If people point to some prostitutes as victims they should realize, as the judges did, that the very laws in place were much of the cause of that. - Terri-Jean Bedford
On December 20th, the Canadian Supreme Court ruled on the government’s attempt to block the Himel decision (which struck down Canada’s prostitution laws on September 28th, 2010). The one-line version: “The prohibitions at issue…prevent people engaged in a risky – but legal – activity from taking steps to protect themselves from the risk.” If you want more detail, here’s the 705-word version, and here’s the whole thing (almost 20,000 words). The good news is, the court agreed with sex worker rights activists that the chief danger of sex work is not intrinsic to it, but rather results from the laws imposed upon it. The bad news is, the court suspended its decision for a year to give the government time to write new laws, and there is nothing in it to prevent the imposition of American-style criminalization:
…the Supreme Court’s decision doesn’t touch on the principle of sexual autonomy. Rather, it cleaves to a tighter, narrower logic…The central metaphor in Bedford is, perhaps oddly, bicycling. It would be wrong for Canada to allow citizens to ride bicycles, but forbid them to wear helmets. If a law makes a legal activity more dangerous, it is suspect…sex work is a legal activity, but related prohibitions made it less safe, so the Supreme Court struck down those prohibitions…[but] said nothing about whether sex work itself should be legal…if Parliament introduces new laws that directly criminalize sex work…the logic of Bedford will have very little to add to the next legal fight about prostitution…
Were this the United States, you can bet the legislature’s immediate response would be criminalization. However, it’s a little different in Canada; though some politicians have been huffing and puffing about the decision every sane person knew was coming for months now, Canada has since the late 1960s maintained a strong tradition (well, much stronger than that of the US, anyhow) that “the state has no place in the bedrooms of the nation.” In 1988, the historic Morgentaler decision included the statement “[T]he basic theory underlying the Charter [of Rights and Freedoms is] that the state will respect choices made by individuals and, to the greatest extent possible, will avoid subordinating those choices to any one conception of the good life.” That would seem a strong argument against criminalization, but…
…as with Morgentaler, as with the Chaoulli medicare case in 2005, the court has not presumed to judge the purposes the legislature had in mind. Whether the state may restrict abortion, or establish a public health-care monopoly, or regulate prostitution are all subjects on which the court has expressly declined to intervene. All it has insisted in each case is that, in the pursuit of these objectives, the state may not actually kill people, or put their safety at risk…
On the other hand, the government has heavily invested its prohibitionist case in neofeminist rhetoric, and recently adopted the Swedish model as its official position; several MPs have released long-winded “explanations” of the “fact” that women are permanent victims who shouldn’t be allowed to choose sex work. There is little likelihood that a system proven to increase violence and stigmatization of sex workers would pass muster under Bedford, yet at the same time it would be rather embarrassing for the government to push for the direct criminalization of sex workers after proclaiming us too weak to avoid being controlled by morally-superior clients and “pimps”.
So at this point, it’s difficult to predict what might happen next. Reactions are all over the map; while sex worker activists hail the decision as a victory and prohibitionists either moan that it’s a disaster or bizarrely misinterpret the decision as reinforcement of their catechism, the media is generally being cautious: The Ottawa Citizen went so far as to print both Jimmy Carter’s (yes, THAT Jimmy Carter) clueless and ignorant plea for the Swedish model, then a debunking of both the plea and the model three days later. And while it isn’t at all surprising to see pro-decrim articles in Reason or Reality Check, it’s definitely not the usual fare at the Washington Post:
…In the mainstream media, prostitution is almost always conflated with sex trafficking. One only has to look at Nicholas Kristof’s pieces in The New York Times, for example…But…the…focus on trafficking has not led to policies that keep sex workers safe and healthy. Especially in the United States, the equation…has led to more spending on law enforcement…If policymakers want to make sex workers’ lives safer, there are many organizations they can learn from. Sex workers advocate for their rights through groups like the Global Network of Sex Work Projects…the St. James Infirmary… Stella in Montreal, the PACE Society in Vancouver, and Maggie’s in Toronto. These organizations are effective because they view sex work as work…Every year on Dec. 17, sex worker rights advocates worldwide host events to…underscore the harm of anti-prostitution policies…the Canadian Supreme Court has taken an important step towards abolishing the legal conditions that create this violence. We should not roll back the clock.
Given that the WaPo recently hired libertarian journalist Radley Balko and several years ago published the first major (though sadly isolated) American debunking of “sex trafficking” mythology, perhaps the wind is shifting away from prohibition there as it is at the UN and the vast majority of human rights organizations. But just as is the case in Canada, only time will tell.
