A Defense of Prostitution

Cristina Amaya

 

 

Prostitution is the exchange of sexual activities for some form of payment--whether for monetary gain, a service, food, shelter, or material goods-- it is defined as prostitution by the government of Canada.

 

The term prostitution is sometimes thought to be derogatory as it is a word that carries heavy social stigma. Sex-work is the less offensive term used to describe people who participate in the sexual-service industry. This latter term also describes people who work as sensual masseuses, escorts, phone-sex operators, porn actors, dominatrix workers, and exotic dancers.

 

The Decriminalization of Prostitution

 

Prostitution is legal in Canada, but the practice has many legal restrictions. Recent lobbying efforts by sex-worker activists argue the formal Criminal Code infringes on the Canadian Charter of Rights and Freedoms for people involved in prostitution, thus calling for policy reform.

Image source: Flickr, Sexy Dynamite, 2010.

 

Current Laws Enforcing the Restriction of Prostitution

 

Section 210 (Common) Bawdy Houses: Prostitutes do not have the legal right to perform their services regularly in a space rented individually or communally.

Section 211 Transportation to (Common) Bawdy Houses:  Prostitutes and intermediaries may not direct individuals to a place commonly used for the purpose of prostitution.

Section 212(1)(j) Living on the Avails: An individual is not allowed procurement, in other words to earn income from prostitution as a third-party beneficiary. Under this law, a person may not force or influence other individuals to work in this field either.

Section 213 (1)(c) Communicating for the Purpose of Prostitution: Prostitutes and intermediaries are not allowed to solicit their work in public areas, which include any indoor or outdoor place where the public has access.

 

Historical Background of Prostitution Laws

 

In 1892 the Criminal Code was created to solve the public issues surrounding prostitution. Vagrancy and bawdyhouse laws made it an offense for women to practice prostitution and work in brothels. It was modeled after the English practice to eliminate public nuisance and enforce moral order. Section 175(1)(c) regarded any woman wondering the streets at night without a valid excuse to be committing vagrancy. Police were authorized to charge any woman who solicited prostitution in public.

 

In the 20^th century new procurement laws were introduced out of growing concern for human trafficking and specifically out of concerns for children sold into sex slavery.

 

In 1972 solicitation laws were introduced to replace the vagrancy law as there was increased pressure from women's groups and civil rights activists for reform. In addition, the 1970 Report of the Royal Commission on the Status of Women recommended the repeal of the vagrancy law after an extensive study of prostitution. Section 195.1 made it so the law no longer referred specifically to women practicing prostitution, and included anyone involved in prostitution. The law now prohibited prostitutes from soliciting inside vehicles as well.

Image source: Erotic Gem, 2007.

 

In 1978 the Supreme Court clarified soliciting had to be "pressing and persistent" towards a potential customer in the case of Hutt v. R. Engaging in prostitution in the privacy of a car was determined legal. In November, the Law Reform Commission of Canada Report on Sexual Offences announced that the gender factor of the laws needed to directly include male and female prostitutes in the Criminal Code.

 

In the 1980s prostitution increased drastically; some

Parliamentary agencies believe it was because of slackened laws and others believe it is because of the way the criminal code is designed to protect the public, not the prostitute. Professor John Lowman, who conducted a decade long study on prostitution agrees on the latter belief, that the laws propel incidents of prostitution by allowing it to be practiced in hiding (Maloney).

 

In 1982 Bill-C 127 was passed to define both sexes as part of the solicitation law as an amendment to the Criminal Code.  The procurement law was also changed to specify both sexes who are involved in prostitution. Both the Badgley (in 1982) and the Fraser Committee (in 1983) were formed to study the effects of sexual exploitation.

 

In 1984 The Badgley Committee stated people usually enter prostitution as children or youth more often than not. The Fraser Committee focused on the economic and social factors involved in street prostitution. Both concluded that criminalization does nothing to stop pimping and sex trafficking of minors. They also found that social and legal reform would curb the problem more than criminalization, as people enter prostitution mainly because of poor financial conditions, and lack of family support. They concluded that the soliciting law just drives the practice underground and does not eradicate prostitution, but makes it unsafe for people involved in prostitution as they are forced to practice in isolated areas to avoid persecution.

