In the current discourse, women are being asked to view decriminalization or legalization of prostitution as : a means of showing respect for women in prostitution ; liberatory and pro-sex ; a means of reducing prostitution’s harms ; and an acknowledgement that prostitution is a form of work.
To evaluate these claims, Action ontarienne contre la violence faite aux femmes (AOcVF) commissioned a report by Shelagh Day, a leading human rights analyst. Prostitution : Violating the Human Rights of Poor Women asks : are prostitution, and the decriminalization or legalization of prostitution, consistent with the human rights of women ? The report concludes that prostitution, and the decriminalization of prostitution, cannot be squared with women’s constitutionally entrenched rights to equality and security of the person.
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For women’s organizations that are dedicated to advancing the equality of the poorest and most vulnerable women, this is an important moment to take a position on the law with respect to prostitution. Not only does the ongoing, overwhelming violence of prostitution require a response, but in both political and judicial arenas, Canadian laws on prostitution are under scrutiny.
Two Parliamentary Committees have recently issued reports on prostitution and trafficking in Canada. In addition, two constitutional challenges have been filed in Ontario and British Columbia courts that seek to strike down the sections of the Criminal Code that prohibit communicating in public for the purpose of selling or buying sex, living on the avails of prostitution, and keeping a common bawdy house. These constitutional challenges are likely to be heard in 2009. Women’s organizations need to be ready to contribute to a renewed debate.
For poor women and girls in Canada, prostitution is a means of obtaining survival income. The central question for any prostitution reform is : what will help women, particularly the poorest racialized women, to escape the violence and inequality of prostitution ? There appear to be two different responses to this question in Canada, and in countries around the world. One response is to decriminalize or legalize prostitution ; the other is to prohibit men from buying women and to help women to escape from prostitution.
What both sides in this debate seem to agree on is that no social good is served by using the criminal law against women who are in prostitution. Criminalizing poor women for the impact of poverty, racism, early sexual abuse, and the lingering effects of colonization does not seem just.
The disagreement is about how to deal with men who buy sex and with those who profit from the sale of sex – the pimps, brothel owners, and others who control the prostitution industry. Currently, there are two principal approaches. Advocates for decriminalization or legalization say the men who buy women, the pimps and the prostitution industrialists should be decriminalized too. Abolitionists say buyers, pimps and prostitution industrialists should remain criminalized and be barred from profiting from the sale of women’s bodies.
In the current discourse, women are being asked to view decriminalization or legalization of prostitution as : a means of showing respect for women in prostitution ; liberatory and pro-sex ; a means of reducing prostitution’s harms ; and an acknowledgement that prostitution is a form of work.
To evaluate these claims, Action ontarienne contre la violence faite aux femmes (AOcVF) commissioned a report by Shelagh Day, a leading human rights analyst. Prostitution : Violating the Human Rights of Poor Women asks : are prostitution, and the decriminalization or legalization of prostitution, consistent with the human rights of women ? The report concludes that prostitution, and the decriminalization of prostitution, cannot be squared with women’s constitutionally entrenched rights to equality and security of the person.
What is the difference between decriminalization, legalization, and abolition ? Decriminalization is the legal approach espoused by those who have filed the two constitutional challenges. Decriminalization would mean removing sections 210, 212(1)(j) and 213(1)(c) from the Criminal Code so that there was no law prohibiting communicating, or living on the avails of prostitution, or running a common bawdy house.
This would have the effect of decriminalizing the women who are in prostitution. But it would also decriminalize the buyers, the pimps, and the prostitution industry as a whole. It would make prostitution activities, and the prostitution industry, legal.
Proponents of decriminalization favour this approach on the grounds that : 1) prostitution is sex between consenting adults and governments should not interfere ; and 2) decriminalization will reduce harms to women in prostitution because women will be able to run their own brothels legally and be safer in indoor prostitution than on the street.
