The complexity associated with prostitution

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The Supreme Court of Canada has struck down three prostitution provisions in the Canadian Criminal Code. They have found that legislation which criminalizes the operation of a common bawdy house, anyone who lives wholly, or in part, off the avails of prostitution of another person, and communicating in public for the purpose of engaging in prostitution or obtaining sexual services, is unconstitutional.

The Canadian Government has one year to devise a new legislative agenda.

It is disappointing when citizens of a democratic country allow an unelected judicial body to dictate when to make or change laws. The right to enact legislation lies solely with the people. Going to the judicial system on a constitutional challenge completely undermines the principal of democracy and does not hold elected officials accountable to bringing issues of national importance to Parliament to be debated.

As a result of the Supreme Court of Canada ruling, there are a number of special interest groups lobbying for the adoption of the Nordic Model into Canadian Law. Member of Parliament Joy Smith has also requested individuals who support the Nordic Model to sign a petition (the first step in initiating new legislation). Adoption of the Nordic Model would mean criminalizing the purchasers of sexual services.

The issue of prostitution is a controversial subject not just for Canada, as it is linked to other issues involving human trafficking, women’s rights, child exploitation, social stigma, organized crime, drugs, and health and safety.

A sustainable approach is required to strike a balance between those who wish to abolish prostitution versus those who wish to openly embrace it without regulation. Despite the two sides being on opposite ends of the spectrum, common ground is met on three points:

a) Prostitutes should not be criminalized

b) Sexual exploitation should be criminalized

c) Services should exist for those wanting to exit prostitution

It is likely that the government will enact a specific criminal code provision and nation-wide stance to encompass all three abovementioned points. Where the debate will be is whether the government should regulate prostitution or have the exchange of sex for money and all its related activities completely decriminalized.

If criminalizing purchasers of sexual services is adopted into the Canadian law, there will be debate as to whether prostitution should be regulated in a way to prevent social nuisance. For example, licensing of brothels may be required, health and safety inspection of brothels may be required, or brothels may only be allowed to operate in commercially zone areas versus residential areas.

As for enforcing the three prostitution laws, whose fates are currently in limbo, officials may be reluctant to or uncertain as to whether they should charge anyone under these specific Criminal Codes provisions within the one-year grace period. If criminalizing the purchasers of sexual services is adopted into the Canadian Criminal Code, this may require increased funding and resources to police departments so that sting operations can be performed to catch johns in the act of purchasing sex. Further, if the prostitution laws are revised to incorporate the caveat of sexual exploitation, processing a violation of the criminal code involving exploitation, in the judicial system may be problematic, as the burden of proof may lie on victim testimony.

Therefore, there is no easy answer to enacting new legislation and policies when it comes to the issue of prostitution.

29.8 million people enslaved

The Walk Free Foundation recently published their inaugural Global Slavery Index report. It provides a ranking of 162 countries around the world, based on three factors:

  • Estimated prevalence of modern slavery by population
  • A measure of child marriage
  • A measure of human trafficking in and out of a county

The Walk Free Foundation defines modern slavery to include: slavery, slavery-like practices (debt bondage, forced marriage, sale or exploitation of children), human trafficking and forced labour.

Based on the 2013 Global Slavery Index report, there are 29.8 million people enslaved in the world.

The countries with the highest prevalence of modern slavery are: Mauritania, Haiti, Pakistan, India, Nepal, Moldova, Benin, Cote d’Ivoire, The Gambia, and Gabon

The countries with the lowest prevalence of modern slavery are: Denmark, Finland, Luxembourg, Norway, Sweden, Switzerland, New Zealand, United Kingdom, Ireland, and Iceland

Of the 29.8 million people in modern slavery, approximately 76% are enslaved in India, China, Pakistan, Nigeria, Ethiopia, Russia, Thailand, Democratic Republic of Congo, Myanmar, and Bangladesh. India is estimated to have 13,300,000 to 14,700,000 people in modern slavery. China is estimated to have 2,800,000 to 3,100,000 people in modern slavery, and Pakistan is estimated to have 2,000,000 to 2,200,000 people in modern slavery.

