In December 2014, purchasing sexual services in Canada was made a criminal offence for the first time. Other aspects of sex work and the locations in which it takes place had been offences for most of Canada’s criminal law history, but the act of paying an adult to provide sexual services was not against the law per se. The shift in legislative foci occurred at the end of a lengthy challenge to the constitutionality of three key anti-prostitution sections in the Criminal Code, namely ss. 210 (bawdy-houses), 212(1)(j) (living on the avails), and 213(1)(c) (communication for the purpose of engaging in prostitution). Sex workers and their allies at the heart of the challenge argued that these laws contravened their rights as enshrined in the Canadian Charter of Rights and Freedoms. More specifically, they asserted that all three provisions violated their right to liberty and security of person, and that the communication section also infringed upon their right to freedom of expression, none of which was in accordance with the principles of fundamental justice. The Supreme Court of Canada agreed, deeming the impugned provisions unconstitutional (Canada (Attorney General) v. Bedford 2013). In their decision, the Court went so far as to write: “The prohibitions all heighten the risks the applicants face in prostitution—itself a legal activity. They do not merely impose conditions on how prostitutes operate. They go a critical step further, by imposing dangerous conditions on prostitution…” (Canada (Attorney General) v. Bedford 2013; emphasis in original).
Rather than taking seriously the decades of empirical evidence on the harms that result from criminalization, the then federal Conservative majority government immediately proposed Bill C-36, The Protection of Communities and Exploited Persons Act (PCEPA), which was aimed primarily at criminalizing sex work clients and those who obtain or purchase sexual services (see Criminal Code s. 286.1). The new legislation advances the position that sex workers are victims, clients are predators, and the criminalization of clients and third parties will ideally result in prostitution eventually being eradicated (Bill C–36 2014). One of PCEPA’s legislative objectives is to protect sex workers,Footnote 1 with the Act’s preamble stating that the government “recognizes the social harm caused by the objectification of the human body and the commodification of sexual activity” (Bill C-36 2014, n.p.). As a criminal justice policy approach, however, both international evidence and sex workers’ own accounts suggest that criminalization of clients is ineffective at best, and can instead result in significant harms to sex workers (Danna Reference Danna2012; Fritsch, Heynen, Ross, and van der Meulen Reference Fritsch, Heynen, Ross and Meulen2016; Gould Reference Gould2001; Kulick Reference Kulick2005; Levy and Jakobsson Reference Levy and Jakobsson2014; Lunds Reference Lunds2007; NSWP 2011).
While the effects of PCEPA on sex workers are being studied and debated, less attention is being paid to how it is affecting their clients. Yet client understandings of the law shape the ways in which they respond to it, and their responses can, in turn, affect sex workers. This paper explores whether there has been a change in the way clients view themselves in relation to the new law and whether they are modifying, or suggesting that they modify, their patterns of behaviour in response. Although clients have been understudied relative to sex workers, research and publications have nonetheless provided an interesting “window into the world of men who pay for sex—a window which has only ever partially been opened” (Earle and Sharpe 2008, 77; also see Atchison Reference Atchison2010; Benoit and Shumka Reference Benoit and Shumka2015; Lowman and Atchison Reference Lowman and Atchison2006; Milrod and Weitzer Reference Milrod and Weitzer2012; Sanders Reference Sanders2008; Weitzer Reference Weitzer2009). Much of the small but growing body of scholarship has focused on client socio-demographics and/or clients’ motivations for purchasing sexual services, finding that they tend to reflect the population as a whole and have diverse and varied reasons for seeing sex workers (Khan Reference Khan2015; Monto and Milrod Reference Monto and Milrod2014; Pettinger Reference Pettinger2011; Soothill and Sanders Reference Soothill and Sanders2005; Wortley, Fischer and Webster Reference Wortley, Fischer and Webster2002). Research that engaged over 250 clients in Canada, for example, found that the majority seek services that include companionship and conversation (Benoit et al. Reference Benoit, Atchison, Casey, Jansson, McCarthy, Phillips, Reimer, Reist and Shaver2014). Empirical research has thus provided nuanced ways of conceptualizing clients, which can help to challenge the reductionist tropes and popular portrayals of men who purchase sex as “deviants” or “perverts,” as suggested by many anti-prostitution advocates, policy makers, and others (for critiques and analyses of this perspective see Khan Reference Khan, Durisin, Meulen and Bruckert2018; Kulick Reference Kulick2005; Sanders Reference Sanders2009).
