Prepared for the Women’s Coalition for the Abolition of Prostitution
by Janine Benedet, LLB, LLM, SJD
Associate Professor of Law, UBC
Of the bars of Ontario and British Columbia
March 23, 2014
On December 20, 2013, the Supreme Court of Canada released its decision in the case of Canada (Attorney General) v. Bedford.[i] In this decision, the Supreme Court declared three provisions of the Criminal Code of Canada that criminalize various aspects of the prostitution industry to violate s. 7 of the Canadian Charter of Rights and Freedoms. The Supreme Court declared these three provisions, which criminalize keeping a common bawdy house, or being an inmate or a found-in of a common bawdy house, that is kept for the purposes of prostitution (s. 210); living on the avails of prostitution (s. 212(1)(j) and communicating in a public place for the purposes of prostitution (s. 213) to be of no force or effect. However, the Supreme Court of Canada suspended its declaration of invalidity to give Parliament a chance to respond to the decision and pass new laws consistent with the Charter.
The Women’s Coalition for the Abolition of Prostitution intervened in the Ontario Court of Appeal and the Supreme Court of Canada in Bedford.[ii] The Coalition’s members are women’s groups and federations that share the conviction that the buying and selling of women’s bodies in prostitution is a global practice of sexual exploitation and male violence against women that normalizes the subordination of women in a sexualized form. It exploits and compounds the systemic inequality of women based on sex, race, poverty, age, immigration status, disability and Aboriginality.
The member organizations of the Coalition are:
Canadian Association of Sexual Assault Centres
Native Women’s Association of Canada
Canadian Association of Elizabeth Fry Societies
Action Ontarienne Contre la Violence Faite aux Femmes
La Concertation des Luttes contre l’Exploitation Sexuelle (CLES)
Le Regroupement Québécois des Centres d’Aides et de Lutte contre les Agressions à
Caractère Sexuel (CALACS) and
Vancouver Rape Relief Society.
The Women’s Coalition members work from coast to coast providing front line crisis and anti-violence services and supports, representation and advocacy for women and girls who are or have been prostituted, who have been criminalized and incarcerated in relation to prostitution, who are trying to escape prostitution, who are targeted for or are at risk of being prostituted, and who have been subject to male violence, including prostitution. Their members, decision-making bodies and clients include prostituted women.
The Women’s Coalition members conduct and publish research informed by the experience and first-hand accounts of women in prostitution, including research on the unsolved cases of hundreds of missing and murdered Aboriginal women. The Women’s Coalition members develop educational programs and initiatives to prevent entry into prostitution and to address the poverty that drives women to enter prostitution.
Before the Ontario Court of Appeal and the Supreme Court of Canada, the Women’s Coalition argued that it was necessary to consider the impact of the challenged laws on prostituted persons, who are mostly women, separately from their impact on johns and profiteers, who are mostly men. We also argued that it is artificial to separate child prostitution from adult prostitution; prostitution in Canada from the global prostitution industry; the male demand for prostitution from the sex trafficking it encourages, and the violence inflicted along with prostitution from the violence that is inherent in the act of prostitution. We noted that the overrepresentation of Aboriginal women and women of colour in prostitution is not a reflection of personal economic choices. Rather, the effects of sexualized racism and colonialism are reflected in and reinforced by the prostitution industry and the male demand for prostitution.
These pervasive realities of the multi-billion dollar global prostitution industry lead the Women’s Coalition members to support prostitution laws and policies that are consistent with substantive equality for women and that recognize the multiple inequalities of prostitution. In our view, what has come to be known as the “Nordic Model” of prostitution law is the only legal model that is rooted in sex equality principles and is consistent with the Charter and international rights of women.
As a first contribution to the process of law reform, this document outlines what the Nordic Model might look like in the current Canadian legal and policy context and responds to some common concerns about that model. We urge legislators and policy-makers from all parties and all levels of government to support such a model for Canada.
The Nordic Model of Prostitution Law
In 1999, after initially having decriminalized prostitution, Sweden enacted its Sex Purchase Law. This law made it a criminal offence to purchase sexual services from another person. The law also prohibits profiting from another person’s prostitution and keeping a brothel.[iii] The law enjoys considerable public support in Sweden, and has been accompanied by both public education and social supports for women exiting prostitution. An official review of the law confirmed that, since its enactment, street prostitution has dropped dramatically and that Sweden has become an unattractive destination for traffickers of women from other countries.[iv] The Report notes that because of the growth of the internet in the decade since the law was enacted, it is difficult to quantify with precision all forms of less visible prostitution, but there is no evidence of an increase in “off-street” prostitution.