72.14% of the 29.8 million people in modern slavery are in Asia, 16.36% are in Sub-Saharan Africa, 3.78% are in North and South America, 3.36% are in Russia and Eurasia, 2.54% are in the Middle East and North Africa, and 1.82% are in Europe.

The underlying factors contributing to modern slavery in the ten countries found to have the highest prevalence of modern slavery are: poverty (low GDP per capita); a lack of human development; and culturally tolerated forms of slavery or slavery-like practices, such as chattel slavery of the Haratins in Mauritania, exploitation of children through restavec practices in Haiti and vidomegon practices in Benin, and caste and debt bondage in India and Pakistan.

Of the countries that have the lowest prevalence of modern slavery, each has a high GDP, high investment in human development (health care, education, etc), national budget allocation towards combating modern slavery, strong child protection systems, national laws addressing modern slavery and funded law enforcement agencies to enforce the laws, presence of non-government organizations funded and freely permitted to operated in response to modern day slavery, and accountability mechanisms in place.

The Global Slavery Index report can be downloaded at: http://www.globalslaveryindex.org/

The movement behind the Swedish model of criminalizing the demand-side of prostitution

(The following text highlights points laid out in Arthur Gould’s manuscript entitled: The Criminalisation of Buying Sex: the Politics of Prostitution in Sweden, Jnl Soc Pol 30 (3): 437-456)

A Commission to investigate the sex trade in Sweden was proposed by the Minister of Equality in 1993, with the rationale that prostitution had changed its character and therefore could no longer be examined at the national level. The investigation of this Commission led to the following findings:

  • The damage prostitution incurred affects not only the prostituted individuals but society at large
  • Those most likely involved in prostitution were sexually abused
  • The view that John’s not only thought they were entitled to sex services, but also disregarded a woman’s right to human and decent treatment
  • Prostitutes often abused drugs or alcohol
  • Sweden’s superior welfare system, greater gender equality and effective social work programs contributed to the country’s low numbers of prostitutes
  • With the increase in technological development overseas, the potential for sex tourism, pornography, trafficking of women and the sexual exploitation of children would increase
  • Visits to Oslo, Copenhagen, Helsinki, St. Petersburg, Tallin, Brussels and Amsterdam for insight trafficking of Eastern European women to fuel prostitution shocked the members of the Commission. The Commission was appalled at the liberal views these countries had regarding prostitution. The Commission argued the liberal view was “clearly wrong-headed and dangerous” and dismissed the liberal view in its entirety

 

What is the liberal view towards prostitution that shocked the Swedish Commission?

It is a view that there is a distinction between forced and voluntary prostitution and that people have the right to sell their bodies if they wished to do so.

From the investigation, the Commission recommended to:

  • Criminalize prostitutes and those purchasing their services

The rationale for the recommendation:

  • Prostitution is in conflict with equality between men and women
  • In other countries were a liberal view of prostitution is accepted, it has increased
  • The social costs of prostitution are damaging

 

How was the Commission’s report received?

Very few organizations supported the report and recommendation. Instead, individuals found themselves either:

  • Supporting full criminalization of prostitutes and purchasers
  • Supporting only the criminalization of the purchasers, or
  • Supporting no change in current legislation

Those who supported the criminalization of the purchasers argued that punishing prostitutes was old-fashioned moralism and represented the hypocritical morality of a patriarchal society. Professor Sven-Axel Mansson & colleagues played a large role in endorsing the criminalization of purchasers. He argued that if Sweden took the approach of criminalizing prostitutes it would align itself with some offensive regimes. However, by focusing on criminalizing the purchasers, Sweden would have a unique approach to addressing prostitution. Mansson and many others insisted that criminalizing the purchasers would make Sweden unique and that other countries would likely emulate the Swedish model.

Ultimately, the most powerful and compelling argument for criminalizing the purchasers was the insistence that prostitution degrades women and is a form of violence against women. Something that cannot be tolerated in a society that promotes equality between men and women.

