Decriminalizing Domestic Violence and Fighting Prostitution Abolition: Lessons Learned From Canada’s Anti-Carceral Feminist Struggles

Gillian Balfour

doi:10.5204/ijcjsd.1993

Abstract

This article offers a cautionary tale for efforts to decriminalize domestic violence through a retrospective analysis of Canadian feminist legal activism to decriminalize sex work. Both domestic violence and sex work are contested terrains of activism, litigation, and scholarship and have come up against the disparate views of criminalization as necessary to protect women from violence, versus criminalization as compounding women’s potential risks for violence. Through the example of Canadian feminist jurisprudence in R v Bedford, wherein the Supreme Court of Canada recognized the endangerment of women as resulting from the criminalization of sex work, I explore the liminal space following this decision, and how regressive legislation was introduced to re-entrench carceralism in the breach of a seeming feminist victory. My focus is on how carceral feminism continues to occupy the liminal space as a force of colonial violence, further endangering Indigenous women. I draw linkages between several violent murders of street-involved Indigenous women and the severing of allyship among feminists, sex workers, and Indigenous women over the potential decriminalization of sex work. Finally, I suggest that opposition to the decriminalization of sex work is successfully argued by an emerging force of carceral feminism: neo-abolitionist feminists who have appropriated a politics of abolition and, yet, may have deepened carceralism in the lives of Indigenous women.

Highlights

Leigh Goodmark’s thesis in her 2017 article, “Should Domestic Violence be Decriminalized?” set out the unintended consequence of decades of compulsory criminalization of domestic violence in the US
In Canada, fault lines have emerged between self-described neo-abolitionist feminists who demand the end of prostitution through its continued criminalization, and sex trade work advocates who position criminalization as further endangering women, especially those most vulnerable to predatorial violence
I have suggested here that the failure of decriminalization following the Bedford decision, and the reentrenchment of feminist-inspired carceralism, should be understood relative to the liminal space of how knowledge claims are made and accepted by the state. Sex workers and their allies could not transcend the neo-abolitionist campaign that was already emboldened by a decades-old regime of compulsory criminalization

Summary

Introduction

Leigh Goodmark’s thesis in her 2017 article, “Should Domestic Violence be Decriminalized?” set out the unintended consequence of decades of compulsory criminalization of domestic violence in the US. The expansion of the criminal legal response to the governance of sex workers as victims of prostitution in many ways mirrored the feministinspired compulsory criminalization of domestic violence decades earlier Whereas those feminists sought to expose and denounce gender-based violence through criminalization and vigorous prosecution, the rise of carceral feminism in the wake of these well-intended reforms has been well documented. It is the question of whether we should decriminalize domestic violence that concerns me here, given the Canadian experience of efforts to decriminalize sex work and the subsequent deepening of carceralism that resulted, for Indigenous women. I explore the hard-won allyship among feminists and sex workers that lies in disarray following the enactment of PCEPA and how we should consider the liminal space of law reform efforts

Forging and Severing of Allyship

The Liminal Space of Bedford

Carceral Feminism as Colonial Violence

Conclusion

Findings

Legislation Cited