Earlier this year in Halifax, a former sex worker won a precedent-setting case. Brogan, the plaintiff, took a client to small claims court for not paying her and she won! It’s the first time a court has ruled on the enforceability of contracts between sex workers and their clients. It affirms what we’ve been saying all along: sex work is work!
In January of last year, Bradley Samuelson contacted Brogan on LeoList, an online advertising platform for sex workers. She told him her rate of $300 per hour plus transportation, he agreed and paid for her Uber to his apartment. She spent seven hours with her client, but after much wrangling, only got paid for an hour’s worth of work.
Unpacking the win
What’s really interesting about this decision is that the adjudicator gives not one, but two reasons why Brogan won her claim—the first being that a contract was established, the second being unjust enrichment. There is also a third reason that she deserved to win, but it wasn’t mentioned anywhere in the ruling: the interconnectedness of payment and consent. I’ll be unpacking all three factors today.
First, the adjudicator agrees that there was a contract between a worker who provides a service for an agreed-upon fee and a client who agreed to pay. Adjudicator Darrel Pink wrote in his decision:
It follows if the work is legal and if the business arrangements supporting the work are legal, then normal commercial law benefits, afforded by civil law, should be available to sex workers.
While Brogan testified in court and was cross-examined, Samuelson chose not to speak to his own defence. His lawyer argued that there is no contract because under the current laws in Canada, selling sex is legal whereas buying it is not. I’m amazed at the audacity of this approach. At the same time, this is exactly the problem with the Nordic model, and this is why sex work should be decriminalized. Under the Nordic model you can sell sex, but you cannot buy it. If half of the business interaction is illegal, it makes it very hard and very complicated for sex workers to put forward civil cases when we are wronged.
First, you have to be brave, because your legal name and true identity are needed to make a claim. This exposes sex workers to stigma, potentially getting fired from mainstream jobs, and the potential for harassment, violence and stalking. Then you have to get a lawyer who is able to make sense of convoluted laws that contradict each other at every turn–the Protection of Communities and Exploited Persons Act (PCEPA) claims to protect sex workers, while also being explicit in its overall aim to eliminate prostitution. It simply doesn’t make sense.
Finally, court proceedings are very stressful and very expensive. There is also a professional risk a sex worker takes when taking legal action against a client or any other legal actions in relation to sex work. In pursuing justice, we break the fourth wall. We break the fantasy in which we’re always eager and available for a good time. There is a risk that we can lose clients if we make too much noise and channel our inner Erin Brockovich as opposed to our inner Pretty Woman.
The second reason the adjudicator gave is unjust enrichment. Basically this means that in those seven hours, Brogan was unable to make money with other clients, while Samuelson received the benefits of her work. This doesn’t even account for the time, stress and emotional labour Brogan put in trying to get Samuelson to pay her, first via text messages after their encounter, and then through the court process.
The role of consent
This case has been widely covered in the media. However, additional considerations about sex work and consent weren’t mentioned anywhere. We do what we do not because we’re sexually insatiable, but because we are working. Our consent is conditional upon payment. If there is no payment, there is no consent. It’s similar to why stealthing negates consent. If you consent to sex with a condom and someone stealths you, that is a form of sexual assault.
Having said that, if pursuing justice via civil courts is daunting and incredibly difficult, pursuing justice as a sexual assault survivor is exponentially more difficult, and even more so for survivors who are sex workers. It’s a retraumatizing process, and considering that sex workers are overcriminalized and overpoliced, I can see why many survivors would rather not go there.
I want to make it clear that I’m not trying to put words in Brogan’s mouth, or speak over her, or turn her into a victim while making my point about consent. It’s her story. She’s an incredibly brave person who got justice not only for herself, but also paved the way for others. Rather, I’m trying to point out that it’s good that there are options for sex workers outside of the criminal justice system, and that there are options for seeking justice that don’t force us into a victim role.
Brogan is no longer in the business and now works as a peer support worker. She’s a badass who gets stuff done, and stands up for herself and the sex worker community. Based on that, I’m sure she’ll shine in her new career!