Recently the Ontario Supreme Court struck down a law that criminalized prostitution…well actual the operation of brothels.
The applicants (the people challenging the law) were arguing the several laws violated their charter rights. The respondent (the government wanting to uphold the law) argued that it could limit rights based on Section 1 of the charter which states:
“1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
The court, in testing to see if the limitation is valid used what is called the “Oakes test” (named after the court case that first stated this test). The first test holds that there must be a “pressing and substantial objective”, for example the desire to protect minorities from hate speech. IF the court agrees there is a suitable objective, the crown must then show proportionality.
Proportionality is actual three things; first the restriction in question must be related to achieving the objective. For example, preventing someone from driving because they shoplifter – there is no rational connection between the two. Second it must be as minimal as possible. For example, a rehabilitated (ie lawfully released from prison) child-sex offender could be prohibited from going into any public part, but that is a large limitation. A more minimal limitation would be prohibited from school areas; this achieved the laws objective while not being too onerous on the charter. Lastly, it must be proportional to the objective. For example, the objective of stopping Jaywalking (a minor offence) should have an equally minor limitation on rights; whereas stopping hate speech (a major offence) could support a greater limitation on rights.
Okay, now that you have a brief understanding of the Charter, let’s just say the court did not believe these laws deserved Sec. 1 protection and thus struck them down. The laws in question are:
1) Anyone who is keeps a common bawdy-house (a place that is kept for the purpose of prostitution or the practice of acts of indecency) is guilty of an indictable offence. This extends to the “inmates” (ie workers), landlords and anyone found “without lawful excuse”…who are liable to summery conviction.
2) Everyone who live wholly or in part of the avails of prostitution of another person
3) Every person who, in a public place or in any place open to public view…attempts to communicate for the purpose of engaging in prostitution or obtaining the sexual services of a prostitute…is punishable by a summary conviction.
These laws were, in a way, quite weird. I could understand if you we left with the impression prostitution itself was illegal in Canada…yet is it not! Prostitution itself is legal in Canada….they have just written the law so that you just can’t ACTUALLY practice it…well ‘above board’. Largely what is at the heart of this matter is brothels (bawdy-house )…should they be legal and above board or remain illegal and in the hands of criminals? Sorry, that loaded ways to state that….Lets rephrase it – should the law accept the legal existence of brothels?
Let’s take our sceptical minds and examine what the evidence presented to the courts.
In evidence, a number of former and current ‘workers’ stated that it was their experience that working ‘indoors’ was significantly safer that walking the streets. Most stated that they entered into the line of work without coercion…beyond the capitalist system…ie they needed the money. The State offered counter evidence but it focused mostly on ‘abusive pimps’ who did their violence both indoors and on the street.
This is what a sceptic would call anecdotal evidence…so not much weight either way…
Law enforcement witnesses stated that most of the harm centered around drug/alcohol abuse and organized crime. They saw the ‘workers’ as victims, both of the ‘pimps’ but also the johns; noting most prostitutes are poor while the johns come from “all walks of life”. A re-occurring theme in the respondent’s (and most critiques of protection) submissions is the view sex trade workers are victims…of others, circumstance and substance addiction.
Law enforcement witnesses also expressed frustration at attempting to enforce these laws. In 2008 2377 charges were made for ‘brothels’ but only 131 convictions.
Under cross-examination, they all stated that streets were worse for violence then indoors. That indoor location could be set up to reduce the chances and level of violence.
Again, largely anecdotal, but it did collaborate the ‘claim’ that indoor work are saver than the street walking.
I ignored the convictions data, regardless whether a law is easily enforceable does not make it a good law. It’s hard to fly, does that make flight bad?
The Fraser Report in 1985 held that prostitutes should be allowed to conduct their business, in private, however they choose…including the disposition of their ‘fees for service’. They also stated that although there is a strong perception of a connection between prostitution and drug abuse, the evidence shows that actually only small part of the business and not typical. It also reiterated the fact street walking is far more dangerous.
They also reported, after extensive cross-country consultations with the public and no consensus on the issue.
The Fraser Report did recommend the removal of laws constraining ‘non-nuisance’ street solicitation; that laws against ‘living on the avail of prostitution’ be reworked so as to criminal abusive behaviour of pimps and not the actual financial relationship and to allow prostitutes to legally work ‘from home’.
In 1995 the Calgary/Winnipeg study reported that due to the criminalization of ‘communicating for the purposed of prostitution’, workers were forces to work in more remote and isolated area making them more vulnerable to violence. The laws do not suppress prostitution but simply drive it underground.
So, the research into the issue seems to point to the striking down of the laws in question…but what about ‘experimental evidence’. This can be found by looking at the effects in other countries.
Legalization in Holland, although debated, according to reports commissioned by the Dutch government, there has been moderate success in improving the working conditions of prostitutes; including, notably, a significant reduction of STDs.
In 2003 New Zealand legalized and regulated brothels….the result being significant reduction of violence, coercion and theft in the ‘in-house’ workers…street workers still suffered though.
Germany passed its law in 2002 with the explicit purpose of removing prostitution as a “breeding ground for crime”
Nevada has several regulations to help protect women such as negotiating prices upfront with management listening in to ensure the proper behaviour of the client, the fee is paid in advance with the worker giving a opportunity to express reservations away from the client, each room has a panic button, and there is not ‘quick’ exit for johns and clients are not allowed to be ‘anonymous’ discouraging them doing harm and ensuring if they do they will be apprehended and prosecuted.
So, the rational trend seems to be getting sex trade works off the street reduces their risks…including violence, theft and coercion.
Bucking the trend, Sweden criminalized the buying of sex and pimping. “Act on the violence against Women” 1999. To understand why Sweden has gone against the grain we only need look at the acts name. It is not an ‘anti-prostitution’ act but an act intended to ‘defend women’… It seems to ignore the fact that a significant number of sex-trade workers are man.
Straw man – refuted a position by substituting a superficially similar yet unequivalent proposition and refuting it, without ever having actually refuted the original position.
There is this constant assertion that sex trade workers are ALWAYS victims (even when they are voluntary participants), that they need someone (usually the male minister of state) to protect them from other bad men…the case at hand was not prostitution itself but brothels. This is a straw man because it ignores the argument ‘are prostitutes safer in legal or illegal brothels’ and instead agues prostitution is innately wrong therefore prostitutes are safer in illegal brothels…I am stunned at the illogical.
“I think that the criminalization of everything around prostitution, except prostitution itself, means that sex workers are not positioned … to seek assistance should their lives be at risk.” Gender studies prof Darlene Jushka, U of R
This argument strikes me as incredibly sexist and paternalistic. I know it is not a very skeptic critique but it’s not a very rational argument. With regards to the laws at hand, it is also irrelevant. IF you accept that prostitution is innately harmful, then you aim should not be to make brothels illegal but make prostitution itself illegal.
So that is how the law worked and the evidence the judges used to arrive at a decision that seems consistent with the skeptic mind. You can check out their full decision here.