Prostitution should be legal, GLOBE Editorial

[Fred Zed]

GLOBE EDITORIAL
http://www.theglobeandmail.com/glob...ution-should-it-be-legal-yes/article17173130/
Prostitution: Should it be legal? Yes
The Globe and Mail
Published Friday, Feb. 28 2014, 7:00 PM EST
Last updated Friday, Feb. 28 2014, 7:00 PM EST

So now what? A few days before Christmas, the Supreme Court of Canada handed the federal government a present that was about as welcome as a lump of coal: It struck down Canada’s prostitution laws. Ottawa was given one year to come up with new rules. The clock is now loudly ticking: There are fewer than 10 months remaining before the deadline.

Justice Minister Peter MacKay, who last week opened a public consultation period on the subject, has said that his Conservative government will deliver a new legal regime well before the end of the year. Given that his government has a majority, getting legislation passed won’t be difficult. But coming up with laws that actually work, and which can satisfy both voters and the judges of the Supreme Court? That’s going to be a challenge.

The choice for Canadians is between two ways of dealing with the oldest profession: the Nordic model vs. the Dutch model. The government appears to be favouring a version of the former, but the long-standing practice of Canadian law, and the approach the Supreme Court seemed to be leaning toward, are closer to the latter.

Under the Nordic approach, used in Sweden and several other European countries, prostitution is a crime – but the police target the buyers of sex, rather than the sellers. Under the Dutch model, the sale of sex is legal, and government regulates where and how it is sold. The Nordic model aims to eliminate prostitution, or at least greatly reduce its occurrence. The Dutch model legalizes it, with the goal of reducing harms.

“It is not a crime in Canada to sell sex for money.” That’s the first line of the Supreme Court judgment striking down the prostitution laws. Various activities surrounding sex work were against the law – the three pillars of the old legal regime made it illegal to run a brothel or to work in one, to be the manager or employee of a prostitute, or to solicit in a public place. But the sale of sex has long been entirely legal in Canada.

The Supreme Court rejected those three pillars of the old rules, while at the same time giving Ottawa the green light to come up with new rules – but any new laws must take into account the dangers of sex work for sex workers. The Court found that, because prostitution is legal, Ottawa doesn’t have the constitutional right to regulate it in ways that make it more dangerous. “Parliament has the power to regulate against nuisances,” said a unanimous court, “but not at the cost of the health, safety and lives of prostitutes.”

Prostitutes were breaking the law if they kept a regular place of business, hired a receptionist or security guard, or vetted clients in a public place. And that, said the court, was making their lives a lot more dangerous.

So Ottawa can regulate prostitution; it just can’t regulate in ways that increase its hazards – because it’s a legal business. Which invites a question: What if the federal government made it illegal?

That’s the Nordic model, and it may be where the Conservative government is headed. The Nordic approach tries to shut the business down, by going after the customers rather than the sellers. Selling sex in the Nordic model is legal – but buying it is not. Proponents say that’s as it should be, because the exchange of sex for money, in their view, is inherently degrading, and many sex workers are selling because they have no other choice, for reasons of addiction, poverty or worse.

The approach is increasingly popular in Europe, where just this week the European Parliament passed a resolution recommending that all EU countries consider adopting the Nordic model. If the Conservative government were to pass a law along these lines, it would find itself with interesting bedfellows. The Nordic model is a darling of the left.

Then again, the prostitution debate makes for surprising partners: Those opposed to the Nordic approach are a mix of feminists, liberals and libertarians, some of whom believe that selling sex shouldn’t be stigmatized, and others who simply think that sex work is the oldest profession for a reason, namely because demand exists and always will. That’s the Dutch model: Make it legal and regulate it, like alcohol or strip clubs.

The Supreme Court didn’t give the government an instruction manual on which types of regulations might pass constitutional muster, and which will not. All the court said was that if sex work is regulated, it has to be done in such a way as to make it less dangerous for sex workers. That suggests something like the Dutch approach.

The idea of keeping prostitution legal, but regulating it differently than under current laws, has a compelling logic to it. But coming up with new rules won’t be easy.