 

In December 1985 the communicating law was created, which ignored the recommendations of the Fraser and Badgley Committees. Up to date, this law makes it illegal to solicit prostitution only if there is a repeated offense of public nuisance. This amendment was set in place to solve the ambiguity of what kind of solicitation is illegal, as it defines all kinds of communication for the purpose of prostitution. The law now includes vehicles as public places, and thus an illegal area for a prostitute to conduct business. This law was designed to avoid public nuisance; not to give prostitutes more support and safety.

 

In 1988 Bill C-15 was passed, which made it against the law to buy sexual services from a minor. The penalty for procurement of a minor was increased to 14 years of imprisonment. 

 

In 1992 the Federal/Provincial/Territorial Working Group was created by the Ministers of Justice to review legislation and give recommendations based on their study of prostitution. They found that the prostitution laws under the Criminal Code could not be changed, because their observations showed that the public was split on whether there should be amendments or not.

 

In 2006 the organization First, a partner of the B.C. Coalition of Experiential Communities, made a plea for the permission to create brothel cooperatives in Vancouver. They stated these brothels would allow prostitutes ownership, control over their personal safety, and an opportunity to set health regulations. They argued this would lower crime during the predicted high demand of prostitution for the 2010 winter Olympics. Minister Judge Rob Nicholson rejected the plea in 2008 despite the Commons status of women committee's majority consent to allow the brothels to operate. Judge Nicholson stated he would be determined to see the ongoing battles declaring the criminalization of prostitution in Ontario and British Columbia courts during this time shot down as well, as he argued the abolishment of prostitution would be the only solution to stop crime.

 

Today

 

On September 28, 2010 Judge Susan Himel declared the Criminal code provisions regarding prostitution unconstitutional on the grounds that it violates human safety and liberty rights protected under sections 1, 2 and 7 of the Canadian Charter of Rights and Freedoms in the case known as Bedford v. Canada.

 

Former prostitutes Terri Jean Bedford, Valerie Scott (the founder of a safe sex organization called Maggie's, the director of the Canadian Organization for the Rights of Prostitutes or CORP, and a member of Sex Professionals of Canada or SPOC) and Amy Lebovitch (a spoke person for SPOC and currently a prostitute) went against the Attorney General of Ontario and Canada, REAL Women of Canada, The Christian Legal Fellowship of Canada, and The Catholic Civil Rights League in court.

 

Judge Himel gave a 30 day hold on her decision to allow the Crown the opportunity to make an appeal. The hold on the decision to decriminalize sections 210, 212 (1)(j), and 213(1)(c) of the Criminal Code for the province of Ontario was extended for the Crown to have sufficient time to make an appeal.

 

The appeal will be determined on April 29, 2011. The decision will not easily be attained, as there is no governmental consensus. Ms. Bedford publicly stated she is confident the decision will be in favor of eliminating criminalization for the sake of protecting prostitutes in harms way. Prime minister Stephen Harper countered this opinion by stating most of the government of Canada supports the Criminal Code, as they believe prostitution is "bad for society" and will fight to see the laws continued.

 

The End Results

 

Judge Himel recommends that all parties should carefully revisit the 20 years of research on prostitution brought up by opposing sides of the Bedford v. Canada case. She announced policy improvement would be benefitted by further investigations on the regulation of prostitution.  She contends here has never been a consensus on the prostitution issue due to the convoluted nature of the Criminal code. Furthermore, the infringement of constitutional rights makes the issue a pressing matter to be dealt with in more depth.

 

 

 

Taking a Position

 

Since prostitution is legal in Canada, the criminalization of almost every part of the act is contradictory and invalid. The Criminal code is in place to decrease prostitution and has only driven it underground, which has made it perilous for people practicing this profession. They have been denied the right that every other citizen in Canadian society has to be protected by the law.

 

Why Decriminalization is Important

 

Prostitution is one of the most dangerous professions in the world.

Its high susceptibility to violence is caused by its marginalization in society.  The criminalization of prostitution only perpetuates the neglect of prostitutes' rights to be respected and protected by the law. It singles them out from the basic rights that every other citizen in Canadian society is given.

