer'. Decriminalization advocates often seek to detach the previously criminalized conduct from its criminal label. 'Abortionists' seek to become abortion providers, (34) 'prostitutes' become sex workers. (35) Some newly minted stigmatizing labels stick (drunk driver), others do not (street racer). (36)

This is consistent with social stigma theory that in order to produce stigma, the label itself must be associated with negative group characteristics. The offence-creating language of a statute does not produce...