In addition to the appeal of enacting unique legislation and the equality and violence arguments regarding prostitution, there was also an element of  “fearing the foreign” that came into play. The Commission found that there was a growing number of Eastern European prostitutes entering Western Europe and the notion that this influx of foreign prostitutes into Sweden may increase the risk of infection also entered into the public debate. But it was not only the notion of increased risk of infection that entered people’s minds. Sweden was regarded as a social and economic success at the time and therefore Swedes felt a justifiable sense of “national pride and superiority”. Not only did Swedes enjoy a high standard of living, security and health, women in Sweden had also achieved a higher degree of equality than anywhere else in the world. Therefore, the potential of foreign threat and influence on Swedish national identity and values (no matter how irrational and exaggerated) were not something to be taken lightly.

Interestingly, the liberal view that prostitution was a voluntary choice and was not a form of violence and oppression was disregarded. Although this view was quite prevalent in many Western European countries, there was no support for liberal arguments and practices from the political parties at the time.

 

The outcome

In the end, a government proposal to criminalize purchasers of sexual services was incorporated into a package of measures dealing with violence against women (Kvinnofrid ­– Women’s Peace – Regerings proposition, 1997/1998). Following a National Legislative Assembly (Riksdag) debate, which outlined many of the points outlined above, there was a 2:1 in favour of the government’s proposal.

Although the strength and solidarity of Swedish feminists played a critical role in the passing of criminalizing the demand legislation, it is important to note that the feminist movement had its roots in a culture that was decidedly anti-liberal. This was (and is) in stark contrast with feminists in the UK, other Western European countries and North America. Sweden’s sense of national pride and cultural identity as a leader in social, economic, gender equality and health care policies, in addition to an underlying fear of foreign threat and influence of liberal ideologies, also played a crucial role in the passing of criminalizing the demand legislation.

As such, Swedish continues to be a leader in gender equality policies, where it is accepted that gender equality will remain unattainable as long as men buy, sell and exploit women and children by prostituting them. Moreover, it is also accepted that if men did not regard it as their self-evident right to buy and sexually exploit women and children, prostitution and trafficking in human being for sexual purposes would not exist. Therefore, countries around the world will continue to look to Sweden for policies on how to effectively address gender equality, prostitution, human trafficking, and violence against women and children.

Prostitution and trafficking of humans – What has Sweden done?

In Sweden, prostitution is regarded as a form of exploitation towards women and children that is not only harmful to the individual prostituted woman or child, but also to society at large.

The Swedish Government has given combating prostitution and human trafficking for sexual purposes top priority. Sweden has legislation that rest of the world looks to for combating prostitution and human trafficking for sexual purposes. It is important to realize that his legislation was possible because it was adopted under the objective of achieving equality between men and women.

The Swedish Government purports that gender equality will remain unattainable as long as men buy, sell and exploit women and children by prostituting them. (Swedish Ministry of Industry, Employment and Communications, April 2005). The Swedish Government stands by the notion that prostitution is a gender specific phenomenon, where the majority of victims are overwhelmingly women and young girls, while the perpetrators are invariably men. It is stated in the Swedish Ministry of Industry, Employment and Communications, April 2005 correspondence that: If men did not regard it as their self-evident right to buy and sexually exploit women and children, prostitution and trafficking in human beings for sexual purposes would not exist. The link between human trafficking for sexual purposes and prostitution is also clearly enunciated by the Swedish Government where it is stated that: International trafficking in human beings could not flourish but for the existence of local prostitution markets where men are willing and able to buy and sell women and children for sexual exploitation.

Since January 1, 1999, purchasing, or attempting to purchase, sexual services (in Sweden) is a criminal offence, punishable by fines or up to six months imprisonment. The women and children who are victims or prostitution and trafficking do not risk any legal repercussions.

Swedish Penal Code, Chapter 6, Section 11

A person who, in other cases that previously stated in this chapter, obtains a casual sexual relation in exchange for payment shall be sentence for the purchase of a sexual service to a fine or imprisonment for at most six months.