Given the framing of clients in PCEPA as the key driver of exploitation and the resulting criminalization and persistent stigmatization of their activities, assessing their changing perceptions and knowledge of the new legislation is no easy task. One effective way to better understand their experiences is to examine the online communities and sex work review forums on which many of them engage (Holt, Blevins, and Kuhns Reference Holt, Blevins and Kuhns2008; Monto and McRee Reference Monto and McRee2005; Pettinger Reference Pettinger2011; Soothill and Sanders Reference Soothill and Sanders2005). Christine Milrod and Ronald Weitzer, for example, looked at online forums to study what they consider “a rapidly emerging category of men who seek sexual services online” (2012, 792). We follow this tradition in our exploration of how clients make sense of the new laws on a major Canadian online sex work review forum. We begin by introducing user-generated content, our methodology, and the forum that comprises the current study. We then consider literature on constitutive approaches to law, and in doing so, we present three key insights revealed through our analysis of the forum threads: first, despite Canada’s new criminal sanctions, those who post messages and comments on the sex work review forum tend to view themselves as “not-Criminal,” a position that is equally reliant on stereotypical depictions of who “real” criminals are (or ought to be) and on their characterization of themselves as “ordinary citizens”; second, legal confusion of the new legislative framework is apparent, including misunderstandings and lack of knowledge over which activities are criminalized and which law enforcement services have jurisdiction; finally, forum posters engage in hybrid risk knowledge practices and develop a variety of strategies to resist or rebuff criminalization, and they further recommend that others do the same. Together, these themes begin to illuminate clients’ constitution of risk knowledges and their varied understandings of their own criminalization. These data are particularly important in the current climate because client behavioural modifications and changing patterns of engagement can increase sex workers’ own marginalization and vulnerability, running counter to the (contradictory) protective claims made in PCEPA.
Online Research and User-Generated Content
The diversity and abundance of online communities reflect a near infinite variety of social interests. Online communities “form or manifest cultures, the learned beliefs, values, and customs that serve to order, guide, and direct the behaviour of a particular society or group” (Kozinets Reference Kozinets2010, 12). Such spaces can facilitate connections between people who may be socially or geographically separated, and often function as virtual meeting places for individuals who have stigmatized identities or engage in illicit behaviors, and may thus not be able to meet in “real world” settings without fear of discrimination (see, for example, Stetina et al. Reference Stetina, Jagsch, Schramel, Lederman Maman and Kryspin-Exner2008). Zoe Davey and colleagues describe online forums and communities as spaces “where individuals sharing interests in similar albeit unconventional topics can establish a broad, self-renewing and up-to-date network, which might not otherwise have been possible” (2012, 37). Examination of the user-generated content within these communities, which includes any postings or other content that is created by users, is becoming increasingly valued as a rich form of data. In part because online posts are automatically archived and include the publication date as well as any material that precipitated the post. Thus, the temporal element of user-generated content lends itself well to the observation both of attitudinal shifts across time and of immediate responses to social events or, in our case, to legal changes. Indeed, research on user-generated content is well suited for scholars who are interested in examining how knowledges are formed within networks.
On their face, online forums and the communications therein seem to assume the form of a mass public sphere. However, assumptions of the essential “public-ness” of online communications has been viewed as contentious; that is, while user-generated content is publicly available, the users themselves might think of the virtual spaces in which they are participating as private venues. Situating this discussion in relation to the historically salient debates, reconfigurations, and rejections of the conceptual distinctions between the public and private spheres has generated important ethical and procedural questions about research on user generated content. One particular ethical implication of the public–private distortion pertains to whether informed consent is required by researchers given the “public accessibility” of online content. Some suggest that it should be treated like data collected through observation, whereas others believe that despite the ease in access, user-generated content is produced under the assumption of “perceived privacy” and thus should be respected and treated as if occurring in a private space (see Harricharan and Bhopal Reference Harricharan and Bhopal2014; Im and Chee Reference Im and Chee2006; Wilkerson et al. Reference Wilkerson, Iantaffi, Grey, Bockting and Rosser2014). Due to the relative novelty and newness of online methodologies, formal ethical guidelines have yet to be developed and scholars remain divided on how to effectively transfer the longstanding established standards of what constitutes rigorous and ethically sound social scientific research to online research methods (Davey et al. Reference Davey, Schifano, Corazza and Deluca2012; Rodham and Gavin Reference Rodham and Gavin2006).
In the interim, Karen Rodham and Jeff Gavin suggest that “researchers who wish to complete their research via the online environment, in the absence of existing accepted guidelines… must think carefully about the ethical implications of their research” (2006, 92). Indeed, special attention should be paid to ensure that issues related to anonymity and confidentiality have been meaningfully considered and addressed. Anonymity was a central concern of our study due to the heightened criminalization and stigmatization of clients (see also Davey et al. Reference Davey, Schifano, Corazza and Deluca2012; Eysenbach and Till Reference Eysenbach and Till2001). With this in mind, we have not provided the name of the sex worker review forum so as to respect the anonymity of the website and its users, including the sex workers who are mentioned in reviews. We have further followed Amy Bruckman’s (2002) suggestions for “heavy disguise” by removing any personally identifying information, not including clients’ usernames when quoting from their forum posts, and ensuring that quotes are not publicly searchable and traceable.
