Tag Archives: ethics

Remembering Judge Himel: Bold assertions and inflammatory language not useful to the court

Last week I spent most of a day watching the Supreme Court’s hearing of arguments on Canadian prostitution law, the upshot of four years of legal battling since the Ontario Superior Court of Justice’s 2010 decision that it was unconstitutional. (I tweeted the event, look here on 13 June). While studies of different kinds were sometimes mentioned at the Supreme Court, no so-called experts (on the basis of academic-style research) spoke. This contrasts with what happened at the original trial.

In October 2010 I ran excerpts from Judge Himel’s decision on her experience and understanding of opposing expert opinions about the harm of prostitution on society and the harm of the law on those who sell sex. I have the impression Judge Himel was appalled by some of the declaiming she heard, and I am surprised the anti-prostitution witnesses did not think about moderating their strident tone before appearing in a High Court. Before I write about the Supreme Court hearing, here again are the excerpts. Himel’s thinking is interesting to people interested in the idea of evidence – what qualifies, how it’s evaluated. Or read her full decision. Before discussing experts’ views she addresses conflicting evidence from women who sell sex.

Evidence from Prostitutes and Former Prostitutes

[85] The applicants submitted affidavits from eight witnesses who described their perceptions and experiences of working as prostitutes. During oral argument, the applicants’ counsel submitted that the purpose of these witnesses was to provide “corroborative voices” . . . [86] The affiants came from varied backgrounds and from across Canada, but largely shared the experience of finding prostitution in indoor venues generally safer than street prostitution (indeed, a few experienced no violence at all working indoors). . . they entered into prostitution without coercion (although financial constraints were a large factor) and most reported being addiction-free and working without a pimp.

[87] The respondent tendered nine affidavits from prostitutes and former prostitutes, whose stories painted a much different picture. The respondent’s witnesses gave detailed accounts of horrific violence in indoor locations and on the street, controlling and abusive pimps, and the rampant use of drugs and alcohol.

[88] While this evidence provided helpful background information, it is clear that there is no one person who can be said to be representative of prostitutes in Canada; the affiants are an extremely diverse group of people whose reasons for entry into prostitution, lifestyles, and experiences differ.

Expert Evidence

[99] While neither party disputed that the other party’s witnesses were, in fact, experts, a great deal of argument and evidence was devoted to criticizing these witnesses. Both parties alleged that certain experts were biased, that conclusions were generalized beyond the sample studied, that studies were methodologically flawed . . .  [114] The following factors are relevant to the consideration of the weight to be given to expert evidence:

  • a) Unwillingness of the expert to qualify an opinion or update it in the face of new facts provided (often in cross-examination);
  • b) Bold assertions without a properly outlined basis for the claim;
  • c) Refusal to restrict opinions to expertise or the expertise demarked by the judge as required by the court;
  • d) Lack of sufficient independence from the party proffering the expert; and
  • e) Prior history as an advocate on the topic.

[182] In reviewing the extensive record presented, I was struck by the fact that many of those proffered as experts to provide international evidence to this court had entered the realm of advocacy and had given evidence in a manner that was designed to persuade rather than assist the court. For example, some experts made bold assertions without properly outlined bases for their claims and were unwilling to qualify their opinions in the face of new facts provided. While it is natural for persons immersed in a field of study to begin to take positions as a result of their research over time, where these witnesses act primarily as advocates, their opinions are of lesser value to the court.

[183] The evidence from some of these witnesses tended to focus upon issues that are, in my view, incidental to the case at bar, including human trafficking, sex tourism, and child prostitution. While important, none of these issues are directly relevant to assessing potential violations of the Charter rights of the applicants.

[352] I find that some of the evidence tendered on this application did not meet the standards set by Canadian courts for the admission of expert evidence. The parties did not challenge the admissibility of evidence tendered but asked the court to afford little weight to the evidence of the other party.

