It is, but it isn’t

Most of you probably heard about the court proceedings on prostitution law which were held in Ontario last week, and you may be a bit confused about what’s going on.  Prostitution is, after all, legal in Canada, so what’s the fuss about?  The problem is that prostitution isn’t actually legal in Canada, at least not in the way most people intuitively use that word; it’s merely legalized, which is a horse of a different color.  So I figured an essay explaining what’s really going on up there and why might be welcome.

First of all, you must understand that the way the terms “legalized” and “decriminalized” are used in reference to prostitution is the opposite of the way they’re used in regard to drugs.  When people speak of marijuana being “decriminalized” they mean that merely having it won’t get you jail time, but there are still all sorts of laws surrounding it (sometimes even fines for possession);  “legalization” basically means what it sounds like.  In prostitution, on the other hand, “decriminalization” means that transactional sex is viewed as an arrangement between consenting adults in which the state has no legitimate interest (basically like any other sex), whereas “legalization” means it is viewed as a special case and therefore subject to all sorts of laws that aren’t applied to other professions.  For example, prostitution is legalized in Nevada; it’s legal if one does it in certain counties, in a licensed brothel owned by somebody else, and follows a slate of rules so restrictive that about 70% of Nevada prostitutes prefer to work illegally.

Nevada is also a good example of the highly arbitrary character of regulations under legalization schemes; in Canada and the U.K. brothels are banned, but in Nevada they’re the only venue for prostitution that is allowed!  Most European legalization regimes are much more liberal, and those in Australia aren’t tremendously different from full decriminalization (which is what New Zealand has).  But in Canada the laws were designed to make prostitution de facto illegal by forbidding most things prostitutes do, despite the fact that the work has never been de jure illegal.

The social purity movement of the late 19^th and early 20^th centuries which resulted in the universal criminalization of prostitution in the U.S. was not so popular in Canada, and most Canadian laws surrounding the trade tended to focus on the perceived “social ills” of prostitution rather than on the activity itself, which was never actually criminalized.  The three most important of these laws are prohibitions against “keeping a bawdy house” (relatively unchanged since 1892), “communicating for the purpose of prostitution” (largely reworked in 1985 to expand police powers in response to public complaints about streetwalkers) and “living off the avails of prostitution” (amended in 1997 in response to early “human trafficking” hysteria).  The first of these makes it illegal for a prostitute to have one place in which she habitually sees clients, the second forbids any public communication (soliciting or advertising) of services, and the third makes it illegal for any individual to “live wholly or in part on the avails of prostitution of another person” (i.e. to derive any regular income from a prostitute).

The problem with all three of these laws is that, no matter what their intent might have been, they make prostitution much more dangerous.  Brothels allow groups of prostitutes to work together for mutual safety, and even a hooker who chooses to work alone is safer in a place she chooses herself (“incall”) than in a place designated by the client (“outcall”).  The second law has a disproportionate effect on streetwalkers; though it forbids escorts from advertising it does not prohibit private conversations on the subject, and is therefore more of a nuisance to them than a danger.  But because 90% of all Canadian sex-work prosecutions are due to this law, streetwalkers try to avoid attracting police attention by moving into dimly-lit side streets and conducting negotiations quickly…thus robbing them of the ability to properly assess a customer before jumping into his car.  For escorts, the third law is the worst one; though its supporters invariably describe it as an “anti-pimping law”, escorts almost never have pimps and the law can be used against any adult who derives regular income from a prostitute, thus criminalizing invalid parents, university-age dependent children, husbands, boyfriends, roommates and employees (such as maids, secretaries or bodyguards) and rendering them vulnerable to felony charges punishable by up to ten years in prison.

But on September 28^th of last year, Justice Susan Himel of the Ontario Superior Court decided in favor of three sex workers by ruling that these three laws in particular violated the Canadian Charter of Rights by increasing the danger prostitutes face without a compelling reason for doing so.  Predictably, the government appealed, but what was not predictable was the language in which that appeal was framed:  government lawyers argued that since prostitution is “inherently dangerous”, Parliament has the right to artificially increase that danger with restrictive legislation.  This is such an absurd concept, one almost has to wonder if the government isn’t trying to lose the appeal; public opinion is running about 70% in favor of decriminalization (and editorial opinion even higher)  since the argument was publicized in March, and on the first day of the hearing the head of the appeals panel repeatedly interrupted Crown Counsel Michael Morris with questions like, “Isn’t it self-evident the laws produce harm and don’t protect sex workers?” and “If its legal, why would you want to make it impossible for them to work – isn’t this like passing a law to prevent store owners installing security?”

The judge is of course correct, but it’s surprising to hear such a lucid viewpoint verbalized by anyone in power virtually anywhere in North America.  It may be some time before the judges announce their verdict, and even if Himel’s ruling is upheld the government will certainly appeal to the Canadian Supreme Court.  But it’s heartening that prostitutes are finally being allowed to speak the truth in a highly-public venue about the damage done by the repression of our trade, and whatever the outcome those truths might eventually influence public discourse in Canada’s chronically-uptight southern neighbor.