Canada's Prostitution Laws: Where do we go from here?
Originally posted at http://gender-focus.com
Ever since the Ontario Superior Court struck down laws relating prostitution earlier this month and the federal government announced their plan to appeal, it threw open the debate about if and how we should regulate sex work in Canada. Now the BC Supreme Court has ruled former sex workers in BC also have a right to challenge the laws. Like the general public, women's and feminist organizations are divided on the issue. The Sex Professionals Association of Canada and Vancouver's WISH Drop-In Centre hailed the decision as a step towards recognition of sex work as a legitimate profession. On the other hand, the Canadian Association of Sexual Assault Centres (CASAC) put out a release expressing their outrage at the decision for legitimating pimps, organized crime, and trafficking.
In looking at the Ontario case we have to give some weight to the constraints Justice Himel was under. Himel had one decision: are the laws justified to protect the public interest or are they violating sex workers’ right to security of person? She didn't have the ability to make a better policy regime for sex workers. That responsibility belongs to the federal government, and it's a responsibility they've been shirking for years. In 2006 a parliamentary committee reported that the status quo was untenable and made it "virtually impossible to engage in prostitution without committing a crime" though prostitution itself is legal. However, no action was taken by the government.
So Justice Himel made the right choice. She believed the 3 laws, particularly the law prohibiting communicating in a public place for the purposes of prostitution, made sex work a lot more dangerous than it has to be. It's legal to sell sex and therefore sex workers have the right to the same security of person as any other Canadians. The judge made the right legal and ethical decision.
But it's a mistake to think that this ruling deals with all the issues sex workers face or that it will suddenly solve problems of violence, exploitation, and abuse. Even the lawyer for the sex workers who filed the suit, Alan Young, admits the ruling is no panacea:
The case does not solve the problems related to prostitution, he said. "That's for your government to take care. Courts just clean up bad laws."
"So what's happened is that there's still going to be many people on the streets and many survival sex workers who are motivated by drugs and sometimes exploited by very bad men. That's not going to change," Young added. "Here's what changed. Women who have the ability, the wherewithal and the resources and the good judgment to know that moving indoors will protect them now have that legal option. They do not have to weigh their safety versus compliance with the law."
Vancouver-East MP Libby Davies told CTV news: "We need to distinguish between what is consenting between two adults and what is exploitative, coercive and violent and focus the law-enforcement on those aspects." She's right, but the distinguishing is where it gets tricky. While there clearly are people who choose to be sex workers (for more on this, check out Jeffrey and MacDonald's research with Maritimes sex workers), there are clearly those who are trafficked into prostitution or forced into it by economic circumstances, sometimes compounded by drug addiction, mental health issues, and/or racism. Poverty can be a form of coercion, and while that's no reason for maintaining the harmful patchwork of anti-prostitution laws that we've had, it makes me less willing to see this legal fix as more than just one piece of the puzzle.
So where do we go from here? It looks like the court decision is going to finally result in some policy-making at the federal level. Unfortunately, with the Conservatives in power it looks like the government will be fighting this ruling tooth and nail in the name of prostitutes' "safety", essentially arguing that some form of criminalization is the best approach, while all the evidence shows that it doesn't act as a deterrent and only serves to put prostitutes at unnecessary risk. Historian George Ryley Scott concludes his research on prostitution around the world by stating that “the most that can be expected from punitive and repressive measures...is the driving of prostitution into underground channels” (1996, p. 181). As Justice Himel pointed out, one only needs to look at missing and murdered women in the Downtown Eastside to realize that.
So we're left with legalizing and regulating prostitution, as in the Netherlands or Nevada, where brothels are legalized. It sounds progressive on the surface - totally legitimating the profession - but some fear that it can actually give more power to pimps and reports show it doesn't stop the street trade and doesn't curb violence against sex workers. Melissa Farley's research found that most women in legal brothels in Nevada had pimps outside, and that rights are severely restricted, with women often forced to live in the brothels and work 12- to 14-hour shifts. In the Netherlands, the average age of death of prostitutes is 34.
More widely endorsed is decriminalization, which is supported by the Canadian Medical Association, the WHO, and UNAIDS when exploitation is not involved. It's believed that decriminalization will reduce stigma and enable sex workers to organize for security and labour rights. However, as we've seen in the response to this debate, some women's groups believe decriminalization gives tacit approval to the trafficking and exploitation of sex workers.
A slight variation on full decriminalization is the Swedish solution to make it criminal to buy but not to sell sex, an approach championed by Benjamin Perrin in the Globe and Mail and organizations like Vancouver Rape Relief. It's a somewhat conservative approach that assumes all sex workers are victimized, but it's probably more politically palatable than total decriminalization and statistics out of Sweden seem promising. That said, I do wonder whether it would just serve to continue to drive prostitution into unsafe areas.
I'm glad Himel's decision has forced us into having this needed national discussion. It's a complicated issue and while I definitely don't agree with criminalizing sex work where there is consent and choice, and while I'm most supportive of decriminalization, I recognize underlying issues of poverty, racism, and sexism will continue to make any material changes difficult, even if Justice Himel's decision results in national legal reform.
What I'd like to see is for policy-makers to work with both feminist and prostitutes’ rights groups to create broad-based policy initiatives responsive to the needs and views of sex workers. While moves to decriminalize prostitution should be part of these initiatives, recognizing sex worker diversity means also recognizing the needs for services and programs to help those women wishing to leave the sex trade. Finally, dealing with the harms associated with prostitution will involve a concurrent movement towards gender equality, in order to address some of the conditions which push women into prostitution and victimize them in this work.