Why the courts must decriminalize prostitution

by Kirk Makin

Want some action? In most of Canada, sexual services are just a click, a phone call or a short stroll away. Some are overtly marketed as nude massage parlours or body rubs. Other hide behind coy euphemisms: holistic centre; shiatsu; gentlemen's spa.

After choosing from a small selection of attendants at one such establishment, Toronto's Studio 409, one is led into a room with soft lighting, a shower, lots of towels and a selection of oils. The attendant lists a smorgasbord of services that include nude massage, fetishes and body sliding.

Body sliding?

“It can mean just about anything,” the attendant explains, laughing.

And the same is true of Canada's prostitution laws, a legal regime riddled with arbitrariness and hypocrisy. Enforcement is wildly uneven, when it takes place at all.

Yet the current laws are a masterpiece of coherence compared with the chaos that will break out if the Ontario Court of Appeal this month strikes down several central provisions of the sex-trade laws.

The court has set aside five days the week of June 13 to hear a joint provincial and federal appeal of last year's lower-court decision that invalidated prohibitions against maintaining a brothel, communicating for the purposes of prostitution or living on its avails.

That decision hasn't come into effect because of the pending appeal, but all year its broader implications have stirred up commotion and heated debate. The big question is: Has the moment come when Canada is ready to decriminalize prostitution?

A ruling that the law is unconstitutional would bind all Ontario judges and spark immediate legal challenges in other provinces that would cite the decision.

Many experts believe that if the Crown appeal fails, the Harper government will not venture into the morass of prostitution law, “for the same reasons as they avoid dealing with abortion,” says Mariana Valverde, a criminologist at the University of Toronto: “There is just too much to be lost and not much to be gained.”

Theoretically, prostitution – exchanging sex for money – has long been legal in Canada. But in practice, virtually any method of buying or selling sex is prohibited. It's Canada's half-baked compromise to avoid all-out confrontation between two camps that split long before the 2010 decision: One faction, led by religious groups and rural Canadians, objects to any loosening of the laws that govern sex work, fearing decriminalization could lead to underage prostitution and human trafficking. The other favours liberalization, provided there is no increase in crime and public nuisance. Whenever the two sides clash, committees are charged to review the laws. They report back months later with sensible proposals. These are ignored, and the daisy chain begins anew.

That is, until now. The horrific Robert Pickton murders in B.C. raised the country's awareness of prostitutes' vulnerability, and now the Ontario court's scrupu- lously written decision is at last providing an opportunity to sort the problem out.

If you listen to the people most affected – the prostitutes – it becomes clear that the rational thing is to destigmatize the oldest profession, to help it be practised more safely and sanely, as the normal part of Canadian life that, like it or not, it is.

With the midafternoon sun streaming through a living-room window of her condo, 17 floors above Toronto's east end, Victoria Love (her trade name) lives a comfortable, middle-class existence after 15 years in the business. But she has to be cautious. “I skirt around the law,” the slight 32-year-old says. “I go to places to meet my clients, and nobody knows what is going on. There is a lot of vulnerability, but I'm very careful to keep myself from running into legal problems.”

Such great care, and good fortune, have prevented Ms. Love from getting hurt or coming onto the police radar. To avoid bawdy-house charges, she does only outcalls. And she avoids any customer who raises her suspicions.

Others, she knows, are not nearly so lucky. “There is an incredible variety of experiences in the sex industry,” she says. “For some, the laws created conditions that led to horrific forms of violence. When the communicating law came into effect in the 1980s, we began to see missing women and severe forms of violence.”

Forced by the communication law to assess a potential customer hurriedly before getting into his car, street prostitutes are the ones most likely to end up beaten or dead. A 2006 study by Parliament's standing committee on justice and human rights found that at least 79 prostitutes were killed from 1994 to 2003. It concluded, as most researchers have, that street workers face the greatest peril.

Sex workers of all kinds seldom seek help from the authorities because their boyfriends can be charged with procuring or their children apprehended by child-welfare authorities. “Whether you're being arrested or not, your name is in the system now as a criminal,” added Katrina Pacey, a lawyer with Vancouver's Pivot Legal Society. “You will forever be marked.”

Thus, current law not only fails in its goal of preventing street prostitution, it also has forced sex workers of all types to operate in perilous isolation, afraid to reach out for help.

If the court throws out that law and Ottawa doesn't act, by default the mess will end up in the hands of municipalities. “They should be preparing pro-actively for this, but they aren't,” Prof. Valverde says.

She predicts that municipal politicians will panic and pass hasty measures that drive sex work further into the shadows – literally, figuratively and dangerously.

Policing paradoxes and social stigma

Just before the communication law was introduced in the 1980s, a number of prostitutes The Globe and Mail interviewed on Toronto's Church Street described a beat cop they had dubbed the Sperm Whale, based on his willingness to turn a blind eye in return for sexual services.

Today, it is rare to see a prostitute on Church, but a wary relationship endures between sex workers and the police, who are expected to be both pursuers and protectors.

The illegality of the sex trade helps the police in giving them a window through which they can watch out for underage boys and girls as well as human trafficking. Advocates say that while some police are understanding and see the arbitrariness of the law, others are judgmental and harsh.

“The vast majority of enforcement efforts have always been to target street-based sex work because it is the most visible aspect of prostitution and that's where the complaints are,” Ms. Pacey says. “It has made them incredibly vulnerable.”