Versions of this law have now been passed in Norway and Iceland as well, collectively attracting the label “Nordic model”.[v] In December 2013, the French National Assembly passed at first reading by a large margin a bill adopting such a model of prostitution law in France.[vi] In February 2014, the European Parliament also voted in favour of the Nordic model approach to prostitution law and policy by a large majority.[vii]
Why the Nordic Model? – Prostitution and Inequality
Prostituting women does not make them equal. For the most part, prostitution consigns women to poverty; psychological and physical trauma; verbal, physical and sexual abuse; and high rates of homicide. Some people argue that these harms are not inherent to prostitution, and that the goal should be to reduce these harms while continuing to provide johns with access to women’s bodies. However, this ignores the composition of, and constraints on, the people who make up the vast majority of prostituted persons.
Our legal and public policy focus needs to be on the large numbers of women and youth who enter prostitution, often as teenagers, in response to poverty, coercion and deception, violence and abuse in the home, and other constraints. They choose prostitution, to the extent they choose it at all, from a very limited range of choices, and most would exit if they had real alternatives and supports. In many cases, the question we should be asking is not whether they chose prostitution but how, realistically, they could have chosen anything else. It is more accurate to say that the system of prostitution chose them to meet male demand.
Some people who accept that these constraints and inequalities are very real nonetheless think that prostitution must be decriminalized because it is inevitable. It is important to remember that there are many abusive and discriminatory practices that have been around for a long time. That does not make those behaviours, including the buying of sex, acceptable or harmless, nor does it mean that Canada should normalize and embrace them. It means that it is time for new and innovative approaches.
Finally, an analysis of prostitution as inequality situates the responsibility for the harm of prostitution in those who create and profit from the demand, not those who are exploited by it. As such, the criminalization of prostituted persons is wholly incompatible with recognition of the exploitative nature of the prostitution industry.
The Women’s Coalition emphasizes that prostitution is both a practice of sex discrimination against women in prostitution, and also reinforces the inequality of all women. Prostitution reflects a hierarchy based on sex in which women are expected to satisfy men sexually on demand, with money and other forms of coercive power substituting for consent. Women cannot achieve social and political equality when prostitution is accepted as “women’s work.”
Adapting the Nordic Model to Canada
In this section the Women’s Coalition considers the three components of the Nordic model and how they could be applied in the Canadian context.
The first component of the Nordic model is public education to discourage and de-normalize sex purchase and profiteering. Survey evidence has suggested that in countries where sex purchase is allowed, as many as 1 in 6 (Italy) to 1 in 8 (Sweden pre-1999) men buy women in prostitution.[viii] To help reduce these numbers, ongoing public education of boys and men is required. The goal of such education is to both advise people as to the state of the law, but also to expose the harms of prostitution that are driven by male demand. The women’s anti-violence movement should have a leading role to play in such education, building on its decades of experience in understanding and opposing all forms of violence against women.
Public education should acknowledge the racist and colonial aspects of the prostitution industry and make clear the particular abuse of Aboriginal women’s rights that occurs in prostitution, including the links between the prostitution of Aboriginal women and their disappearances and murders.
The federal government has a role to play in these educational initiatives and ought to commit resources to their delivery, whether directly or through funding provincial initiatives. All levels of government must work in concert toward the common purpose of discouraging the purchase of women and girls in prostitution.
A second component of the Nordic model is law reform that reflects an understanding of prostitution as a practice of sex inequality. In general terms, this includes laws that penalize those who buy or seek to buy access to prostitution (informally referred to as “johns”) and those who operate prostitution businesses or otherwise live parasitically on the earnings of prostituted persons (referred to here as “pimps and profiteers”).
As a starting point for considering what legal regime Canada should adopt, is it worth itemizing what prostitution laws remain in the Criminal Code after Bedford, and what would be absent from the law if no new provisions are enacted before the suspension of invalidity expires.
Remaining Laws Targeting the Demand: Johns or Buyers
The effect of the decision in Bedford would be to remove all legal restrictions on the purchase of sex from those 18 years of age or older. The decriminalization of purchasing prostitution would apply on the street as well as through escort services, massage parlours and other off-street venues.[ix] Street prostitution would remain subject to criminal sanction only if the prostitute or the john impedes traffic or otherwise causes a disturbance or nuisance.