Should Canadian cities have red-light districts, like Amsterdam? What if a city didn’t want one? Would prostitutes have to be licensed? Would they be allowed to run their business out of their homes or apartments? Or would they only be allowed to operate in areas zoned for this activity? And should any of this even involve the federal government and criminal law, or is this a question for provinces and municipalities to deal with through zoning, licensing and health laws? None of this will be simple or cheap; it might not even be effective. It will put new burdens on police, municipalities and public health officials. It is fraught with challenges.

The old rules were imperfect, but they did function. Striking them down was easy for the Supreme Court; replacing them, a job it left to politicians, will not be. What comes next could be a better system, though it is guaranteed to be messy and far from perfect. But to govern is to choose. And on balance, we believe that legalization and regulation, not criminalization, are the way to go.

 

[yazoo]

Its interesting that they gave such a good summary of the positions, and ended up on the 'right' side of the issue, but gave absolutely no reasoning about how they reached their conclusion.

 

[HankQuinlan]

Its interesting that they gave such a good summary of the positions, and ended up on the 'right' side of the issue, but gave absolutely no reasoning about how they reached their conclusion.

Yes they did. The entire logic presented is that the Nordic model does not make it less dangerous for sex workers, but that legalization does. That is all they have, and it is more than enough for logic.

Unfortunately, logic is not a quality the CPC possesses, but ideology is. This is an opportunity for the Conservatives to show that they are "progressive" and concerned about women (the poor, addicted victims, as they all are if engaged in this work). They will do it, and they will have "evidence" that the majority of Canadians support it. The basic framework is already the official policy of the Party, as adopted at their convention last year. Whether the legislation they produce will eventually pass the muster of the Supreme Court is another question, and will take years of appeals to resolve. If they include some kind of token assistance to transition out of sex work, it will be harder to appeal against it, so that will be included in the legislation.

 

[HankQuinlan]

I don't know Hank,

Anthony Furey has an article in today's hard copy of the Edmonton Sun (that archly conservative rag) that strongly argures that the feds should just butt right out, enforce existing laws against trafficking, coercion, etc. as the logical path for conservatives that believe in small government (versus a nanny state) and personal liberty. The article isn't on their web site yet but perhaps someone will post it verbatim here when it does.

And that makes perfect sense from a traditionally conservative, libertarian-leaning point-of-view. That, however, does not remotely apply to the current CPC. They do believe in a nanny state, and that we all have to be protected from our baser impulses; this is the strategy they use to maintain their base of Christian conservative supporters. They do not practice small government; they have the largest cabinet in Canadian history. It is all about supporting industry, and allocating vast sums to do so (usually under the disguise of "reducing corporate taxes" and the unsubstantiated claim that this is how to increase jobs and stimulate the economy). To them, "nanny state" philosophies only apply when it concerns strategies that provide assistance to the poor. The Christian conservative base is essential to keeping them in power, so that they can carry on with their assistance to the rich -- to keep their funding, and to maintain their highly paid corporate board appointments when they leave office.

If they believed in small government and personal liberties, it would also apply to drug laws -- instead, they have increased penalties. Registered medical marijuana users no longer have the right to grow their own.

They are NOT libertarians; they only claim to be concerned about personal liberties when they coincide with the beliefs of their voting base -- the gun registry, the census, etc. Harper has enough practical sense not to apply the beliefs of their base to those items that would lose them votes -- abortion or gay marriage, for examples. Prostitution laws have not reached that level of acceptance in the Canadian public. The only hope is that it does, but I don't see logical, harm-reduction strategies reaching that level of acceptance that it would lose them votes -- yet.

 

[HankQuinlan]

I don't know Hank,

Anthony Furey has an article in today's hard copy of the Edmonton Sun (that archly conservative rag) that strongly argures that te feds should just but right out, enforce existing laws against trafficking, coercion, etc. as the logical path for conservatives that believe in small government (versus a nanny state) and personal liberty. The article isn't on their web site yet but perhaps someone will post it verbatim here when it does.

http://www.torontosun.com/2014/03/01/the-future-of-prostitution-laws

Here it is. As you suggested, it is a logical libertarian argument. And it is irrelevant to the federal Conservatives.