Scope of the Review Forum and the Data Collection Process
Online communities and sex work review forums are sites for the exchange of information and for interactions and communication to take place among clients and between clients and sex workers. Sarah Earle and Keith Sharp have suggested: “The internet has offered men who pay for sex an opportunity to create a social world in which paying for sex is no longer the activity of the lone, deviant male, but part of a collective, normative social and moral order” (2008, 77). While the forum is primarily a space for clients to post reviews of sex workers, it additionally functions more broadly as an online community, and is an important venue for sex workers to establish their reputation and “brand” as well as to advertise their services, thereby increasing their earning capacity. Further, clients who are anxious or who may be looking for information about PCEPA and the legislative changes can turn to the forum to speak with and learn from people in a similar position, or at least to commiserate with them.
The forum we examined is comprised of various categories, including a general discussion section, sex worker advertisements, and region specific review pages where clients can seek information or engage in discussions with one another. For the purpose of this paper, we focused our analysis on the general discussion section, which, at the time of data collection, contained approximately 1.5 million individual posts, and received a disproportionately high amount of the site traffic. Discussions are delimited by “threads” that start with a “post” to which others can respond, forming a conversation of sorts. A particular thread’s popularity is measured by the number of responses it receives as well as the amount of times it has been viewed—these totals are displayed beside the thread’s title. Threads deemed important for the online community, such as the guide for new members, are “stickied”—meaning they are permanently fixed to the top of the forum’s page to ensure that all users will read them, or at least recognize their significance. Forum rules and administration are overseen and regulated by “moderators,” who can, among other things, ban users, create new sub-topics, and delete threads deemed superfluous or those that contravene the forum rules. Here we focus exclusively on the forum’s “posters,” a term we use to refer to those who write posts and are active on the threads. We italicize the excerpts from posters below to distinguish their voices within the paper.
Data were collected from the forum between March and October 2016, less than two years after the new legislation was enacted. The legal changes were of clear importance to forum members as illustrated by a PCEPA-specific stickie. At the time of writing, the stickie, which began in 2014, had been viewed 65,535 times and contained 3,033 replies, far surpassing all other stickies, including the new user guide, which had been viewed 31,217 times with only forty replies since 2003. The forum’s technological capacity is limited, particularly the search function, which does not accept phrases, the use of Boolean operators, or queries that contain fewer than four characters. Thus, the commonly used terms “C36” and “C–36” were too short to be searchable, greatly limiting our ability to explore for patterns across the threads. We were interested, for example, in investigating whether a series of police raids on Asian massage parlours in 2015 had influenced clients’ perceptions of the new laws. Entering the keywords “Asian” and “PCEPA,” however, simply brought us to posts where either term was used. Additionally, it is not possible to export the content to a data analysis software program, which confined our search parameters to the existing capabilities of the site itself. Therefore, our search terms were restricted to single word queries, including: PCEPA, police, arrest, sting, raid, and surveillance. We acknowledge that our method lacks traditional sampling procedures, and, due to the format of our site of analysis and concerns about anonymity, we did not collect socio-demographic information about the forum posters.
Given these limitations, in what follows, we do not present our findings as broadly generalizable. That said, there are interesting comparisons that can be made between our study and those of others who likewise examine online sex work review forums, especially given the presence of a shared community and the similar activities in which posters engage. In a recent study of internet-based sex work in the United Kingdom, for example, Sanders and colleagues (2018) discuss how the proliferation of “cyber communities” facilitated by communication in online venues such as review forums has restructured the social relations amongst sex workers and their clients. Our study thus contributes to the growing body of research on sex work clients.
Analytic Framework and Findings
Drawing from constitutive approaches to legality, we conceive of law as a system that constitutes and shapes social relations while also being embedded within the very fabric of these relations. Unlike contractarian or liberal approaches, which view law as a reflection of social harms that have been mutually agreed upon by a polity, a constitutive analysis looks to uncover the relation between normative value systems and legal processes which constitute cultural forms, everyday practices, the shaping of subjectivities, and interactions among and between groups (e.g., Ewick and Silbey Reference Ewick and Silbey1998; Merry Reference Merry2006; Scoular Reference Scoular2015). Moreover, these perspectives seek to dislodge the elitist and privileged position of law with respect to the formalist claim—law’s “dream” in the words of Mariana Valverde (Reference Valverde2003)—of a transcendental sphere of knowledge and meaning that is tightly guarded and otherwise inaccessible outside of its monopolization by legal actors. As Jane Scoular (Reference Scoular2015) notes, a constitutive approach is particularly apt for inquiries that look beyond law’s capacity to regulate how law is constitutive of particular subjects. In this tradition, throughout this paper we use the capitalized “Criminal” to refer to the common idea of a “criminal” as distinct from the quasi-legal category of “offender.”
