Canada’s Supreme Court Weighs In

Dianne Post, in her latest piece, claims that I (and apparently Maggie McNeill) have “deliberately misread” her words. I have misread nothing Post has written. Instead, I criticized her essentialist assumptions about what prostitution “is about” and her use of terribly flawed sources to try to support her grandiose claims about prostitution.

I will not rehearse here the many criticisms I made of her assumptions and opinions in my two previous essays, except to say that her equation of prostitution with slavery is utter nonsense. And it is quite clear that Post has a deeply moral objection to prostitution, no different than people who have a moral antipathy to other consensual activities, like homosexuality and abortion. No amount of social science evidence or testimony from people who engage in sex work will alter Post’s personal opinions. And they are just that: personal opinions grounded in her particular definition of unacceptable behavior.

A few days ago the Supreme Court of Canada struck a blow against such narrow moralizing. It ruled unanimously (9-0) that Canada’s three prostitution laws are unconstitutional. The three laws pertain to “communicating in public” for the purpose of prostitution, owning and operating a “bawdy house” (brothel), and “living on the avails” of someone else’s prostitution (a pimp, partner, manager, boyfriend, etc.). The Supreme Court upheld a lower court’s ruling that all three provisions violated the country’s Charter of Rights. The court declared that these laws deprive prostitutes of “security of the person in a manner that is not in accordance with the principles of fundamental justice.” Because criminalization forces them to operate in the shadows, “the prohibitions all heighten the risks the applicants face in prostitution … by imposing dangerous conditions” on them. The ban on communicating for the purpose of prostitution endangers street prostitutes especially, because they are prevented “from screening potential clients for intoxication and propensity to violence”; the prohibition on brothels prevents prostitutes “from working in safer fixed indoor locations”; and the ban on “living on the avails” is overly broad, failing to “distinguish between those who exploit prostitutes and those who could increase the safety and security of prostitutes, for example, legitimate drivers, managers, or bodyguards.”

The ruling is entirely consistent with the harm-reduction paradigm. It implies that antiquated moral attitudes should be irrelevant in prostitution law, and that the law should be grounded instead in a nation’s commitment to defending human rights and extending protections to all citizens.

Also from this issue

Lead Essay

  • Sex work is ubiquitous. Where a substantial demand exists, some people will inevitably try to meet that demand for a price. Retired call girl and madam Maggie McNeill reviews the various legal regimes that have been set up to regulate and/or prohibit sex work. She concludes that many approaches, particularly the most restrictive ones, increase the likelihood of harm to all participants. They tend to infantalize women and invest law enforcement with arbitrary and dangerous powers. She argues that the best approach is a regime of simple legalization, without licensing or heavy restrictions.

Response Essays

  • Prof. Ronald Weitzer argues that prostitution should be treated as a legal commercial transaction. He finds that much of the conventional wisdom on the sex trade is the result of generalizing from experience under legal regimes where it is criminalized. He argues that in a legally tolerant regime, many of the problems we observe today would vanish. He argues for a set of “best practices” that would entail some government regulation of sex work, including subjecting business owners to background checks and licensing, zoning regulations, and restrictions on advertising. These measures would make decriminalization politically palatable and protect against a possible backlash. He also finds, contrary to McNeill’s claim, that no country has fully deregulated sex work.

  • Dianne Post argues that prostitution is a form of exploitation, and that the only proper response is to abolish it. Prostitution, she argues, only exists because of material inequalities. Worse, it tends strongly to produce further inequalities – material, social, and political in nature. Prostitution traps women in economic dependency on men, and it encourages men to view women merely as commodities. Following this strong normative case against prostitution, Post looks at the empirical evidence, where she concludes that experiments with legalization have all been failures. She praises the “Nordic Model” approach to sex work, in which in which sex workers’ clients are prosecuted, rather than the women involved in prostitution.

  • Steven Wagner argues that the large majority of prostitutes are not workers at all, because they are not acting voluntarily: they are enslaved. The personal experiences of Ms. McNeill notwithstanding, many others have suffered horribly in prostitution, and even left-leaning governments like that of France under the socialists have justifiably outlawed the sex trade. Wagner likewise prefers the Swedish approach, in which prostitutes are not treated as criminals, but those who attempt to buy sex are.