On Saturday Anthony Furey is speaking at the Manning Networking Conference in Ottawa on the topic “Is Canada ready for new prostitution laws – or none at all?” Below is a version of his opening statement:

When I first became politically aware, I leaned quite left. Many can relate to this, no doubt. You see, I wanted good things for people. Good outcomes and results. Because I cared.

But it didn’t take long for me to figure out that people often disagree on what those good things are. And that there are some people out there who, in spite of this disagreement, still want to force their version of good things on others. Even if the others object.

I then realized that what I wanted for people wasn’t good results after all. But for everyone to have the freedom to pursue whatever their version of good results was. A key distinction often overlooked today.

There seemed to be two perspectives of government: those who viewed it as a mechanism to force people to live the way they thought they should live, and those who thought the point was to maximize liberties.

I realized I believed the latter. And if you believe that we created government to serve us and not the other way around, I hope you agree.

But what about people whose idea of exercising their liberty is something that we personally don’t like? Something that disgusts us. That we’d be horrified to learn if our friends were doing it. Does that still fall under the case for liberty?

Well there’s a simple litmus test that will solve this: If the action is done voluntarily and it’s not otherwise infringing on someone else’s liberty, then it must be allowed. Anything else is the state micromanaging personal choice.

This is where prostitution comes in. Not only does this argument lead one to oppose any form of law that limits the right of consenting individuals to otherwise lawfully engage in sex commerce, but implies that this is the natural position for advocates of small government to hold.

Last December the Supreme Court struck down Canada’s prostitution laws on the grounds that they endangered prostitutes. The feds have time to think this over and come up with revised laws.

Joy Smith, Member of Parliament for Kildonan - St. Paul, argues in her paper "The Tipping Point" that the correct response to the ruling is to move towards what’s called the Nordic model. Many people share this view. Based on Swedish legislation from 1999, this would shift all criminality from the seller to the buyer. It targets johns instead of prostitutes.

But if sex commerce is consensual, it makes no sense to target one side of the transaction over another. And besides, what business is it of the government?

Ah, my opponents will cry, but what about human trafficking? What about child prostitution? What about sex slavery? What about abuse?

Well, what about them? They’re illegal and will remain so. There is no consent going on in the above and they are all liberty violations.

It’s bad logic to argue that because prostitution could lead to such problems, it should be outlawed entirely. If the above infringements are still going on, then it’s clearly enforcement that needs to be looked at, not the law itself.

Drunk driving is not an argument to ban either driving or drinking. Public shootings are no argument to ban gun ownership. It simply casts the net too wide. It’s lazy from both the legislative and policing perspectives.

There are some however who would argue there’s something wrong with prostitution in and of itself. To return to Smith, she writes that any new laws “should recognize that the violence and exploitation inherent in prostitution directly violates an individual’s right to life, liberty and security of person.”

So there’s violence inherent in prostitution? Even when there actually is no violence? Even when there’s consent?

Smith adds that “those who claim to be in prostitution by choice are often using prostitution as a means of survival or to maintain an addiction.”

This is clearly the case for some. But I don’t want to live in a society where the government says even though someone claims to do something by choice, well, they’re really not. That’s nanny statism.

So the main challenge in legalizing prostitution is to not mistake it as a signal that we’ve dropped the ball on going after human trafficking, etc. If anything, after separating otherwise law-abiding prostitution from the real crimes, we should double down on stamping out these abuses.

In his book Paying For It , graphic novelist Chester Brown recollects his experiences of, well, paying for it. In it he grapples with all of the above quandaries and many more (it’s a fairly pornographic book, consider yourself warned). I don’t see why the likes of Brown – polite, respectful, paying his tab in full – should be treated like criminals just because another guy on the other side of town is engaging in human trafficking.

By all means, use moral arguments against prostitution to dissuade people from joining the profession. But it's still their choice. To let moralizing turn into legislating just infringes on liberty.