Our analysis is couched in the concept of “subject positioning,” which Bronwyn Davies and Rom Harré describe as “the discursive process whereby selves are located in conversations as observably and subjectively coherent participants in jointly produced story lines” (1990, 48). Essential to subject positioning is the way that individual speakers dialogically explain “fragments of [their] autobiograph[ies]” in a way that “assigns parts and characters in the episodes described, both to themselves and to other people…” (48). Our line of inquiry, however, does not approach the “subject” as though it were an analytic category. Rather, our empirical focus is on the hybrid knowledges about law and risk which are “circulating, changing, being taken apart, and reassembled in new shapes” on the forum (Valverde, Levi, and Moore 2005, 89). The posters’ risk knowledge employ multiple rationalities and are an inventory composed of experiential insights that draw from a range of sources, including the forum itself. These knowledges are neither “expert” nor “non-expert” but, rather, are what Jens O. Zinn refers to as “in-between” (2016, 349). We consider the effects of these knowledges on posters’ subjectivities and how they attempt to navigate the risks posed by the new legal regime.
Ordinary Citizens: Posters’ Refusal of the Criminal Subject Position
Conversations about Canada’s new purchasing offence made up a wealth of threads across the forum, indicating clearly that the authors and readers of these posts were aware that paying for sex had become a specific criminal offense. Interestingly, however, posters routinely refused the Criminal subject position with claims such as “We are not criminals.” Posters imagined that they could be arrested only if they found themselves in the wrong place at the wrong time—such as when police were going after the “obvious” and “real criminals,” to use their words. The following excerpt from a thread where posters discussed a news article about a “trafficking” bust further exemplifies the sentiment: “most of the people arrested were ringleaders—they deserve it… The clients probably had the bad luck of being there at the time of the bust.” The logic of these comments reveals a paradox of sorts. On the one hand, posters were aware that they could receive criminal charges for purchasing sexual services. On the other, they describe their imagined arrests as happening if they were “accidentally caught up” in a police investigation, not as the result of engaging in a criminalized activity themselves. Here we can see that posters realize they are committing a crime for which they can be arrested, yet this arrest is not described as the result of committing that crime. Rather, they imagine being arrested only if they are misfortunate enough to get “accidentally caught up” with a real Criminal.
We view this paradoxical story as stemming from the conflict between posters’ self-views as “ordinary citizens” and their ideas about the Criminal. In our examination of forum threads and discussions that occurred prior to the enactment of PCEPA, posters described themselves in ways that made them categorically distinct from the Criminal. Now that they engage in a specifically criminalized activity, however, they must reconcile the internal conflict this creates. We use Davies and Harré’s narrative metaphor here to describe how posters “negotiate a new position by ‘refusing’ the position that has been made available to them” (1990, 53) through the new sanctions against obtaining or purchasing sexual services. As identified by posters across the forum, real Criminals are “pimps,” “traffickers,” and “bad clients.” By naming what they are not, posters recognize themselves as coherent and familiar, and position themselves against the figure of the Criminal.
Posters also distinguished themselves from the Criminal by invoking the language of the everyday in their self-descriptions, saying for example: “We are ordinary citizens…. Your neighbours, friends, family members… professionals… lawyers, teachers… We are not doing anything wrong.” The language of “we” clarifies and maintains the discursive boundaries between ordinary citizens and criminals, with clients falling into the former category and sex workers, third parties, and so-called bad clients falling into the latter. Another comment that police and law enforcement are “not much interested in ‘our kind’” offers a further example of the moral community established on the forum. These posters maintain their non-Criminal position, in part, through the perceived ordinariness of the community members. In constructing their narratives, posters act as both screenwriter and casting director. Their authorial imagination, however, is limited by their own positions and their understandings of the assignation of roles within existing social structures (Davies and Harré Reference Davies and Harré1990). Thus, by acting and speaking from the static position of the persona naturalis, posters draw from their own particular histories as subjects, which eschews the hollow rationalist construction of both the citizen qua rights-bearing legal subject and the criminal subject. Their individual and collective histories as not-Criminal supplant their current criminalization; they remain ordinary citizens who just happen to enjoy an activity that is now a crime. For them, the Criminal does not emerge from a corresponding criminal offence, and is subject neither to constitutive flux nor to the ebbs and flows of legislative changes. Instead, like the ordinary citizen, the Criminal is understood as a static position with permanent occupants.
