Shifting the focus: restorative justice and sex work.

• Author: Lewis, Jacqueline
• Position: Canada

Introduction

The precedents and roots of the concept of restorative justice (RJ) "are as old as human history" (Zehr 2002: 12). Traditional methods of dispute resolution practised by native groups from North America and New Zealand--particularly the practice of having elders, communities, and families work together with the parties involved in a dispute in order to resolve conflicts--provide a historical basis for the growth of the current concept (Zehr 2002). The focus of RJ is behaviour that causes harm to individuals and relationships and an attempt to repair that harm through a dialogue among the affected parties. "Its version of justice is centered on specifically nuanced concepts of harm, obligation, need, restoration, healing, reconciliation, reintegration and participation" (Pavlich 2005: 2). Requirements for resolving conflict involve not only examining what needs to be done for and by the offending party but what needs to be done for the party(ies) affected by the wrong-doing. Although public interest should be taken into consideration, it is those who experience the wrong-doing (and those in close connection with them) who guide what happens in and results from such interventions (Pavlich 2005).

In recent years, governments have increasingly taken up the concept of RJ and have added what they refer to as RJ practices to their sentencing arsenal. (1) The manner in which such practices are taken up and implemented, however, typically involves a shift away from the original roots and intent of the concept of RJ and a remodelling of its basic foundations to better fit a retributive and adversarial system of justice. (2) Most importantly, the conceptualization of harm, which is broadly defined in more traditional renderings of RJ, has narrowed so that harm is equated with crime and crime is equated with violations of state criminal laws. (3) This narrowing of the definition of harm to include only those acts defined as criminal by the state, however, is problematic, as it excludes many broader structural and cultural sources of harm, including certain laws and policies that can be seen as equally or more harmful than some violations of state criminal laws (e.g., South Africa's Apartheid, North American polices regarding Aboriginal peoples). Similar to efforts that work to focus our attention on individual crime (e.g., the perpetuation of fear of crimes of violence despite the evidence which demonstrates that a person is more likely to be hurt/killed on the job (4)), thereby taking our focus off corporate/organization or state crime that is much more likely to negatively impact us individually and collectively, making the focus of RJ 'crime' as defined by the state, ensures state caused harm is moved to the side, out of most of our view, and the state out of the realm of possible participants (i.e., as the offending party) in RJ interventions.

Using adult sex work as an example, this article argues that the incorporation of a broader conceptualization of RJ principles into Canadian justice will encourage us to examine structural and cultural sources of harm, in particular harm resulting from the framing and/or focus of certain government policies. The aim is to rethink the application of RJ principles to sex work so as to shift the focus, particularly regarding conceptualizations of victim, assumptions as to the source of harm, definitions of the offending party, and an understanding of what is needed to repair the harm. Thus the article challenges the boundaries of the conceptualization of RJ as it has been taken up and offers resolutions. Research studies such as those on which this analysis is based have a broader focus than do traditional criminological studies (i.e., behaviours that are on the periphery of criminology; a more comprehensive interpretation of policy--federal, provincial and municipal--and the impact of policy on, among other things, job security, health, and well-being). Such research typically moves the researcher to the margins of the discipline. However, both this article and the research projects on which it is based illustrate the importance of pushing disciplinary boundaries and broadening the field of criminology, as much can be learned about crime and its related harms through widening our gaze. In doing so, the ideas discussed here may also serve to bridge some of the divides in criminology and bring those on the margins back into the mainstream of the discipline.

Methodology

This article uses data from two federally funded sex-work projects on which I served as principal investigator. (5) Both studies involved interviews with people working in the sex industry (PWSI) and key informants who were members of sex-work advocacy groups, government employees (e.g., public health and social service workers, city councillors, municipal employees, and police, etc.) and relevant local service providers. They also included the collection and analysis of relevant policy documents (e.g., the Criminal Code of Canada, court decisions pertaining to sex work, provincial laws applicable to sex work [e.g., victim compensation, workplace/occupational health and safety, etc.], municipal bylaws, etc.). One study focused exclusively on female escorts in a border town with a licensed escort industry. (6) The other explored the experiences of women, men, and transsexual/ transgender workers involved in street-based and/or off-street work in two large Canadian cities. (7) In the former study, interviews were conducted with 18 escorts, 8 escort agency personnel, and 21 key informants. The latter involved interviews with 120 PWSI and 28 key informants. Both studies examined the impact of public policy (federal, provincial, and municipal) on the health, safety, and well-being of workers.

Sex work and the law in Canada

The exchange of sex for money between two consenting adults is not illegal in Canada. However, there are laws in place that make it very difficult for adults working in the sex industry to practise their trade without running into conflict with the law, (8) creating a de facto form of prohibition. According to the Criminal Code, it is illegal to communicate in a public place for the purposes of prostitution (s. 213), be nude (s. 174), or engage in "indecent" activities (s. 173). It is illegal to "procure" a person into prostitution or live on the avails of prostitution (s. 212). It is also illegal to keep a "bawdy house"; work, live, or be found in a "bawdy house"; own or be in charge of a place where a "bawdy house" is located (s. 210); and/or offer, take, or direct someone to a "bawdy house" (s. 211). The harm that results from such policies (Canada and elsewhere) has been reported in the literature (e.g., Lewis and Maticka-Tyndale 2000; Pivot Legal Society [Pivot] 2004; 2006; Rekart 2005; Sanders 2007), including our own research, which explores the impact of public policy on the health and well-being of PWSI (see Lewis, Maticka-Tyndale, Shaver, and Schramm 2005; STAR 2006b).

As was explained by our research team (and other researchers) in a presentation to the House of Commons Subcommittee on Solicitation Laws (SSLR), (9) the location and orientation of sex work affects workers' ability to secure and maintain control over their work environment, and this, in turn, affects safety and security on the job and overall health and well-being (see Lewis, Maticka-Tyndale, Shaver, and Gillies 2005; Lewis, Maticka-Tyndale, Shaver, and Schramm 2005; STAR 2006b). Laws jeopardize health and well-being when actions that can be taken by...