So, over the recent holiday season while we were all stuffing our faces with rich foods and binging on wine, the Supreme Court of Canada struck down this country’s prostitution laws.
Quite the way to end a year.
In a unanimous 9-0 decision handed down Dec. 20, the court ruled that existing Criminal Code provisions which prohibit running “a common bawdy-house” (aka a brothel), living on the avails of prostitution and communicating in public with clients are not only over-reaching but also unconstitutional because they infringe on prostitutes’ right to security of person as guaranteed to all Canadians under our Charter of Rights and Freedoms.
Wrote Chief Justice Beverley McLachlin: “Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes.”
Before we go any further, let’s be clear: when talking about ‘prostitutes,’ we’re primarily talking about women. This is an important fact to keep in mind for reasons that will soon become clear.
Right then, moving on.
Acknowledging that “the regulation of prostitution is a complex and delicate matter” (BIT OF AN UNDERSTATEMENT THERE), the court suspended its ruling for one year in order to give Parliament time to respond.
To which I say: yeah, good luck with that, Parliament.
Call it prostitution or call it sex work, the act of exchanging sex for money is a controversial subject. It has always been a controversial subject and likely will remain so for quite some time.
To be honest, I’ve been avoiding writing about this ruling because I feel like to do so is to tumble down a rabbit hole.
By that, I mean that a range of arguments can, at times, present as equally compelling.
Prostitution is often painted as a black-and-white issue but there’s plenty of grey to be found when one shuts up for a bit and listens to the diversity of voices that exists within the ongoing debate on this topic — a debate that has been raging for decades, long before this latest court challenge successfully blew up the current legal framework and left Canadians on the precipice of a social-policy morass, wondering where the hell we go from here.
Prostitution, the act of exchanging sex for money, is not illegal in Canada. Never has been. What is illegal, however, is pretty much everything related to it — in particular, activities that may enable someone to perform that act with a modicum of safety.
And really, that’s what this legal challenge was about.
By prohibiting people from running or working in a brothel, for example, the government has been prohibiting prostitutes from working in the relative safety of their homes or hiring security staff.
By prohibiting a person from “living off the avails,” the government has been prohibiting sex workers from sharing an apartment with their partners and/or contributing money towards normal, everyday household expenses like, say, groceries.
And by making it illegal to communicate in public about sexual services for money, the government has been limiting street prostitutes’ ability to size up and/or negotiate with a potential client before jumping in the car.
Street prostitution makes up only a small fraction of the sex trade but is the most dangerous type of sex work. Women who work the streets are one of the most marginalized, vulnerable groups in our society. They face disproportionate levels of violence. They’re the people who end up dead at the hands of serial killers.
According to those who support the Supreme Court decision (a group which includes current and former sex workers), getting rid of current prostitution-related offences gives people who sell sex more control over the conditions of their work — which, in turn, will help them keep themselves safer.
It’s hard to argue with that, right? Safety is a good thing.
Similarly, it’s hard to argue with the positions put forth by National Post columnist Christie Blatchford in her reaction piece, written as a series of reasons why she agrees with the decision:
Maybe it’s because in my observation, there is so often a quid pro quo aspect to relationship sex — gorgeous young women with rich old guys, older gay men with beautiful boys, famous people with other famous people, lifeguards with lawyers — that I am hard-pressed to take offence when the transaction is merely franker…
Maybe it’s because I can’t stand those who would impose their morality on others, and increasingly prefer the live-and-let-live philosophy.
There’s a theory floating around out there in the world — one I’ve uttered with bitterness and contempt at various times in my life — that all women are prostitutes, some just get paid more (or rather, differently) than others.
It’s the way our society is set up; the game we’re all forced play to some extent, some of us more overtly and/or enthusiastically than others.
Women are coveted for their youth and their looks (both fleeting, of course, JOKE’S ON US, LADIES), and men for their money and power. Exchanges are made for the mutual benefit of all parties involved. Or something.
When you look critically at our dating rituals (the ‘three date’ rule springs to mind), when you analyze the assumptions that inform rape culture, when you stop and think about the terms ‘gold digger’ and ‘kept women,’ it would seem Blatchford has a valid point, even if it’s one that makes us uncomfortable.