In many instances, posters’ casting of the Criminal drew from racist stereotypes that equate bodies of colour, in particular the Black male body, with criminality and danger. This can be seen in a poster’s comment that at first appears to challenge such notions: “There’s a misconception that all pimps are black. That is simply not true. A few years ago they arrested a white pimp (maybe an albino).” As is evident in this quotation, “pimps” are widely believed to be Black men, to the extent that even a “white pimp” is assumed to be a Black albino man (Williams Reference Williams2015). These depictions are part of broader popular and media discourses of the racialized other who is assumed to be engaged in sexually exploitative activities (see, for example, CTV Montreal 2016; Duell Reference Duell2013).
Similar sentiments were routinely expressed in discussions about the enforcement of PCEPA. Often referring to news articles, posters claimed that “pimps and illegal immigrants” were the targets of police efforts, thus reinforcing a we-ness that implies, but far from confirms, that posters are themselves not racialized and/or immigrants. Such a finding would support Martin A. Monto and Christine Milrod’s (Reference Monto and Milrod2014) evidence that clients who engage in online communities tend to be disproportionately white, with high income and education levels. We provide these examples to illustrate how posters’ knowledges of the Criminal are hybrid in that they are assembled through a host of public (i.e., news media) and local sources (i.e., other forum posters), as well as popular tropes and stereotypes.
Posters further refused the Criminal subject position by identifying themselves as potential victims to blackmail. This topic of sex workers blackmailing their clients garnered so many comments there is an entire thread devoted to it. Posters discussed situations “where a relationship between a [sex worker] and client turns sour and the [sex worker] threaten[s] to blackmail and expose the client…” Although the threat of blackmail is not new—it was discussed on the forum pre-PCEPA, albeit to a lesser degree—posters speculated that blackmail will happen more frequently now because the purchasing offence gives sex workers more leverage over their clients. As this poster articulated: “I am referring to the ‘bad apples’ that take advantage of their client even before C36. This bill shields their safety and puts them in a powerful position should they choose to abuse it.” Such an assumption demonstrates how clients position sex workers as immoral and Criminal, ready to capitalize on their new vulnerability. As one poster wrote: “Some girls that put themselves on the market only do so for the intent of finding a victim.” Comments such as these illuminate the irony of the positioning of sex workers in the new legislation as powerless victims in need of protection from clients,Footnote 2 while forum posters, who are specifically targeted by the new laws, feel that sex workers have gained too much legal power and that they themselves may be victimized as a result. Perhaps it is precisely sex workers’ lack of definitional quality that has contributed to their seemingly endless tenure as dual criminal and victim, or risky and at-risk (Bruckert and Hannem Reference Bruckert and Hannem2013; Wright, Heynen, and van der Meulen Reference Wright, Heynen and Meulen2015). This duality is particularly evident in PCEPA, where the laws are intended to take “tough action to crack down on pimps and johns” who exploit vulnerable sex workers, while simultaneously targeting sex workers who are associated with “violence, drug-related crime, and organized crime” (MacKay Reference MacKay2014, n.p.).
Legal Confusion: (Mis)Understanding Criminalization and Policing
Some posters expressed confusion about PCEPA and the new il/legalities of sex work in general, asking “Did you break the law…?” The textual vagueness of PCEPA, particularly the ambiguous term “sexual services,” was among the most central sources of legal confusion that we observed—as one poster asked: “What the hell is sexual services?” Many were unclear of what specific activities would constitute a sexual service, and whether criminal sanctions would be differently applied depending on where and with whom those services were acquired, for example in massage parlours, strip clubs, or with escorts. In the words of one poster: “So what can we do in a [massage parlour] that is legal??? … What constitutes sex??? Can you both be nude??? … Can you masturbate with her in the room???? Can you talk dirty???”