In addition, if no new laws are introduced, it would not be a criminal offence to buy sex from a young person where the john believes that the youth is 18 years of age or older and has taken all reasonable steps to ascertain her age. Where a john knows that the prostituted person is under 18, purchasing or offering to purchase sex remains a criminal offence. This latter holding was not the subject of challenge in Bedford.
Remaining Laws Targeting Third Parties:
Brothel keepers, madams, profiteers, traffickers and pimps
As a result of Bedford, brothel keepers could establish prostitution businesses and pimps and profiteers would be able to profit from the prostitution of others who are 18 years of age or older.
Laws remain in the Criminal Code prohibiting the procuring of a person to become a prostitute, or controlling a prostitute for gain, in particular ss. 212(d),(g) and (h). Laws also remain prohibiting the trafficking of persons into prostitution. These provisions were not the subject of challenge in Bedford.
Adequacy of the Remaining Provisions
The remaining provisions are inadequate to address the violations of women’s rights to security and equality by the actions of johns and third party profiteers and pimps.
Although the procuring laws serve a useful function of penalizing those who assist in producing a supply of women to be prostituted, the remaining provisions are wholly inapplicable to pimping and profiteering that occurs after the woman is already prostituted. The point of recruitment is not the only moment at which exploitation takes place.
Some of the procuring provisions have already been targeted for constitutional challenge in litigation in British Columbia that was suspended pending the outcome in Bedford. The Supreme Court of Canada has recognized the public interest standing of these litigants and their litigation may be revived with respect to the remaining provisions.[x]
The trafficking offences, added to the Criminal Code in 2005, are also not sufficient to fill the gaps left by the striking down of the challenged offences. Trafficking laws apply only to traffickers, not buyers of trafficked women. After Bedford, it would be legal to purchase a trafficked woman in Canada. This is a serious deficiency in the trafficking laws that fails to recognize the role that demand plays in driving the trafficking of women in prostitution.
Even in their application to traffickers, the laws are insufficient. Rather than adopting the more contextual definition of trafficking found in the Palermo Protocol, to which Canada is a signatory,[xi] Canada’s laws can be read to require proof of coercion and a very high level of knowledge and intention on the part of the trafficker. The Palermo Protocol, by contrast, recognizes that trafficking occurs where the trafficker exploits of a condition of vulnerability of the trafficked person, capturing a broader range of situations of authority and power.
We recommend that the laws on procuring and trafficking be retained and that the definition of trafficking be amended to track more closely the language of the Palermo Protocol. At present, they are useful if limited tools to counteract the exploitation of women by third parties. However, in their current state, these laws are not adequate to respond to the harms of sex purchase and profiteering/pimping. Although the trafficking provision also extends to labour trafficking, the relationship between the demand for prostitution and sex trafficking should be emphasized. The failure of the application judge in Bedford to recognize these links was deeply problematic for the constitutional analysis that followed.
The trafficking, procuring, and new sex purchase laws discussed below, should be grouped together under the same Criminal Code heading of “Offences Against the Person.” Prostitution is not a victimless crime. We need to shift our thinking away from the false idea that prostitution is a mutual sexual interaction and toward the recognition that prostitution is an act of violence that exploits relationships of unequal power. Consent to otherwise unwanted sexual activity cannot be purchased.
New Provisions on Sex Purchase and Pimping
We recommend that new laws targeting the purchase of sex and pimping be enacted. These laws should be kept simple and sufficiently flexible to apply to the full spectrum of exploitative activities. In addition, the objectives of the new provisions must be carefully drafted and substantiated at the committee stage. These objectives must make clear that Parliament’s purpose in enacting such a law is to fulfil its constitutional commitments and international obligations with respect to achieving equality and combating violence against women.
The offence we propose is also a hybrid offence, allowing prosecutors the discretion to proceed by summary conviction or on indictment as the seriousness of the offence would dictate. The most important outcome of such an offence, in our view, is not lengthy jail sentences, but rather the public condemnation and deterrence that accompany a conviction. Therefore, the model law criminalizing the purchase of others in prostitution that we recommend does not have a mandatory minimum sentence attached to a conviction. It is our view that mandatory minimum sentences do not have the desired effect of bringing home the seriousness of the offence. They may actually decrease conviction rates and distort the accurate counting of criminal offences as offenders plead out to lesser offences or judges decline to convict. For example, we have seen few convictions under the youth prostitution provision (s. 212(4)) since the addition of the mandatory minimum sentence, and are concerned that mistake of age claims by defendants have increased.