[353] I found the evidence of Dr. Melissa Farley to be problematic. Although Dr. Farley has conducted a great deal of research on prostitution, her advocacy appears to have permeated her opinions. For example, Dr. Farley’s unqualified assertion in her affidavit that prostitution is inherently violent appears to contradict her own findings that prostitutes who work from indoor locations generally experience less violence. Furthermore, in her affidavit, she failed to qualify her opinion regarding the causal relationship between post-traumatic stress disorder and prostitution, namely that it could be caused by events unrelated to prostitution.

[354] Dr. Farley’s choice of language is at times inflammatory and detracts from her conclusions. For example, comments such as, “prostitution is to the community what incest is to the family,” and “just as pedophiles justify sexual assault of children….men who use prostitutes develop elaborate cognitive schemes to justify purchase and use of women” make her opinions less persuasive.

[355] Dr. Farley stated during cross-examination that some of her opinions on prostitution were formed prior to her research, including, “that prostitution is a terrible harm to women, that prostitution is abusive in its very nature, and that prostitution amounts to men paying a woman for the right to rape her.” [356] Accordingly, for these reasons, I assign less weight to Dr. Farley’s evidence.

[357] Similarly, I find that Drs. Raymond and Poulin were more like advocates than experts offering independent opinions to the court. At times, they made bold, sweeping statements that were not reflected in their research. For example, some of Dr. Raymond’s statements on prostitutes were based on her research on trafficked women. As well, during cross-examination, it was revealed that some of Dr. Poulin’s citations for his claim that the average age of recruitment into prostitution is 14 years old were misleading or incorrect. In his affidavit, Dr. Poulin suggested that there have been instances of serial killers targeting prostitutes who worked at indoor locations; however, his sources do not appear to support his assertion. I found it troubling that Dr. Poulin stated during cross-examination that it is not important for scholars to present information that contradicts their own findings (or findings which they support).

[358] The applicants’ witnesses are not immune to criticism. . . During cross-examination, Dr. Lowman expressed discontent with portions of his affidavit, citing “careless” language and “poorly reasoned argument.” Dr. Lowman rightly takes responsibility for the content of his affidavit, which was drafted for him by law students. In his affidavit, Dr. Lowman made a direct causal link between the Criminal Code provisions at issue and violence against prostitutes; however, during cross-examination he gave the opinion that there was, rather, an indirect causal relationship. Such inattentiveness on such a crucial issue is indeed concerning. During cross-examination, Dr. Lowman gave nuanced and qualified opinions, which more accurately reflect his research.

–Laura Agustín, the Naked Anthropologist

Chink in the Evangelical wall: Sex trafficking, colonialism and Christian ethics

In Are Evangelicals Monopolizing, Misleading US Anti-Trafficking Efforts? Yvonne Zimmerman, author of Other Dreams of Freedom: Religion, Sex, and Human Trafficking, is asked if US anti-trafficking crusades could be called colonialist. She replies, ‘It’s an argument waiting to be made’. Since I’ve been making it for ten years, I had to write to her. It’s certainly true that the critique of colonialism is not often heard, despite the term Rescue Industry‘s spread.

Evangelical bloggers did not like hearing the word. John Mark Reynolds reacted scathingly in Surprise! Evangelical Efforts Against Sex-Trafficking are ‘Colonialist’! followed by Derek Rishmawy in Sex-Trafficking, Evangelical ‘Colonialism’ and the Blasphemy of the Holy Spirit. He gets prize for the most ignorant sarcastic crack: If that’s ‘colonialism’, then it’s the holy colonialism of God at work through his people. Welcome to the White Man’s Burden, shamelessly justified all over again, where the idea of colonialism is treated like a joke – or ‘joke’.

To make things worse, Reynolds used a flagrantly racist image to bias his own piece, showing a dark-skinned and/or dirty man handling an innocent white child. The shot is one of several someone created for campaigning purposes – whether they understood the inherent racism I don’t know.

I asked Yvonne to tell me what Other Dreams of Freedom is about and why she wrote it.