That which is stated in the first section also applies if the payment has been promised or made by someone else.

We will continue to examine how this legislation was passed in Sweden…did the women’s rights movement play a role in making this legislation possible or where there other factors that came into play? Stay tuned…

The Many Different Views of Prostitution

What are your views on prostitution? What a loaded question! Most people don’t know where to start. The many different views of prostitution across Canada are compiled in a Government of Canada report entitled: The Challenge of Change: A Study of Canada’s Criminal Prostitution Laws, 2006. Here we highlight and address some of the major points of view conveyed in the report.

Silhouetted against the evening sunset, a feminine figure dressed in provocative clothing attracts lustful glances while waiting on a street corner. The stereotypical street prostitute – surprisingly, they only account for a small percentage of prostitutes (5-20%) in Canada. The rest are “hidden” in escort agencies, massage parlors, strip clubs, or operating from apartments, condos, and homes in different communities.

Street prostitutes are often the most vulnerable, not only in terms of facing various hardships such as poverty, homelessness, and addictions, but they are also the ones most likely to be criminalized. This is due to their lifestyle and that they are visible to law enforcement officials. These known facts prompt individuals to advocate for decriminalizing the operation of bawdy houses. They make the case that bringing prostitution indoors is safer since they can hire security personnel and screen clients.

Hear no harm + See no harm = Safe?  Does not the majority of domestic violence and rape occur indoors? Will consumers concerned about their own anonymity and who are eager for sex disclose information truthfully to a bawdy house manager? Would an establishment attract customers if they knew they were being recorded on closed circuit TV or watched by a “security guard”? To our knowledge, there is no research in Canada that suggests indoor prostitution is safer and this is reinforced by what is conveyed in The Challenge of Change: A Study of Canada’s Criminal Prostitution Laws.

The Challenge of Change: A Study of Canada’s Criminal Prostitution Laws specifically makes the case that it is focusing on adult prostitution. Yet it reports that prostitutes’ first experience with selling sex is between 14 – 18 years of age in Canada. Aside from age what is the difference between a child prostitute versus an adult prostitute? All life is valuable. Dividing prostitution based on age only serves to confuse the issue of prostitution with the concepts of consent and free will.

Not surprisingly, the majority of the subcommittee that formulated The Challenge of Change: A Study of Canada’s Criminal Prostitution Laws report supported the view that “sexual activities between consenting adults that do not harm others (whether or not payment is involved) should not be prohibited”. They consider prostitutes, 18 years or older, consenting adults. Adult prostitutes know the ramifications and consequences of their actions, they have free will, they chose to sell their bodies as merchandise and it should be allowed so long as they do not harm others.

Regrettably, they do not understand what human sustainability is.  Human sustainability is not placing more value on one life versus another. All life is valuable – not just our own but others as well.

  • If individuals entered prostitution underage and continue to sell sex into adulthood, is their consent predicated on free will?
  • If an individual is destitute or addicted and desperate for money, is their consent predicated on free will?
  • There are many research studies citing that anywhere from 89-95% of prostitutes urgently want to escape from prostitution. If this is the case, how can we possibly view prostitution as just a mere exchange of sexual services between consenting adults?
  • Is consent predicated on free will the same as giving in?
  •  If prostitutes have expressed a desire to escape from their plight how can we deny their plea for help?
  • Now that you know that one of the ‘consenting’ adults wants desperately to escape from prostitution can you still turn away?

Prostitution is degrading and dehumanizing. This degradation and dehumanization transcends age, gender, ethnicity, religious beliefs, etc… The greatest gift we can give individuals who have fallen victim to prostitution is their freedom. To do so is to break down the stigma of prostitution, cast aside the notions that continue to fuel the stigma, and begin to see prostitution in a different light.

Prostitution in Canada

This contents below provides a general view of Prostitution in Canada and what Canadians are faced with at this present time. More details regarding the Prostitution laws, the constitutional challenge of the laws and other information regarding prostitution, sex trafficking and sex exploitation can be found in the Resources section.

