Hot! Supreme Court ruling not about legalizing prostitution but making life safer for prostitutes

NationalPost.com – Full Comment
December 20, 2013.   Andrew Coyne

The striking thing about the Supreme Court’s ruling in the case of Canada (Attorney General) v. Bedford is not how radical it is, but how reasonable. Which is perhaps to say how unreasonable the laws it has struck down were and are. How then could they have remained on the books all these years? Why did it take the courts, rather than the legislature, to right this wrong?

That is not an example of judicial activism, but of legislative inaction. The court has not struck down the law against prostitution, because there is no such law. It has merely struck down a raft of surrounding laws, framed in such a way as, not to prohibit prostitution, but to make it more dangerous — a danger that is not speculative, but amply evidenced in the murders and beatings of prostitutes that go on every day.

The law against keeping a “common bawdy house,” i.e. working at home, obliges prostitutes to work on the street or in other locations (“out-calls”) where they are at greater risk. The law against “communicating for the purposes” of prostitution makes it impossible, in the fleeting exchanges it requires, to assess or mitigate the threat posed by a given customer. The law against “living off the avails” of prostitution makes it illegal to hire a bodyguard, a driver or a doorman.

All three might have been drafted with legitimate purposes in mind: to prevent the conduct of prostitution from posing a nuisance to others in the neighbourhood, to prevent the exploitation of prostitutes by pimps. But they vastly overreached, as the court found, what was necessary to achieve those ends. It was not necessary, to strike at pimps, to forbid a prostitute from employing anyone at all. It was not necessary, to protect others from nuisance, to forbid prostitutes from working in any safe locations anywhere, or having done so, to forbid any efforts to protect themselves, such as screening clients or negotiating conditions.

That the laws overreached would be enough on its own to make them constitutionally dubious. But when the effect of such overreach is not merely to lessen people’s liberty, but to threaten people’s lives, then there is no excuse for their continuance, nor any insult to democracy in overturning them. Parliament decreed, in Sect. 7 of the Charter of Rights, that any law that threatened the “life, liberty or security of the person” was of no force or effect. How, then, could the court fail to strike down a law that threatens all three?

It is not as if we have not been here before. As with Morgentaler, as with the Chaoullimedicare case in 2005, the court has not presumed to judge the purposes the legislature had in mind. Whether the state may restrict abortion, or establish a public health-care monopoly, or regulate prostitution are all subjects on which the court has expressly declined to intervene. All it has insisted in each case is that, in the pursuit of these objectives, the state may not actually kill people, or put their safety at risk. 

The government’s defence was that prostitutes make a choice to enter the trade knowing the risks it entails. The weak reply to this is that many prostitutes are in no position to make such a choice, whether because they are addicted to drugs or enslaved to their pimp. That’s true of some, but untrue of others. The stronger reply is that the risks are the result of, or greatly heightened by, state action; the choice they make is not one they should have to face. Coal mining is a risky business, which people are free to enter or not. That doesn’t mean the state is entitled to forbid mines from operating safely.

So now the laws are flat, or soon will be: the court left Parliament a year to redraft them. How should it respond? One option, given the contradiction at the heart of the court’s ruling — that prostitution is a legal activity the government makes illegal to carry out in safety — is to make prostitution itself illegal. Talk about overreach: Besides the question of enforceability, this would only make worse the problems the court identifies, and would very likely be struck down.

A better, though still overbroad option is to criminalize, not the sale of sex, but the purchase: the so-called Nordic option, after the policy in Sweden and other countries. This would make sense where a prostitute is clearly not able to choose freely: the exchange in that case is not one between consenting adults, but rank exploitation. (The laws on under-age prostitution or human trafficking remain on the books for this reason.)

But what of those cases where the prostitute does choose freely, or appears to? And how to tell one from the other? Rather than simply “prosecute the johns,” a more workable approach might be a system of licensing for prostitutes. As a condition of license, they would be required to certify their age, submit to tests for drugs (and sexually transmitted diseases), and work in licensed premises. Prosecution might then be reserved for johns who patronized unlicensed prostitutes.

If that makes you uneasy, it is the approach we take now to strip clubs, which remain no less sleazy and disreputable for it. Regulating a practice does not imply approval, or even indifference. It suggests only that there are other and better means of addressing social ills of this kind than the criminal law — especially where there is evidence that criminalization is itself a big part of the problem, as we have lately been coming to realize with respect to drugs.

As with drugs, it would still be open to society to dissuade people from getting into prostitution, an effort that might have more chance of success once the threat of prosecution was lifted. It would still be open to cities to regulate how and where it took place. We just wouldn’t be using the law to condemn people to death, for practising a trade of which we disapprove.

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2 Comments

  1. Why not treat crimes against sex workers the same way that we treat crimes of rape, domestic violence, statutory rape and other crimes? Those who believe that we ought impose the so called “Swedish Model” on sex workers, and criminalize the non violent, non abusive clients, employers and associates with whom we work, would never consider criminalizing marriage to stop domestic violence, a crime which is a huge problem everywhere.