To avoid potential police surveillance and criminal charges, many sex workers and escort agencies have now removed explicit and euphemistic references to sex acts from their websites (Sterling Reference Sterling, Durisin, Meulen and Bruckert2018). Although the legal changes are still recent, euphemisms are hardly a new addition to the online communities of the sex industry. Clients have long been required to read the meaning within and behind the written word, some doing so with greater success than others. It appears, however, that the new implied meanings have been lost entirely on some posters, for example: “I have seen a few escort agencies saying that they will no longer offer sexual services. Is this really going to happen, or is it just a cover to comply with C36?” More commonly, posters expressed frustration over the legal changes and resulting modifications to sex work websites because they “no longer know what to expect when booking a ‘companion’ since their services are no longer shown.” Enhanced secrecy is a direct response to two other additions to the Criminal Code with PCEPA, specifically, the criminalization of advertising “an offer to provide sexual services for consideration” (s. 286.4) and “receiving a material benefit from sexual services” (s. 286.2). These offences, however, do not apply to clients, but are instead aimed, in part, at third party websites that promote and host sex workers’ ads, like the review forum under investigation here. Yet, the protective strategy of removing certain words and modifying language on websites has led to some clients being confused and feeling as though the “law has already impacted us in a big way” even in the absence of enforcement. Or, as one poster wrote, “No enforcement needed!! Definitely changed the industry without actually doing anything.”
Posters also expressed confusion about the distinction between the various policing bodies that regulate the sex industry and sex workers. The scope of power held by the different jurisdictions and the myriad ways these powers interpenetrate was especially unclear for many. The online argot of the sex industries, comprised of acronyms that describe sex acts, sex workers’ physical attributes, and various key terms, is used on the study forum (and other online discussion boards internationally as well). In this argot, the term “LE,” an abbreviation of “law enforcement,” is used to describe all law enforcement officers and agencies without distinguishing between federal, provincial, or municipal police, or municipal bylaw enforcement or inspection officers. Generally, the argot functions as a protective strategy when posters are writing a review or communicating directly with a sex worker, as it allows for communication about specific services without explicitly naming those services. However, the argot can also foster a broader sense of online community, and suggests some measure of trust and affinity among forum members, as in the following case.
When comparing discussions of two extremely similar incidents, one that took place before PCEPA and the other after, we observed a shift in the significance of “LE.” In particular, we noted a dramatic increase in other posters’ attention to and engagement with the thread, thus illustrating posters’ exchange of information and the development of their intersubjective legal understandings. In both examples discussed on the forum, the original posters reported that “LE” entered the massage parlour right after they had completed a session with a sex worker. Although both posters recounted that they spoke directly to the officers, neither received a fine or a charge. The threads, however, unfolded in markedly different ways with the pre-PCEPA example receiving fifty-nine replies, mainly containing pseudo-legal discussions about the implications of refusing to produce identification when asked by “LE.” By contrast, the post-PCEPA thread comprised 282 replies, with posters commonly asking where the incident happened, presumably so that they could avoid seeing sex workers at that same location. A near similar number of posters asked whether “LE” in this instance referred to municipal bylaw officers or police officers:
Going forward, it might clarify things a bit if we distinguish between police and bylaw officers as much as we can. Before C36 … it made some sense just to use the catch-all term “law enforcement” for the embarrasing [sic] inconvenience of being caught in a [massage parlour]. If we keep using LE when we could and should be more precise, we’ll just be perpetuating and prolonging the confusion about “how it really works.”
As the above poster suggests, the umbrella term “LE” has lost its utility and must be conceptually disaggregated for it to be relevant knowledge. The actual functions, scope, and jurisdictionary powers of the various policing and regulatory bodies have increased significance for clients who are now potential future Criminals.
Locating the Risk: Risk Knowledges and Risk Avoidance Strategies
Posters’ discussions of PCEPA largely centred around knowing the new legal risks of purchasing sex as a way to reduce their probability of arrest. Previously, the risks were known, calculable, and thus manageable. Now after PCEPA, posters believe that their former risk management logics have been nullified: “There was an air of stability around the sex trade since we had years of experience and we knew them [sex workers]. Even though I knew I was taking a risk we knew the level of risk. With this new law there is a lot of uncertainty.” For this poster, knowing the level of risk based on past experiences made him feel that the sex industry was safe (or at least safer than it is now).
To make certain the uncertain, posters engaged in risk knowledge practices to identify which “type” of sex workers were the most probable focus of police attention and intervention, and thus the riskiest from whom to purchase services. Employing a sort of typology, posters deemed Asian women who work in brothels or massage parlours as posing the highest level of legal risk. The process through which posters designated risk to Asian sex workers mirrored the production of the Criminal. Posters engaged in hybrid risk knowledge production which drew from experiential insights, media reports about various law enforcement operations, and the discursive link between Asian women and trafficking (see, for example, CBC News 2015; McIntyre Reference McIntyre2015). In this way, we can see that posters’ risk knowledge practices are hybrid, meaning that they “mix expert and everyday knowledges of risky situations in such a way as to create new assemblages of risk information that are neither scientific nor anti-scientific” (Valverde, Levi, and Moore 2005, 86).