It is very popular for American Christians to be involved in anti-trafficking activism. Although some American Christians are interested in a broad understanding of trafficking that includes exploitative labor, usually they mean sex trafficking. And usually by sex trafficking they mean commercial sex – any exchange of sex or sexual services for money. They think that if people no longer sell sexual services they will be free from trafficking, so they favor programs that ‘fight trafficking’ by trying to get people to leave the sex industry. Means to this end vary from educational scholarships to job-training programs to brothel raids. In terms of law and policy, many American Christians support the abolitionist agenda to criminalize all sex-money exchanges.

I am a scholar of religious studies and ethics. I wrote Other Dreams of Freedom to examine why this anti-trafficking perspective feels so appealing and ‘right’ to many American Christians. When I was doing the research between 2005 and 2008, George W. Bush was president and his administration was constructing an international anti-trafficking agenda, often referring to God, God’s intent for human life and Good and Evil. I focused on anti-trafficking legislation (TVPA), the Office to Monitor and Combat Trafficking in Persons, the annual Trafficking in Persons (TIP) Report, public policy statements and press releases. These were not trying to be religious, but I saw how they expressed a very particular religious and moral sensibility.

But Other Dreams of Freedom is about more than Bush. The understanding of human trafficking that his administration endorsed is wildly popular in the US; Americans who identify with a wide variety of other religious traditions defend this view. My book shows how Christian theology rooted in Reformed Protestantism infuses and shapes much American culture and moral sensibility, including the connections between sex, freedom and morality. My analysis of the theological sources clarifies why Americans are so quick to see commercial sex to be inherently degrading and immoral. The book discusses the unintended consequences of using a single religious perspective to build foreign policy in a multi-religious world.

Morgan Guyton at Mercy not Sacrifice also wrote about the original interview, and Yvonne left a comment that mentioned me, so I left something, too. Guyton replied:

What I have carried with me from my first job at a little NGO in DC called the Nicaragua Network is that any kind of real support we offer to people in disadvantaged situations anywhere must always have its terms dictated to us by the people we’re supposedly helping. We called it the solidarity model. In Christianese, I would call it ‘servanthood’ rather than ‘service’. It’ s great that young evangelicals are interested in social justice, but it seems like the way it’s often packaged makes it more like a form of tourism than anything else. I’m interested in reading more.

Yvonne Zimmerman is Assistant Professor of Christian Ethics at Methodist Theological School in Ohio.

Note that Christian Evangelism exists outside the US and behaves similarly when it comes to trafficking: here is a recent note about CARE in the UK.

Laura Agustín, the Naked Anthropologist

Journal specialises in sex workers’ ideas and research: call for papers

Sex-industry research is fraught with biased assumptions, flawed methodology and lousy ethics. There are exceptions, but they are scarce, including from the academic side. It now seems long ago that activists pushed the idea of PAR – participatory action research – as a way to get people being researched (in the passive sense) involved actively as subjects. PAR isn’t mentioned so often now, but its new incarnation is – community-based research. In both, ideas for research are meant to be generated by subjects themselves, by people outsiders often consider either toconstitute a social problem or to be so disempowered they cannot help themselves and others need to do it for them – a fundamental tenet of the Rescue Industry.

Some people think only the most formal investigation qualifies as research – the scholarly or scientific. Others say the investigation has to be systematic. Is the goal to establish facts or to collect information? In the world of social science, the notion of facts is hard to sustain. A conversation in a café can sometimes be research. On the other hand I don’t believe it’s useful to just call everything research, and there’s a research tag in the cloud to the right precisely because so much stuff calling itself research is bad in any of a number of ways.

This year I am editing a journal called Research for Sex Work, which is published by the NSWP (Network of Sex Work Projects). I have always liked this journal because it is a hybrid: not technically academic at all but using peer review, and the priority is on articles written by sex workers themselves. I have myself published several times in the journal, and they are pieces that have been translated and republished often. Here is the Call for Papers just published; please distribute to your networks.

Research for Sex Work is seeking contributions for its next issue, on HIV and Sex Work. This international journal provides a platform for the exchange of ideas, experiences and research results on the subject of sex work in a framework of health and human rights.