    The World Health Organization claims that 29% (or nearly one out of three) of all women over 15 are victims of violence at the hands of their husbands or boyfriends. Would it make sense to criminalize all interpersonal relationships regardless of whether or not violence exists within any individual relationship? Who would be helped by such a ridiculous policy? Here in the US, the FBI Bureau of Justice Statistics Criminal Victimization 2012 report states that in 2012 there were 411,080 incidents of ‘serious’ intimate partner/ domestic violence – out of a total of 1,259,390 domestic violence cases overall. This is an increase of 42,040 from 2011. No statistics available on how many abusers were either arrested or punished.

    And as for rape, that same government document stated that there were 346,830 reported violent rapes and sexual assaults- yet there were only a reported 15,591 arrests of alleged rapists (table #69 arrests by state, 2012)- or 4.5%. The number of reported victims was an increase from 2011 of over 102,000 victims. These are cases where the victim filed a criminal complaint against their alleged rapists… asked for help and do not get it because the police in the US were too busy arresting consenting adults engaging in consenting adult commercial sex. They arrested 48,148 persons for prostitution, of which 657 were minors- primarily 16 and 17 year olds.

    Over the past 22 years, from 1991 to 2012, there were, according to those annual Criminal Victimization reports, 5,666,556 reported violent rapes and sexual assaults, but only 617,336 (10.9%) persons were held accountable for raping those victims. That left 5,049,220 victims without justice. And yet, the so called “Swedish Model” would usurp the scarce and valuable police resources to pursue, apprehend, prosecute the non violent, non abusive clients of prostitutes who did not file a criminal complaint against their client OR employer…

    You asked “But what of those cases where the prostitute does choose freely, or appears to? And how to tell one from the other?” If a law enforcement officer cannot tell one from the other when it comes to rape or coerced sexual activity of any sort, we are in serious trouble. Obviously training them to be able to tell the difference is a much better option than to allow them to simply arrest clients against whom there is no criminal complaint, and allowing the courts to sort it out. As it now stands, law enforcement officers have a difficult time forcing sex workers to realize they are victims, as Denver vice Lieutenant Aaron Sanchez explained the ‘problem': “Prostitutes are not friendly. It’s not like you’re talking to a child-abuse victim or a fifteen-year-old sex assault victim who wants to cry out and wants to explain what happened or is just scared. These girls just flat out say, ‘Nope, that’s not what’s happening.’ “WE HAVE TO HELP THEM REALIZE THEY ARE VICTIMS….”(His department received a $300,000 grant to find and convince those victims of their victimhood…) I wonder if any victims of violent rape or serious domestic violence need help realizing they are victims?

    In cases of rape and domestic violence, the police must rely on the victim to file a criminal complaint against the perpetrator- the police do not go out and arrest a ‘suspected victim’ of rape or domestic violence and force them to testify against someone who may in fact not have harmed them in any way. Shouldn’t that be the way we treat victims of abusive clients or employers of sex workers- give sex workers the opportunity to turn in abusive clients, boyfriends, husbands, employers or any other individuals who harm them? Or are the prostitution abolitionists of whatever flavor claiming that victims of violent rape, sexual assault or domestic violence are not as important as us ‘poor victims of sexual exploitation’ at the hands of clients who pay us for our time and erotic services? Or that it isn’t as important to pursue/ arrest/ prosecute and punish the alleged rapists and violent husbands whose victims HAVE asked for help? Is that why over 5 million victims in the US have gone without justice for so very long?

  2. One more comment- I do not understand why anyone would want to try to dissuade adults from providing pleasure to others for a fee. Sex is good for us- it prolongs life and reduces stress. There are MANY MANY people in the world who do not have access to an intimate relationship with anyone. That includes men and women who are disabled, divorced, widowed, socially inept- and those whose lifestyle does not permit a permanent relationship at that point in their lives. Must those people do without the warmth and comfort of human contact, simply because some moral busybody finds it offensive that people are having sexual relationships outside of marriage or the so called ‘normal’ channels? I would think it more productive to try to dissuade people from going into law enforcement, which I found horribly corrupt and abusive during the ten years I spent working for the LAPD prior to my career step UP. It would also be more productive to dissuade people from getting into abusive marital relationships which may end up in their death or at least forced to live in a shelter with the children who are also victims of an abusive parent.

    But marriage is touted as a wonderful institution by religious conservatives- and indeed for those of us who are fortunate to find a partner who is loving and non abusive- it can be that… I have been with my husband for nearly 38 years and never has he once lifted a hand in anger or abused me in any way. Unfortunately for so many other women- AND men- marriage turns out to be the biggest disaster of their lives.

    Spend more time dissuading those potential victims of domestic violence, dissuade women from joining the military where they are quite likely to become victims of rape, and don’t worry about us sex workers. When and if we get tired of earning substantially more than we could earn scrubbing floors and cleaning toilets, or by waiting tables- or the myriad other menial labor jobs paying minimum wage or less, we are smart enough to move on. Can’t say the same for those who remain in thankless jobs where they have no options and were economically coerced into working for some boss who thinks he or she has the right to threaten to fire someone if they don’t ‘put out.’

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