To avoid the risk of being caught in a police raid or encountering a “trafficking ring,” many posters wrote that they will no longer see Asian sex workers and encouraged others to do the same, providing explanations such as: “I should know better than to try one of these Asian places given all the warnings about human trafficking.” Or as another poster commented: “if you’re doing anything involving Asians and sex…there’s a good chance you could be under surveillance…” Still another wrote: “Stay the hell away from Asian spas. … far too high a risk of getting tangled up in a trafficking ring.” Due to the perceived high level of risk, many uncritically accepted the conflation of Asian sex workers and trafficking, which further bolsters the myth.
Women who advertise on Backpage, a low-cost advertising website, were also identified as being very risky due to the possibility that they may be police officers posing as escorts. This designation again seems to both reflect and stem from media reports wherein sites like Backpage are named as hubs for the trafficking of underage girls and are frequently used in police sting operations (see, for example, Alter Reference Alter2015; Fuchs Reference Fuchs2013; Milkovits Reference Milkovits2013; Spalding Reference Spalding2014).Footnote 3 Multiple posters claimed to have noticed a significant increase of advertisements on Backpage shortly after PCEPA came into force. The supposedly suspicious ads were described by three different posters as having a “similar look and feel” to one another, making them “look curious” and “seem fake.” Another wrote that he had “not seen one review” on the forum about the sex workers in the new Backpage ads, which led him to believe that the ads were created by police and “everyone that visited them got arrested.” While other posters stated that they were “not naive enough to think they’re all stings,” they still reported avoiding Backpage to avoid the risk of entrapment.
Seeing well-reviewed escorts was one of the most frequently cited arrest evasion tactics, as sex workers who had been reviewed by many forum posters were seen to pose the lowest risk. As one poster commented: “if you stay with established and well-reviewed [sex workers] your chances of a prosecution would be next to nil.” Another suggested: “Rely on veteran posters for good intel.” In June 2015, a forum poster created a poll and asked members to vote for which type of sex worker they believed would pose the lowest legal risk post-PCEPA. Over one hundred forum members voted in the poll, with 66 percent choosing “well reviewed escorts” and only 3 percent preferring “minimally reviewed escorts.” Although the poll clearly lacks rigour, its results are consistent with the content of the many threads and discussions wherein posters shared information about criminalization. The reviews that posters write about sex workers thus comprise collectively constructed risk knowledges. As seen in the poll and quotations above, reviews of sex workers further function as an effective risk management strategy, with posters’ trust in reviews stemming from their sense of we-ness—they believe other posters share their values and can be trusted to provide “good intel” to keep each other safe.
Clients’ personal information was also identified as posing a major legal risk. This risk differs from those of being caught in a police sting or raid as it persists long after an encounter with a sex worker. As this poster explained: “The general principle here is you do not want the police to be able to find you after the appointment is over.” Posters urged each other to “limit your exposure to the encounter itself” by remaining anonymous. Although they deemed the risk to be located in their own personal information, posters’ logics and usage of phrases such as “limit your exposure,” clearly indicate that the sex worker is viewed as the risk-transmitting subject. Using a personal cell phone to communicate with a sex worker, especially via text messaging, was the most frequently discussed threat to anonymity. One poster wrote that if an escort advertisement lists texting as the preferred method of contact, he will “skip to the next ad and completely ignore [it].” He explained the risk of texting: “You make an appointment with a [sex worker]… If she is arrested by the police… they have… your number. If they wish they can contact you as part of an on–going investigation… The arrest does not have to be sex related for this to happen.” For this poster, the risk of communication is constructed, in part, by the assumption that sex workers are more likely to be arrested than he is, even though clients are now the Criminal in the exchange, thus further clarifying the boundaries of we-ness. The claim that “The arrest does not have to be sex related for this to happen” suggests that some posters draw from stereotypes which associate sex workers with criminality beyond their work. Another poster suggested ways to manage this risk: “Never use your main number… Never provide your real name… Never provide your work info and if they ask make something up.” To circumvent the lack of anonymity with cell phones, many reported using a disposable phone, and they encouraged others to do the same. Posters who were unfamiliar with the technology sought additional information from the forum, by asking: “I’ve never used a disposable phone. I understand you can buy these from most cell phone shops...How do they work? Where can I learn more?”
By examining user-generated content on an online sex work review forum, we can begin to understand how posters’ interactions and communication with one another extend far beyond their mutual interests in indoor sex industries and comprise an online community. The commonality of an industry-specific argot further connects community members within and across forums, regardless of geographic location. Central to this community is the production of risk knowledges, which is particularly significant and relevant in the post-PCEPA Canadian context. By exploring the forum posts and threads, we can see how some clients are making sense of the new legislation and collectively constructing hybrid knowledges about law and risk which, in turn, can negatively affect sex workers. This study thus sheds light on the hidden and unintended consequences of law that may have otherwise been exempt from inquiry.