We give priority to submissions from sex workers – individuals and groups. Although it’s not an academic journal, we do send articles out for review, to achieve the highest possible quality and credibility amongst policymakers. Most readers and authors come from sex worker groups, support organisations, HIV prevention projects, local and international NGOs, universities, research institutes. The journal aims for coverage of all geographical regions.

We welcome three types of writing : 1- research results, 2- project or programme descriptions and 3- think pieces. Submissions must be in English, but don’t worry if yours is not perfect – we will edit. Maximum length is 1200 words.

If you have an article idea or a question, write to the editor, Laura Agustín, at R4SW.Editor[at]nswp.org by 7 July 2012.

Finished articles will be due 1 August 2012, and authors will need to be available by email to answer questions and make corrections over the following month or so.

We also are looking for high-resolution photos for which you own the rights. Write first to describe them to R4SW.Editor[at]nswp.org.

This edition will be bilingual: English/Chinese.

Here you can find a history of the journal and see earlier editions.

–Laura Agustín, the Naked Anthropologist

Alternate Ethics: Why it is okay to lie to researchers, as a sex worker, drug user or anybody else

Furry Girl recently ran a quote from a piece I wrote some years ago, suggesting that it can be perfectly ethical for sex workers, drug users or anyone else to avoid answering researchers’ questions or lie to them, if participating in the research seems necessary for some reason. Those worried about traffickers and pimps coercing women to sell sex might like to know that a lot of other coercion goes on, not least from organisations that make people feel they should cooperate when institutional or individual researchers come round asking questions. Research is not holy, there are interests involved, and, incidentally, it doesn’t make things automatically all right if the researcher says she or he is a sex worker.

Alternate Ethics, or: Telling Lies to Researchers (click here for the pdf or keep reading below)

Laura Maria Agustín, Research for Sex Work, June 2004, 6-7.

On the subject of ethics in sex work research, we usually think of the insensitivity and careerism of researchers whose interest is in obtaining information they will take credit for. I want to point to another problematic angle: the issue of whether those being researched are honest with researchers. Why, after all, should people who are being treated as objects of curiosity tell the truth?

We are all so surrounded by research projects that they seem to be a natural part of life, but what is research for? While often presented as pure advancement of knowledge, research is often integral to people’s jobs, whether they work in government, NGOs or universities, and the audience for whatever they find out is first and foremost whoever paid for the research.

Institutional research projects are required to explain the investigator’s ethical responsibility to the people researched. But the assumption is that once research begins, researchees will cooperate, freely telling researchers what they want to know. Since this side of the research relationship has not usually been given any choice about participating, it has also not been required to agree to an ethical standard of behaviour. Since no universal ethics exists, it is no criticism to say that research subjects simply may not tell (all) the truth to researchers.

Sad stories, omissions and outright lies

When a person working in an ‘irregular’ trade is approached by a professional-looking person from the straight world, and is not a paying customer, he or she is naturally viewed with suspicion. In the worst case, the visitor may be working for the police; in the best case, be someone giving out free condoms or needles. Of course, researchers have to find a way to ‘gain access’ to their subjects, making friends with the head of an NGO or a bar or convincing a doctor of their good intentions, and thus may be introduced as an ‘ally’. This goes for those conducting any kind of research using any kind of methodology. But even if the person comes with a good introduction, how does it feel to have him or her move toward you with the intention of asking personal questions? In most cultures, such a situation does not occur naturally. A Nigerian sex worker in a Spanish park once commented on outsiders asking questions:

I don’t understand what they’re doing, they don’t have anything to offer. The others that come are doctors, they give us medicine, exams. But these want to talk, and I don’t have any reason to talk to them.

It has long been recognised that people who are considered ‘victims’ or ‘deviants’ are likely to tell members of the mainstream what they believe they want to hear. Given that so much research with sex workers has focused on their personal motivations (wanting to know why they got into sex work, which is assumed to be bad), it’s not surprising that many make their present circumstances appear to be the fatal or desperate result of a past event. After all, if we were forced to be what we are now, we cannot be blamed for it. One Dominican woman told me:

All those social worker types feel sorry for me. They don’t want to hear that I prefer to do this work, so I tell them I have no choice. They want to hear that I was forced to do this, so that’s what I tell them. Anyway, I was, because my family was poor.

