Stop going around in circles on prostitution
If Canada is to have a debate about prostitution laws, let’s hope it does not become as convoluted as the laws themselves.
For the moment, a debate is occurring, thanks largely to the clear ruling last September by Ontario Superior Court Justice Susan Himel. Unfortunately, the debate often seems disconnected from the ruling itself, as much of what Himel wrote is frequently ignored.
At the heart of it is Cana- da’s ineffective, confusing and hypocritical status quo. Prostitution is legal, but through an array of Criminal Code provisions, it is essentially criminalized. The status quo makes little sense, and makes a risky profession more dangerous.
Himel struck down the laws prohibiting living on the avails of prostitution, keeping a common bawdy house and communicating for the purposes of prostitution. Based on expert testimony, she concluded there are ways prostitutes can reduce risk, yet the laws make such methods illegal.
The “living off the avails” law prohibits a prostitute from hiring a bodyguard. The “bawdy house” provision makes it more difficult to escape the dangers of the streets. The “communica- tion” provision prohibits prostitutes from properly screening a potential client.
The Ontario Court of Appeal heard arguments last week stemming from the joint federal-provincial appeal. Yet, Himel’s findings seem distant from the conversation.
A federal lawyer argued the state has no obligation to protect prostitutes if they choose a dangerous profession. That avoids the question of why the government’s own laws should increase that danger.
A lawyer for the applicants compared the government’s position to allowing smoking but criminalizing filters and nicotine patches. Imagine if the government wished to discourage overconsumption of alcohol by making alcoholism illegal. Would that discourage heavy drinking or merely discourage heavy drinkers from seeking help?
Those who can’t bring themselves to defend the status quo attempt to argue that decriminalization makes things worse. This ignores Himel’s findings about other countries’ experiences.
Dutch decriminalization has “improved working conditions and safety.” The vast majority of violence is directed at prostitutes working illegally.
In New Zealand, a report found violence and theft are infrequent, except among street prostitutes. The report also noted “no situations involving trafficking in the sex industry had been identified.”
A study by University of Nevada researchers found legal brothels in that state “generally offer a safer working environment than their illegal counterparts.”
Canada is out of step, as Himel notes that “legislatures around the world are turning their minds to the protection of prostitutes.”
To some critics, it all comes down to the fact that prostitution is “immoral.”
Three Christian intervener groups argued last week that for that reason, these Criminal Code provisions are necessary. When pressed by a judge about the increased dangers, their lawyer dismissed that as a “sad side-effect.”
Perceived immorality is a flimsy basis for illegality. It once served as the basis for all sorts of egregious laws, such as those that criminalized divorce, adultery and homosexuality.
Then, there’s the “daughters” test applied by the moral crusaders: would you be OK with your daughter being a prostitute?
The question easily applies to such professions as porn star, nude model and exotic dancer, and the spectre of prohibition is rarely raised. Porn stars legally receive money in exchange for sex. Where’s the moral outrage? Morality has little to do with the issues Himel raised. We need less focus on irrelevant debates and more on fixing Canada’s broken and absurd status quo.