Prostitution is not illegal in Canada.

However, specific activities related to prostitution are illegal.

Although this is a somewhat confusing way to curtail prostitution, it is the Government’s response to preventing the exploitation of those engaging in prostitution and to protect members of the community who are not involved in prostitution.

As such, the Criminal Code has three provisions that deem three prostitution-related activities to be illegal. The three prostitution-related activities that are illegal in Canada are:

a) Operating a common bawdy house (Section 210)

What is a common bawdy house?

It is a place that is kept, occupied or resorted to by one or more persons for the purposes of prostitution or the practices of acts of indecency.

This means that if an individual or individuals establishes a place for the purposes of prostitution or acts of indecency, then the established place fits under the definition of a common bawdy house.

The Constitutional Challenge of Section 210

This provision was constitutional challenged by three sex worker advocates. They argued that performing the act of prostitution is safer indoors versus on the streets. The court that heard the constitutional challenge sided with those who brought forth the constitutional challenge.

At this present time, Section 210 is still in effect because it is pending review from the Supreme Court of Canada. However, if the Supreme Court of Canada decides to strike down/eliminate Section 210, this would mean that the operation of a common bawdy house for prostitution is legal in Canada.

Therefore, any individual or individual(s) can establish a place, wherever they see fit, for the purposes of selling sex. No community will be immune to the existence of a common bawdy house in full operation.

b) Living off the avails of prostitution (Section 212)

Surely I can live off the avails of my employment?

Yes, this is true. If you are a prostitute, you can live off the money that you have earned prostituting. This provision in the Criminal Code was specifically created to protect prostitutes from being exploited by Pimps, Johns, and Madams. Therefore, this provision specifies that a person (or persons) cannot live on the earnings of another individual who is a prostitute.

The Constitutional Challenge of Section 212

This provision was constitutional challenged by the same three sex worker advocates mentioned above. They argued that this provision prevents them from hiring security personnel or assistants that would keep them safe while they are working as prostitutes. The court that heard the constitutional challenge sided with the three sex worker advocates.

It has been suggested by a court of appeal that this provision be rewritten to specify that: Everyone who lives on the avails of prostitution of another person “in circumstances of exploitation” is guilty of an indictable offence…

This puts the burden of proving exploitation, without a reasonable doubt, on the victim.

Pimps, Johns, Madams. These are individuals who are really good at what they do. They are masters of manipulation and will capitalize on the concepts of love, affection, friendship, security and trust to put one in a position of willing, voluntary and unconditional servitude. However, there are circumstances where Pimps, Johns, and Madams will go to the other extreme. If they cannot trick you into falling “in love” with them, they will threaten to kill you or your family.

In either case, when asked whether you have been exploited? One may tell a lie for protection sake – either a lie to protect your “friend” or a lie to protect your life or the lives of your family members.

c) Communicating for the purposes of prostitution (Section 213)

Isn’t communication important in every profession?

Yes, communication is key to every profession. This provision in the Criminal Code was created to prevent individuals from engaging in sexually explicit chat and sexual displays in public areas. It was put in place to protect innocent, unsuspecting, common individuals, such as children, from being exposed to sexually explicit content and the sale and purchase of sex while walking to school, on the bus, outside a shopping centre, in a restaurant, in the grocery store, etc…

Moreover, it was also put into place to prevent social nuisance. It could be said that most individuals prefer not to be exposed to sexually explicit content while going about their everyday routine. Therefore, it could be argued that this provision protects everyone’s right to respect and dignity.

The Constitutional Challenge of Section 213

The same three sex worker advocates challenged this provision by arguing that they need to be able to communicate with potential clients, in public, as a method of screening those who may be potentially dangerous. The court ruled in their favour.

At this present time, the court of appeal overturned the ruling. Therefore, this provision is still in effect. However, it is unknown as to whether there will be an appeal from the three sex worker advocates to contest the ruling of the appeal.