Decriminalization is a gender-neutral approach that treats the (mainly) women who sell sexual services and the men who purchase them as though they were the same. It also treats all of those involved in prostitution – the women, pimps, and owners of large and small brothels, massage parlours, strip clubs – as though they were the same, by rendering legal all prostitution-related activities.
Decriminalization and legalization are seen by some to be different approaches. The term ‘decriminalization’ is used to indicate that the goal is to remove all criminal sanctions on prostitution and prostitution-related activities and to treat it like any other business. Legalization, by contrast, refers to legal regimes that remove criminal sanctions but also regulate prostitution.
In reality, the difference between decriminalization and legalization seems to lie merely in how much regulation of health and safety, zoning, licensing, or advertising is put in place after criminal sanctions are removed. In Germany, the state of Nevada, (U.S.A.), some states in Australia, and the Netherlands, which have legalized prostitution, regulation includes any or all of : registration of prostituted women, health and safety regulations, licensing of prostitution-related businesses, controls on the location and size of establishments, and the creation of “tolerance zones”. However, in the two jurisdictions that have ‘decriminalized’ – New Zealand and the state of New South Wales in Australia - governments also license brothels and impose zoning restrictions on where prostitution – indoor and outdoor – can be carried on. The main feature of both decriminalization and legalization is that prostitution is normalized by making it a legal activity and business.
The alternative legal approach to prostitution is abolition. This approach seeks to end prostitution based on the understanding that prostitution is a form of male violence against women, and an obstacle to women’s equality with men. Laws that have abolition as their goal decriminalize women in prostitution, but criminalize the buyers and the prostitution industry.
Sweden’s 1998 law is the leading example. Sweden’s Act Prohibiting the Purchase of Sexual Services makes it a criminal offence to obtain sexual services for payment whether they are purchased on the street, in brothels, or in massage parlours. Having embraced women’s right to equality, Sweden’s policy seeks to end prostitution, rather than manage or legitimise it.
The AOcVF report shows that, so far, decriminalization and legalization approaches are not achieving their espoused goals – that is, making women in prostitution safer, reducing health risks, and reducing street prostitution.
Jurisdictions that have legalized cannot show that women are safer, or that street prostitution is diminished. On the contrary, at the conclusion of a 2003 comparative study of legal regimes in the state of Victoria in Australia, Ireland, the Netherlands, and Sweden, Julie Bindel and Liz Kelly at London Metropolitan University, warned that legalization leads to an expansion of the sex industry, trafficking increases and organized crime flourishes .
In Canada, the federal all-party Subcommittee on Solicitation Laws of the Standing Committee on Justice and Human Rights rejected legalization as an approach to prostitution law reform and accepted evidence that “legalization has not alleviated violence against individuals selling sexual services – violence may even have increased.” Pimps have not disappeared in jurisdictions that have legalized prostitution ; neither has street prostitution .
A new report on New Zealand, one of the two jurisdictions that has decriminalized, seems to show a similar pattern. Street prostitution has not reduced since the introduction of the Prostitution Reform Act 2003 ; the law has had no impact on street-based prostitution, and little effect on the violence that women in prostitution experience .
By contrast, both supporters and critics of Sweden’s law agree that street prostitution has been reduced by about 40 per cent since its law was introduced in 1998, and that the number of women trafficked into Sweden is low because the country is not viewed as an attractive destination country.
However, even if the record of decriminalization and legalization were better, the AOcVF report asks : is some reduction in the harms of prostitution an adequate goal, given Canada’s commitments to the substantive equality of women ? The report concludes that harm reduction, at bottom, is a position of capitulation. Decriminalization advocates have given up on the fundamental struggle to achieve equality and autonomy for the most vulnerable, racialized, poor women. They have turned instead to a defensive attempt to protect women from the worst harms that prostitution can bring, not by changing the conditions that catapult women into prostitution or by helping them out of prostitution, but rather by, ostensibly, giving them better market conditions in which to be self-employed prostitution entrepreneurs.