Still, it isn't law enforcement that tends to irk sex workers the most. It is the constant need to lie about their vocation. It is having to stomach the frequent public indifference when a hooker is murdered. It's the sense of being an untouchable caste.

As Ms. Love says, “I'm a prostitute, which is a very stigmatized and devalued identity.”

The feminist debate always comes down to this: Are these women victims of exploitation or empowered women with a right to decide how they use their bodies?

The Crown argues that what sex workers need most is not decriminalization, but programs to help with addictions or mental problems and to aid them in developing work skills.

But, to the attendant at Studio 409, it is all about controlling one's own destiny. A full-time office worker who was attracted to the idea of stepping outside her workaday life, she works two evenings a week servicing men: “I get to meet a lot of interesting people,” she says. “And it gives me money to go travelling.”

Emily van der Meulen, a public-health expert at Toronto's St. Michael's Hospital and a strong advocate of reform, says she looks at prostitution as analogous to a young person settling for a burger-flipping job at McDonald's. “Maybe he would really like to be the CEO of Apple,” she says. “Unfortunately, Steve Jobs isn't going to give up his job. But it's not for me to say that the kid made a bad choice by working at McDonald's.”

Her point is that “choices are always constrained by social context. … Given those constraints, sex workers see this as the best possible avenue for them to make a living.”

Ms. Love, for her part, scoffs at the idea that she is a victim. “Those debates are so old to me,” she says. “People have sex in apartments. Well, sometimes, they have sex in an apartment and leave money on the table when they leave. What's the difference?”

A wave of international reform

Most countries that have decriminalized sex work did so after deciding that, since it will never disappear, it only makes sense to take a pragmatic leap to tolerant regulation. In the past decade, Australia, New Zealand and Germany have all embraced decriminalization, acknowledging that their own versions of the it's-legal-but-you-can't-do-it game were not working.

Meanwhile, Sweden went in a unique direction, based on a conviction that sex workers are victims of exploitation. Today, Swedish prostitutes are never charged or prosecuted – their customers, however, can be.

In Canada, politicians have repeatedly ignored cries for reform, leaving it to York University law professor Alan Young finally to persuade the judiciary to step in. During the week-long hearing last year before Madam Justice Susan Himel of the Ontario Superior Court, Prof. Young and the Crown brought out a parade of sex workers, criminologists and international experts arguing for or against decriminalization.

Judge Himel concluded that the communication law compels sex workers to operate in dark corners at great risk to their safety; that outlawing brothels forces prostitutes to work in solitude; and that the pimping law precludes them from hiring drivers or bodyguards to enhance their safety, as well as making it legally dicey to live with boyfriends or family members.

The reaction from sex workers was all over the map. Some cherish their anonymity and independence from state scrutiny, red tape and taxation. Legal reform would cost them at least some of that.

But there would be many payoffs. For example, labour protections would allow sex workers to participate in employment insurance and have recourse against brothel owners who force them to work unpaid overtime or unsafely. As in Germany, they might even form unions.

“Right now, some escort services … expect you to be on call 24/7, and you are fined if you miss a call,” says Susan Davis, a Vancouver prostitute-activist. “We have booking girls who work totally on commission, so they will send you anywhere. We really need to be covered by labour law.”

As for the canard that decriminalization will lead to neighbourhoods being overrun with leering prostitutes and unruly johns? As Judge Himel took pains to point out, police have ample charges at their disposal to deter public nuisances.

What's more, many politicians seem unaware that the Internet has profoundly changed the nature of sex work, reducing the need for prostitutes to troll for business in public. Studies have shown that the bulk of them now work in massage parlours or with escort agencies or communicate by phone or online with clients.

Only the most desperate remain on the streets. But there will always be some. “For as long as there is extreme marginalization, poverty, drug addiction and untreated mental health, there is going to be street-level sex work,” Ms. Pacey says.

Conversation needs sex workers' voices

Regulations drafted without the input of sex workers are prone to fail, Ms. van der Meulen says. They are the real experts on the realities of their trade, and any approach that didn't have them on board would create a new black market. Vancouver has already led the way, installing sex workers on boards and committees that influence municipal policy.

Ms. Davis attributes the city's changed attitude to the lingering trauma of the murders by Mr. Pickton. “No one here was unaffected,” she says, “so there is a desire to try something new.”

Under decriminalization, municipalities would find other tools – zoning provisions, licensing fees, surveillance and health rules – to regulate sex work. In large centres, brothels would probably be licensed.

But Gillian Abel, a public-health expert at New Zealand's University of Otago, warns that sex workers will shy away from any system that forces them to reveal their names and personal information. Brothel owners must be the ones who are subjected to background checks and divulge financial information, she says.

For those who don't think Canada is ready for a decriminalized sex trade, consider this: For 25 years, the country has existed without a genuine abortion law. Midwifery has gone from being an illegal activity to one that is regulated and widely accepted. Medical marijuana has become legal and Vancouver has even created a safe injection site for heroin addicts.

However controversial, they all reflect a move toward pragmatic accommodation rather than top-down control.

The sex trade, meanwhile, is everywhere, with its existence causing minimal public disturbance. If the political will to recognize and cope with that fact is too weak, then it will have to be done in the courts.

Gazing out at Toronto's skyline, Ms. Love muses about how the Ontario Court of Appeal may change her world. “There are fear-mongers who try to get people's knickers in a knot,” she says. “They say: ‘Oh, there's a prostitute next door!'

“Well, there are prostitutes next to everyone. We are just going about our business.”

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