Ethics or self-protection? There are other reasons to tell sad stories. When behind the research project sex workers know that a certain health-care service may be at stake, or that only if they can present convincingly as victims will they get help, it is not surprising if they tell stories that serve their own interests. Or, in the case of research for health promotion, workers may not want to talk about their own failures to use condoms or their own getting drunk—who does, after all? Or, in the case of research on ‘trafficking’, sex workers may not want to admit they thought boyfriends really cared about them, when it turned out they were only using them, or admit they paid people to concoct false travel documents for them. It really doesn’t matter whether their answers will be treated ‘confidentially’, because they simply may not want to talk about such intimate matters. To put it another way, keeping secrets may help sex workers gain independence or control over projects to help them. Continue reading

Good Sex, Bad Sex: Sex Law, Crime and Ethics

I am in Budapest. Good Sex, Bad Sex: Sex Law, Crime and Ethics is the first conference I’ve been interested in attending in a long time. I swore off the whole conference genre for a while, but the description of this one caught my eye, so I got in touch with two very interesting minds and we proposed a panel. It’s a small event, 35 or so people, and no competing sessions, so you can actually relax and reflect on everything you hear. Our session is:

Monday 4th May 2009, 1600

Session 2: Breathing New Life into Old Fears: Cultural Studies of Prostitution, Pornography and Bad Sex

This panel will explore continuing impulses to criminalise and prohibit forms of ‘bad’ sexual practice. The three papers examine continuities and transformations in recent regulatory impulses to ‘protect’ the ‘innocent’ and the public from individual instances of bad sexual conduct. We ask whether fixed ethical frameworks, with concomitant laws, are appropriate in an age where diversity, autonomy and agency are prime values.

The Evil is in Paying: Sex with ‘Trafficked Women’
Laura Agustin

Prominent politicians and feminists have come to maintain that paying for sex with a ‘victim of trafficking’ is a heinous crime equivalent to violent rape. All migrant workers in the sex industry are considered subject to ‘serial rape’ and ‘sexual slavery’. The movement purposely conflates all prostitution with ‘trafficking’ and attacks those who disagree as pimps and anti-feminists. The justification is Gender Equality, a utopic vision that defines good sex as symmetrical, mutual, personally close, loving and equitable. Resulting laws criminalise the buying of sex on the grounds that introducing money creates a power relationship antithetical to the right kind of sex. This paper posits a different ethical vision in which money is not granted defining status in sexual acts.

Going to Extremes: Understanding New Online Pornographies
Feona Attwood

Online pornographies increasingly provide a focus for debates about permissible and impermissible sexual practices and about good and bad representations of sex. They have also become the focus of broader concerns with ‘extreme’ images of the body, for example in the horror subgenre which has been dubbed ‘torture porn’, in images of real violence and conflict (sometimes referred to as ‘warporn’ or ‘atrocity porn’), and in the wider set of ‘shock’ images which proliferate online. This paper considers the significance of contemporary concerns about extreme online pornographies in a cultural context where norms of sexuality and notions of obscenity are fiercely contested and where the circulation of sexual imagery is more prevalent than ever before.

Five Dominatrices and a Thrashing: the Classifications of Sadomasochism
Clarissa Smith

During 2008 two of the UK’s most august institutions resounded to discussion of activities involving pain and sexual pleasure: the House of Lords debated the rights of British citizens to possess images of ‘extreme’ sexual practices and the High Court was regaled with tales of supposed Nazi orgies starring Max Mosley (Formula 1 President and son of British wartime fascist Sir Oswald Mosley) and five women he had paid to beat him. The rights and wrongs of sadomasochism, consensual violence and the commodification and commercialisation of sexual desire were thoroughly aired across the media. This paper will consider the multiple meanings of sadomasochism and other ‘extreme’ sexual practices in public discourse and the continuing failures of the legislature to understand such practices as anything other than evidence of deviant or irrational impulses.