(An aside: I suggest that there’s another reason why this line of thinking makes many people — particularly women — uncomfortable, and that is that no woman wants to be compared to a prostitute, and not only because prostitutes are the lowest of the low in our cultural hierarchy.
Othering those who work in the sex trade serves an additional purpose. It provides self-identified ‘good girls’ with a false sense of security. We’re not ‘bad girls’ like them — and so long as we’re not, we won’t suffer the horrible things that happen to them.
We’ll never be fed to pigs. Admitting to ourselves that we are more similar as women than we are different is too scary a thought to entertain, even though it’s the truth.)
And then there’s the morality thing Blatchford brings up, oh my.
One person’s normal is another person’s WTF. Who are we to judge what consenting adults want to do with their time and their bodies? As an unapologetically pro-choice feminist, I try really hard not to impose my morality on others since I expect the same in return.
For all I want women — all women — to be as safe as possible, and for all I can intellectually understand that the reality of sexual relationships in today’s world can be a messy landscape of power and need and give and take and whatever gets you through the night (LOVE IS A BATTLEFIELD, PEOPLE), and for all I agree that attempting to impose one’s own morality onto someone else is folly bordering on cruelty, I just can’t get behind prostitution.
I don’t buy it as a neutral industry like any other. It’s an industry built on exploitation and oppression.
For every one woman who choses, as a adult, to pay her bills by working as an escort, there’s thousands of girls who began their prostitution ‘careers’ well before their 18th birthdays — girls damaged by sexual abuse, girls strung out on drugs and engaging in survival sex because they’re desperate. Girls who grow up to become the women the rest of us look at with distain because their continued attempt at survival by any means necessary make us uncomfortable and brings down our property values.
These girls and women are exploited because, in our society, they can be. It’s their purpose. Patriarchy is built on exploitation and oppression. It’s a system in which women are the inferior sex class. A system in which female bodies are sexually objectified and commodified.
I have no doubt that there are individuals for whom sex work is just another job, maybe even a job they enjoy. Within a patriarchy, however, prostitution can never be neutral.
Or, to quote the always-awesome Internet feminist Twisty Faster:
Unless patriarchy is smashed, prostituted women will always be oppressed, because all women will always be oppressed.
The Women’s Coalition for the Abolition of Prostitution, a group that includes the Canadian Association of Sexual Assault Centres, the Native Women’s Association of Canada, the Canadian Association of Elizabeth Fry Societies and the Vancouver Rape Relief Society, among others, was one of the interveners that presented to the Supreme Court. Its written submission argued:
Prostitution is a practice of sex inequality. Most of those prostituted are women and girls. Almost all buyers/johns and most pimps/profiteers are men. The buying and selling of women’s bodies in prostitution is a global practice of sexual exploitation and male violence against women that normalizes the subordination of women in a sexualized form. It exploits and compounds systemic inequality on the basis of sex, Aboriginality, race, poverty, age and disability.
The submission goes on to rebut the notion that allowing prostitutes to communicate publicly will help keep them safe by allowing them to screen clients:
Decriminalizing johns and downloading responsibility for policing them onto prostituted women revives the long-discredited notion that women can and should be privately responsible for preventing male violence. Any man can be violent at any time and women should not be expected to predict when a man will turn violent.
Victim-blaming under the guise of violence prevention: not just something that happens to ‘good girls’ in our culture.
The coalition’s position is that prostitution-related laws are only unjust when used to criminalize women, not when applied to “johns, brothel owners, pimps and profiteers.” This suggests it’s supportive of the legal approach to prostitution adopted by Sweden and Norway. Known as the Nordic model, this framework decriminalizes sellers of sex and offers targeted supports to those who want out while criminalizing those who seek to buy it — going after the demand, not the supply.
Canada’s federal government could choose to implement something similar here and, if I had to make a choice, I think this model makes the most sense.
It’s a harm-reduction strategy meant to keep vulnerable women alive and give them options while still recognizing, as Sweden’s law does, that prostitution is not neutral; rather, it’s a form of violence and oppression against women and girls.
Good luck, Parliament.