 

The criminalization of prostitution violates the constitutional rights that include freedom of expression and association, protection from abuse against "life, liberty, and security" except when it is "not    in accordance with the principles of fundamental justice," the right to protection by the law, and an objective and fair trial before being proven guilty of a crime under the Canadian Charter of Human Rights and Freedoms. This is a serious and unacceptable offense of the constitution of a country that prides itself on the values of liberty, equality and justice for all.

 

Aggressive pimps, corrupted police officers and aggressive clients that get away with mistreating them in unsupervised areas cause brutality against prostitutes. Justice is not granted to prostitutes, because of a meretricious mentality that prostitutes deserve abuse. They are undermined and devalued by the justice system for selling sex. The fear of being accused as an accomplice to the illegal acts of prostitution silences witnesses from reporting abuse as well. This further complicates ways to combat violence and ensure justice is met for assaulted prostitutes through the court system.

 

The criminalization of prostitution further alienates prostitutes from the protection of the law and pushes them to exposure in high crime areas where gangs and drug traffickers are prevalent and there is no vigilance. Drug traffickers usually have a perturbed notion of morality that justifies the mistreatment of prostitutes. The prostitutes' proximity to the drug business not only makes them susceptible to drug use, but also gives way for prostitutes to be involved in a dependent cycle of associating with drug related criminals. As a result of the Criminal code, prostitutes are vulnerable to being exploited by gangs and drug lords as well as being coerced into sexual slavery.

 

Clients who are usually strangers to street prostitutes cannot be screened properly for potential behavioral problems, inebriation or drug use. Prostitutes are forced to conduct business in a rushed manner, since they have to avoid getting caught in the act of defying the communicating law out of the fear of being jailed or fined. This contributes to higher risks of attacks against prostitutes as they are denied the time to take precautionary steps before working.

 

Prostitutes may not work together or hire bodyguards to ensure self-protection and independence, because of the law against "living on the avails." Prostitutes are thus denied a support system to prevent the incidence of violence and the chance to identify the assailant in the event that they are violated, go missing or are kidnapped. The third party witness, usually another prostitute working the same area, is less likely to report information out of fear of being subject to punishment under the procurement or communicating law.  

 

Due to underground business, child prostitutes are also less likely to be detected as they are hidden from the lawful regulations that stop them from being exploited.

 

Health precautions that prevent STDs like the fatal disease AIDS from spreading are not possible as safety measures are most likely ignored, because of the illegal context of prostitution and the need to draw business under rough and desperate circumstances. The law does not impose health regulations, because the "bawdy house" law does not permit prostitutes from operating facilities that would allow for the control of these safety precautions.

 

Street prostitution is less safe, because prostitutes must seek customers by soliciting random strangers off the streets. If they were allowed to operate legally in a carefully controlled business indoors, then they would be much safer as rules could be set in place for them to screen clients carefully. The "bawdy house" law makes it illegal for them to work indoors, so prostitutes are forced to work outdoors in dingy areas away from the public, which put them at higher risk of assault by drunk or high people, sociopaths, and fugitives.

 

Evidence shows that women are punished more harshly for prostitution then men are, because women are more likely to be suspected and condemned by the police.  In consequence, women are given longer sentences in jail and higher fees to pay for working in this business. Prostitutes who are forced to work on the streets, because they have no where to go are more prone to being charged with crime then those that have the means to rent private rooms to work, because they are more exposed to the police. This makes the application of prostitution laws imbalanced, because punishment is more than likely to be gender related and is based on how much the person being charged with the crime is presumed to be defying the law.

 

 

 

 

 

Prostitutes have also been unjustly accused and charged without actually committing the acts under the Criminal code at the time of their arrest, but solely for fitting a stereotype and being exposed to police on the street. They are also penalized when they report abuse from pimps and "johns" for partaking in the business, so avoid accusing their violators. Research done by the Standing Committee of Human Rights and Justices confirm this finding to be certain.

 

Prostitution has been around since history has been recorded. It will most likely never cease to exist, because sexual activity is seen as a necessity to most people. There will always be people seeking services to fulfill their sexual satisfaction.  In the USA, China, the Islamic Republics, and South Africa prostitution is illegal and nevertheless prominent. This demographic is coupled with high rates of violence in these countries.