We recommend that the remainder of s. 213 be repealed. Nuisance is not the primary harm of prostitution and it can be dealt with by other more general provisions. Singling out street prostitution for differential treatment suggests that it is the location where the prostitution takes place that is the source of the harm, rather than the buyers and pimps. In the alternative, if these remaining parts of s. 213 are to be retained, they should be amended to apply only to johns and not to women in street prostitution, who are disproportionately Aboriginal women, and who are profoundly vulnerable to the men who buy and sell them.
The Women’s Coalition rejects the claim that the criminalization of women is necessary to provide them with exit services. Jail is not a women’s centre or transition house. In no other context of violence against women do the police arrest the woman who is subjected to the violence in order to help her. Abused women are not arrested to get them away from their abuser. The police are not equipped to prove front-line support and advocacy to women in prostitution and they cannot expect women to report to police exploitation by johns and pimps if they are also subject to criminalization.
We have considered carefully whether a separate law should be retained for the prostitution of juveniles. We recognize that the young age of the victim is a significant aggravating feature of sex purchase and should be treated as such in sentencing. However, we also recognize that many adult women in prostitution entered prostitution as girls, and that the distinction has an aura of artificiality. In addition, even where the woman was first prostituted as an adult there are often many other inequalities that are exploited in prostitution, such as race, poverty and disability, in addition to sex inequality, that are also aggravating factors.
Nonetheless, while we would prefer a single law applicable to the purchase of all prostituted women and girls, we are not recommending repeal of s. 212(4) in this submission. However, it should be made clear that the sex purchase offence that we are recommending is an included offence within s. 212(4), such that where mistake of age arguments are advanced, conviction for the lesser included sex purchase offence is still possible and the accused is not acquitted outright.
On the question of pimping and profiteering, the Women’s Coalition is of the view that the offence of living on the avails of another’s prostitution had several advantages. It focused on those who live parasitically of the earnings of prostitutes, recognizing that such conduct is per se harmful and exploitative. Where women must give a portion of their earnings to another person, they need to service more johns, increasing the harms and risks to them. Such an individual also has an economic incentive to pressure the woman to remain in prostitution. The focus on profit, when combined with the evidentiary burden on the accused to point to evidence to the contrary that he was not living on the avails, reduced the likelihood that the prostituted woman would be required to testify.
The Supreme Court’s decision in Bedford, however, held that the law’s objective in combatting the exploitation of prostitutes was outweighed by the risk to women’s security from preventing them from paying drivers, bodyguards or receptionists. Given these conclusions, the living on the avails provision must be narrowed to survive a future constitutional challenge. The simplest way to do this would be to re-enact the offence but add a defence that would allow the accused to establish that he or she was not exploiting the person prostituted. This is similar to what the Ontario Court of Appeal proposed, but would treat the absence of exploitation as a defence to be established by the accused, thus reducing the reliance on prostituted women as witnesses. It might also be possible to qualify the offence to make clear that two prostituted women who pool their earnings or share an apartment do not commit an offence.
Therefore, on the question of sex purchase and pimping/profiteering, we recommend adoption of the following provisions, with the following objectives:
Whereas the Parliament of Canada continues to be gravely concerned about the incidence of sexual violence and exploitation in Canadian society and, in particular, the prevalence of sexual violence against women and children;
Whereas prostitution is a practice of sex inequality, committed overwhelmingly by men against women and children, and a practice of male sexual violence and sexual exploitation;
Whereas the prostitution industry disproportionately exploits and, thereby reinforces, the inequality of women and girls on the basis of sex, race, age, disability and poverty , and in particular of Aboriginal women and girls;
Whereas the Parliament of Canada is committed to ensuring the full protection and enjoyment of the rights guaranteed under the Charter, including the rights to security and equality, and prostitution is antithetical to those rights;
Whereas the demand for prostitution is inextricably linked with the national and international demand for human trafficking for sexual purposes;
Whereas the Parliament of Canada is committed to upholding Canada’s international obligations to prevent and punish trafficking in persons and to eliminate all forms of discrimination against women;
Whereas persons in prostitution must not be punished for their own exploitation, and buyers and profiteers are responsible for this violence and for creating the demand for sexual exploitation;
Whereas the Parliament of Canada is committed to opposing the commercialization of women’s bodies, and rejects the idea that women and children are commodities that can be bought, sold, and sexually exploited and does not want to inadvertently entrench a right to purchase or sell other human beings for sexual purposes;
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
Obtaining Sexual Services for Consideration
s. 212(5)[xii] Every person who, in any place, obtains or seeks to obtain for consideration the sexual services of another person is guilty of
(i) an indictable offence and liable to imprisonment for a term not exceeding two years; or
(ii) an offence punishable on summary conviction.
s. 212(6)(a) Every person who habitually profits from the prostitution of another person is guilty of
(i) an indictable offence and liable to imprisonment for a term not exceeding five years; or
(ii) an offence punishable on summary conviction.
