Prostitution and feminism have a long, complicated history together, discussed in relevant detail by Carol Leigh here. As Canada legalized brothels on March 26, in a suit brought by the Sex Professionals of Canada organization, I thought this would be a good opportunity to look at some other laws around the globe that currently govern what we often call the world’s oldest profession. Is it better to keep prostitution illegal, decriminalize in order to provide an easier way out for those trapped or victimized by it, outright legalize it without much thought to how prostitutes should be able to operate or regulate it like any other business? Canada’s recent decision corrects basic legalization and moves closer to regulating prostitution in a way that treats it like an actual business, with precautions taken for the safety of the workers. Prostitution was not illegal in Canada before this ruling but various aspects of performing this type of sex work were. The Ontario Court of Appeals declared unconstitutional two laws pertaining to prostitution but upheld a third one that was also challenged. Care2 writes:
First law to go: the law against allowing prostitutes to work together under one roof (referred to as a “common bawdy house” in the criminal code), meaning that prostitutes are now able to set up their own places of business where others will also work at the same time, giving a far larger expanse of safety. In making their ruling, the judges stated that “The record is clear that the safest way to sell sex is for a prostitute to work indoors, in a location under her control.”The second law to go was the law against living off the avails of prostitution. Eliminating this law means that not only can prostitutes now use the money they earn to hire staff such as accountants or schedulers, they can also hire security guards, thus vastly expanding their own safety. The Ontario Supreme Court agreed with a lower court ruling that the two laws were unconstitutional as they pose an undue risk to prostitutes.
Whether women’s rights activists should cheer or jeer for this law is a matter of who you pose the question to. An article in the Montreal Gazette states that feminists should be pleased with the law however, organizations like the Coalition Against the Trafficking of Women would likely see it through a different lens.
The Canadian judges’ decision makes perfect sense in terms of insuring that sex workers are safer when they engage in their business. With laws that just keep prostitution legal but do not allow prostitutes to take reasonable steps toward securing an environment in which they would be less likely to be victimized, by a client wishing them harm for example, their rights are violated and a certain moral line is drawn. More specifically, by saying that prostitution is alright under the law but not endowed with privileges that apply to other work, it marginalized sex workers to operate in potential real danger and made a call on what counts as proper work under the protection of the law. In that respect prostitutes were already in a vulnerable profession but the State penalized them again by not protecting them.
The acknowledgement that prostitution actually exists as a viable or only form of employment for some is progressive. Pushing prostitution to the ethical hinterland where all involved with it are criminalized is terribly outdated. While there is a lot to be said about the larger, gendered, unequal world in which especially female prostitutes operate, and statistics which point to most prostitutes being abused early in life, clinging to rigid views on the issue certainly doesn’t help the women involved. Empowered sex worker groups, like the one in this Canadian case, have been ringing the alarm bells for years about the hypocrisy of prostitution laws. In recent decades, various countries around the world have implemented laws that treat prostitution not as a one-sided moral issue, but rather something that we should acknowledge and deal with. Mostly, selling sex for money is still mired in outdated views about women’s sexuality and rigid views on sex in general, even in more open liberal societies like New Zealand. While prostitution is still not legal in most parts of the world, in places where it is, the way that it is regulated says a lot about how that society views the exchange of money for sexual services.
There are essentially four approaches to prostitution when we look at laws around the world. The first criminalizes prostitution, everything and everyone involved with it; the second decriminalizes it for the prostitute and puts all the responsibility for seeking an illegal service on the client; the third makes prostitution itself legal but everything associated it with illegal, lastly the fourth makes prostitution legal and manages it much like a business would be regulated. On the extreme ends are the models from places like the US where prostitution is illegal everywhere except for certain places in Nevada and on the other would be Canada with its new law, Germany or New Zealand. Not all regulation is created equal though and in Greece’s case for example it seems that the laws which require constant medical check-ups are more targeted towards public health than to protecting or helping the workers in any significant way. Regulation of legal prostitution may not condone it but it does provide freedom for those who really wish to engage in that sort of work to be treated as other workers, within specific guidelines. This way, those who oppose it can decide to live in an area that does not visibly allow it and those wishing to partake in the business can relocate to a place that would be friendlier to their services for example. In addition, since by virtue of regulation it becomes a labor sector, it is protected by labor laws and thus provides certain protections not at all guaranteed in a system which keeps sex worker activities wholly illegal. Over-regulation, one that puts the entire burden on the sex worker as is the case in Greece, may potentially dissuade from prostitution by requiring cumbersome check-ins but keeps it legal, tolerating it without directly encouraging it.
The decriminalization of selling sex but not of buying sex, the current Scandinavian model, comes from a concern for the victims of sex work. It believes that selling sex is never an optimal career choice and penalizes those who would take advantage of people in a very vulnerable profession without judging those who engage in it for whatever reason. Making everything around sex services criminal, but not the act itself, as was the case in Canada before the ruling, has the effect of making those who are stuck in it unwillingly, or who have been victimized by it to essentially fend for themselves. This is the case still in the UK where it appears that the hope is to have the danger of the profession serve as a deterrent. On the surface this model passes no apparent judgment on the morality of selling sex but as I mention above, it indirectly penalizes anyone who would take part in selling sex by not allowing reasonable protection, by way of hiring associates who could provide for some safety. In Canada the legality of sex for money but not other services which could be associated with it failed the constitutional test because it drew a line between seeming liberal on the topic of prostitution without taking adequate responsibility for the very people that it was so nonjudgmental towards.
The sooner that society at large realizes the nuances in prostitution the better the prospects for those in it will be. Entirely criminalizing the sale of sex, as is the case overwhelmingly around the world, certainly looks like the best stance for both fighting the victimization of prostitutes and penalizing their clients. Unfortunately that view takes a harsh moral stance, one that more often than not is not helpful especially towards the real victims of prostitution. Until we empower and adequately protect sex workers we are not dealing with the real issue, one with a range of complexities. Even if we ourselves see prostitution in black and white, sex worker movements and the current unacceptable situation of dehumanizing sex-trafficking should force us to re-think our laws. The answer to prostitution in the modern world is unlikely to be simple but making prostitutes, trafficked or not, underage or not, willingly participating or not into criminals is simply archaic and anachronistic. Let’s look at the facts, hear the voices of those who sell sex, think about human rights and the goals of the women’s movement in order to legislate with compassion, fairness and accountability.