 

It is clear prostitution will not cease to exist with laws designed for its obliteration as it only harms the people who practice it.  Violence cannot be justified against this population for the unsubstantiated reason they choose to sell sexual services. They are innocent people, as they do not work to harm others, but to satisfy a willing person's sexual needs. They get hurt unfairly for engaging in prostitution and must be protected by the law. Prostitution laws must be reformed internationally to ensure their safety.

 

In Sweden, the clients are penalized for buying sexual services. While this initiative for reform has resulted in significant decrease in prostitution, it has also driven it deeply underground. This leaves the remainder of people who continue to practice prostitution at the mercy of mostly unstable clientele that dare to take the risk of being charged with crime. Prostitutes compromise with these clients by allowing them to have sexual intercourse without condoms to compensate for the risk they take. Prostitutes are also driven to desolate areas by paranoid clients to ensure they do not get caught in the act. This contributes to the danger of being potentially attacked or murdered as well as being infected with STDS. Rape crimes have also increased since the country made it illegal for people to buy sexual services. There is not enough evidence to prove the increase in rape crimes has to do with the criminalization of clients, however there is an indication that it could be connected to the fact that clients are not allowed to buy sex, so seek it forcefully instead.

 

In New Zealand, the Prostitution Reform Act was created in 2003 to make prostitution legal with regulations set in place for the equality and protection of people practicing this occupation and to address public health safety concerns.  Violence has diminished towards prostitutes in this country, the incidence of HIV infections has decreased, and prostitutes are now successfully under the umbrella of the law. The government to ensure that children under the age of 18 are not working as prostitutes regulates brothels. Protection against abuse and exploitation is addressed and public health concerns are met through the regulation of preventive methods like health education workshops and the distribution of condoms and the government supplies sterile needles.

 

Recommendations

 

Prostitutes should not be penalized for providing sexual services, so the people involved in the exchange are all consenting adults. This population is not harming anyone when both themselves and the clients have had the freedom of choice to decide whether they want to be involved in this practice. They should be allowed to decide their own choices and concerns for morality in private, especially considering we live in a liberal society.

 

The true perpetrators are those who force others into slavery, abuse people and exploit minors. The laws should concentrate on punishing prostitutes who create public nuisance or other people who inflict harm on prostitutes and children. 

 

 

It is necessary to make sure prostitutes have the adequate protection they need in a society that views prostitution as completely taboo, yet accepts the sale of sex indirectly through commercial advertisements. It is not enough for special interest organizations to vouch for their protection; the government must support their rights and safety. The public needs to be re-educated to respect prostitutes and allow them the rights that all citizens have to personal wellbeing, safety, and health. Perhaps if the social stigma of prostitution as a threat is addressed, women in general would also be treated with more respect, since instances of being accused as "whores" meant to insult them would be less common.

 

Governmental outlets where prostitutes can seek guidance and support should be provided in the event that prostitutes need help or desire alternative work experiences. Legal facilities where prostitutes can work together and form businesses should be in place. The government can then regulate adult prostitution in terms of educating and supplying safe sex practices by overseeing these businesses.

 

Prostitutes should be allowed to work indoors in a safe and regulated environment where they can call for help if they need to and they can hire security to protect them.   They should be able to form a support system and operate businesses behind closed doors where they will not create public disturbance or be subject to social stigma or violence.

 

The communicating law should be amended so prostitutes may solicit their work on the internet discreetly, and be able to keep tabs on all existing and potential clientele. In addition, prostitution should be declared a tax paying profession with opportunities to create unions, have worker compensation and benefits like any other job.

 

Conclusion

 

Opposing sides of the prostitution issue generally agree on one matter: Canadian social and legal reform is a necessity at this point in time and should be addressed immediately. Canada can learn a great deal from the approach taken by New Zealand, as this country has been successful in improving the prostitution issues up to date. 

 

 It is clear that criminalization does not deter prostitution, but only puts those who practice it in jeopardy. There is substantial evidence that sex-trafficking and sexual exploitation of minors is not solved with laws against the adult consent of sexual services, therefore should not play a role in deciding the decriminalization of prostitution in Canada. Since it poses a threat to the safety of prostitutes, criminalization should be amended across the nation as soon as possible to protect prostitutes from further injustices caused by the law. 

 

Image source: Flickr, Prostitutes, 2007.

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