by Barbara Kay.  January 30, 2014.

It is no crime in Canada for adults to sell sexual services to other adults. Nobody disputes that.

However, what has long been problematic are prostitution’s several core related criminal offences. In 2010, an Ontario Superior Court judge ordered three challenged Criminal Code provisions — against keeping a bawdy-house, against living off the avails of prostitution and against publicly communicating for the purpose of prostitution — struck down as an infringement of section 7 of the Charter (“life, liberty and the security of the person and the right not to be deprived thereof”).

The Court of Appeal upheld the first two decisions and denied the third. In last month’s Canada vs. Bedford, the Supreme Court of Canada declared all three “inconsistent with the Canadian Charter of Rights and Freedoms.” The Supreme Court has given the federal government a year to come up with new prostitution laws to replace them, or assent to a legal void that will take effect on Dec. 19, 2014.

In the past, prostitution was almost universally perceived as an intrinsic evil, like disease and poverty: impossible to eradicate completely, but with eradication as society’s moral aspiration. Now our society is divided between traditionalists and moral relativists who regard prostitution as, in the Court of Appeal’s affirmation, a “lawful commercial activity,” presumably like grocery stores, even though violence, drugs and sexual abuse of minors do not go hand in hand with the sale of avocados, while they are invariable components of the sex trade, legal or otherwise.

Libertarians envisage legalized solicitation and regulated brothels as a panacea that will keep prostitutes safe and healthy. I can think of no better way to disabuse them of this fantasy than to direct their attention to a just-released report by the Macdonald-Laurier Institute, “Oldest Profession or Oldest Oppression? Addressing Prostitution after the Supreme Court of Canada Decision in Canada v. Bedford.” The report’s author is UBC academic Benjamin Perrin, a leading legal expert on prostitution and the sex industry, and author of Invisible Chains: Canada’s Underground World of Human Trafficking(2011).

Traditionalists will be happy with this paper. The moral relativists will have to hold their noses through Perrin’s unequivocal recommendation that “Canada’s objective should be to abolish prostitution,” because “its harms are inherent and cannot be regulated away.” But even they can’t fail to be impressed by the evidence for his position that Perrin brings to the table.

In his paper Perrin examines legal prostitution experiments in the Netherlands, New Zealand, Germany, Australia and America (Nevada). All have decriminalized and legalized prostitution to some extent. None of these jurisdictions has achieved anything like a panacea.

Since 2000, the Netherlands has licenced and regulated brothels. The approach has been “moderately successful in improving working conditions and safety,” but illegal prostitution still flourishes, with two-thirds of the approximately 20,000 prostitutes coming from Eastern Europe and developing countries.

Since 2003, prostitution in New Zealand has been decriminalized, with brothels licenced, yet more violence is reported to police than before. Despite decriminalization, prostitutes continue to suffer “incidents of violence, threats, forcible confinement, theft and refusal to pay for services.”

In 2002 Germany decriminalized brothels but since then has “found no measurable improvements detectable in achieving social protection for prostitutes, improving working conditions, encouraging prostitutes to exit the industry, or reducing crime.” (From a news source not cited by Perrin: Germany’s new leniency encouraged prostitutes from abroad. Germany now harbours 400,000 prostitutes, with many “virtual slaves to criminal gangs,” 10 times as many as France, which penalizes clients.)

Similar results obtain in the other jurisdictions Perrin studied.

What does reduce prostitution and help prostitutes to exit the trade — another sine qua non Perrin urges as part of any new law — is what is commonly known as the “Nordic model,” inspired by Sweden’s experience.

In 1999 Sweden left decades of decriminalization behind, opting to criminalize the purchasers — the “johns” — and the pimps, but not the prostitutes themselves. Instead programs to encourage exit from the trade and alleviation of poverty took precedence, along with public awareness campaigns targeted at male purchasers and education campaigns for police to illuminate the horrors of human trafficking. Prostitution has diminished and government reports suggest there are almost no foreign women remaining in the trade. In fact, a Swedish judge-led independent inquiry in 2010 found that “the Swedish model has disrupted organized crime, deterred sex act purchasers, changed public attitudes, and cut street-level prostitution in half. Plus it found no evidence that the problem simply moved indoors as some skeptics had speculated.”

Canada should look to the Swedish abolitionist model, focusing on johns, pimps and traffickers as the culprits, for a constitutionally acceptable alternative to the present law

Prostitution is never going to be a safe career choice. The Ontario Court of Appeal acknowledged in Bedford that “prostitution is inherently dangerous in virtually any circumstance.” Moreover it found that street prostitution “has a profound impact on members of the surrounding community … and is associated with serious criminal conduct including … organized crime.”

For these reasons, not to mention the disproportionate representation of aboriginal girls and women in prostitution, Perrin recommends that Canada’s public policy should reject any notion of prostitution as a “lawful commercial activity” and take abolition for its objective, with the understanding that exiting the profession is the only way to ensure women’s safety. It should look to the Swedish abolitionist model, focusing on johns, pimps and traffickers as the culprits, for a constitutionally acceptable alternative to the present law. And the government should offer support to prostitutes, not the threat of criminal prosecution.

Such an approach, Perrin says, would offer a third option to the two under consideration so far between complying with the law, which prevents prostitutes being secure, and breaking the law, which invites criminal sanction, an unnecessarily stark dichotomy that has led to “a defeatist response that normalizes prostitution.”

Perrin’s report makes good, principled sense. Grounded in deep referential knowledge of his subject, and in refreshingly politically incorrect common sense, this report is a valuable contribution to a public-policy debate that may be heated and divisive, but one that will articulate our cultural understanding of “harm” – both to women and society. It’s a debate worth having, and one that is long overdue.

Source: National Post