We found that even while sharing tips on how to avoid arrest, posters did not view themselves as Criminals. Rather, various third parties and sex workers were positioned as criminally immoral figures while posters identified themselves as “ordinary citizens” and at times, as potential victims. The enhanced fear of blackmail that many posters discussed on the forum is a case in point, suggesting that the new laws have exacerbated clients’ feelings of mistrust and animosity towards sex workers. This type of “us vs. them” mentality, where clients believe that sex workers are more motivated to harm and blackmail them because of the new laws, does not lend itself to mutually respectful encounters and can further reinforce stereotypical ideas about sex workers’ immorality and criminality.
Posters also demonstrated degrees of misunderstanding and confusion about which specific activities constitute “sexual services” and are therefore criminalized, as well as the roles and jurisdictions of various policing services. This is especially relevant for those clients who are socially marginalized, as while research on client demographics has demonstrated that they represent all class and racial backgrounds, there are significant disparities in law enforcement aims and tactics. Indeed, studies have found that clients who have been charged for prostitution-related offences tend reflect the “neighbourhoods and individuals that are most targeted by police…” (Wortley, Fischer, and Webster Reference Wortley, Fischer and Webster2002, 378), that is, they tend to be racialized and low income.
In an attempt to better understand and mitigate the new legal risks of purchasing sex, posters discussed engaging in a variety of risk management strategies, such as avoiding particular types of sex workers or changing their communication practices. Our data show that these strategies can result in differing consequences for different groups of sex workers. The most significant impacts in this regard appear to be on Asian sex workers and those who promote their services on low cost advertising websites. The proliferation of narratives that conflate Asian women with sex trafficking victims, together with the rise of robust anti-trafficking law enforcement operations in Canada, have led to increased raids of Asian sex work businesses and the detention and deportation of migrant Asian women (Kempadoo et al. Reference Kempadoo, McFadyen, Pilon, Sterling and Mackenzie2017; McIntyre Reference McIntyre2015). Forum posters discussed the Asian sex worker/trafficking victim conflation and suggested avoiding Asian spas and sex businesses as a result, thus economically marginalizing women who are already targeted by immigration officials and law enforcement. Krüsi et al. (Reference Krüsi, Pacey, Bird, Taylor, Chettiar, Allan, Bennett, Montaner, Kerr and Shannon2014) and other sex industry researchers have found that when sex workers have fewer clients from which to choose, they are more likely to agree to see those whom they might otherwise reject and/or engage in activities that they might otherwise decline (for example, condomless sex). Similar consequences can result for sex workers who advertise on Backpage, a preferred site for many due to its low advertising fees and its lack of credit card requirement. Sex workers with the financial resources to create their own websites and advertise in other, more costly venues remain unaffected when posters recommend avoiding low-cost sites. Once again, women who may already be economically marginalized and thus require access to cost-effective advertising venues are more adversely affected. In these ways, we can see how particular groups of sex workers bear the brunt of clients’ collectively constructed risk knowledge strategies, further deepening stratification within the sex industry.
A final example worth highlighting with regard to posters’ risk knowledges and their resultant efforts to avoid arrest is how their actions or behaviours can be in direct opposition to sex workers’ own safety protocols. We can see, for example, how clients’ efforts to maintain anonymity in order to feel insulated from arrest directly oppose some of the long-standing safety measures employed by sex workers, such as screening. Even the Supreme Court of Canada determined that screening is one of the most significant ways sex workers are able to protect themselves from potentially violent or undesirable clients (Canada (Attorney General) v. Bedford 2013, para. 71). Sex workers’ screening practices can include obtaining a reference from another sex worker the client has previously seen, asking for the client’s full name, phone number, and employment information, documenting or photographing the car’s license plate, and more. Given clients’ increased need to protect themselves from legal scrutiny, however, screening has now become a contentious process. Client anonymity might reduce their risk of criminal charges, but for sex workers, an unidentifiable client compromises their access to legal or other recourse if assaulted or harassed; other than providing a general physical description, the sex worker would not be able to provide information about the perpetrator.
Given these wide-ranging implications and unintended consequences, we suggest that it is crucial to become aware of the various ways that clients produce knowledges of law and criminalization through online forum participation, and how these processes can inform and affect their behaviours. Sex workers, scholars, legal advocates, and others argued strongly that introducing legislation aimed at those who purchase sexual services would lead to harms for sex workers themselves. Our study contributes to the evidence base on how ill-informed and poorly conceived legislation like PCEPA can have far reaching effects, including on those it (purportedly) aims to protect.