(b) No person shall be convicted of an offence under s. 212(6)(a) where he establishes that the act of profiting did not exploit the prostituted person.
Social Supports for Women
The third component of the Nordic model requires a commitment to social supports for women that provide alternative sources of income other than prostitution. Such supports are designed to recognize the complex web of factors that target particular women for prostitution and keep them stuck in prostitution. This means comprehensive exit services that provide women in prostitution with health care, including women-only detox services; safe housing for themselves and their children; legal aid; education and job training; quality counselling services, and a guaranteed livable income. Prostituted women must be eligible for all existing compensation schemes designed to support victims of violence.
To recognize prostitution as a practice of sex inequality means going beyond exit services. Canada must also address the factors that push certain women and girls into prostitution, including poverty, racism, the effects of residential schools, inadequacies in the child welfare system and the glamorization of prostitution.
Given the federal system in Canada, responsibility for the delivery of many of these services will rest with the provincial governments. We believe it important that the Nordic model not stop at law reform on the federal level. In particular, if the federal government is committed to this model, it must coordinate and support the provinces in the delivery of such services. This aspect of the model promises substantial cost savings and health benefits, and is an important part of ensuring that the new laws survive future constitutional scrutiny. In addition, the federal government can help ensure that women exiting prostitution have access to criminal record suspensions (formally known as pardons) to help them secure employment and fully participate in society.
Responding to Criticisms
In the section that follows, we consider the effect of the Nordic model on women in prostitution and on women’s equality more generally.
The Nordic model does not harm women
Supporters of the legalization or decriminalization of prostitution have leveled various criticisms at the Nordic model of prostitution law and policy. Many of these arguments are based on the assumption that the prostitution of adult women ought to continue and should not be discouraged. Such arguments are not really claims that the Nordic Model has not been a success on its own terms, but rather take issue with the very premises on which this approach is based. Such arguments deny that prostitution is a practice of sex inequality and a form of violence against women which drives the demand for sex trafficking, instead characterizing it as unfairly stigmatized labour that is attractive to migrant workers, or as a consensual commercial contract. This fundamental schism as to what prostitution is and does means that many of the criticisms of the Nordic model are unresponsive to its actual terms and are better understood as disagreements in principle.
A few criticisms, however, are worth deconstructing and responding to, namely that the Nordic model does not eliminate prostitution and that the women who remain in prostitution are worse off under this model because there are fewer “good clients”; and that women must operate in a more underground fashion, thus increasing the risks of additional violence from johns and pimps because (i) they do not have adequate time to screen johns before getting in their cars and (ii) they are less visible to those who might monitor their security, for example by writing down a licence plate number.
The argument that reducing the demand for prostitution removes the “good clients” from the market invites several responses. First, it implicitly acknowledges that the Nordic model does reduce the demand for prostitution. This demand is inherently harmful to women. Decreasing the amount of prostitution that takes place decreases harm to women.
Second, this argument also fails to recognize that the supply of prostituted girls and women is targeted and constructed to meet the demand. Prostitution tourism is an example of this relationship. Where demand decreases, supply also eventually decreases, and vice versa. There is no evidence that those who persist in buying sex after criminalization are the “worst” johns, as if this can be predicted in advance. In any event, these “worst” johns were already in the market in a decriminalized regime. The most disadvantaged women have the least power to refuse the most brutal and degrading forms of prostitution, whether legal or illegal, indoor or outdoor. What is important is that real alternatives for women are available in the Swedish approach, so that women do not need to continue to compete for a shrinking number of buyers but can instead access sources of income other than prostitution.
Third, the argument that some prostitution will still remain under this model holds the Nordic model to a standard not imposed on legal and policy regimes targeting other forms of sexual exploitation and abuse. Despite the legal and public policy measures criminalizing wife assault or battering of women in spousal relationships, such violence has not been eradicated. This does not mean that such laws should be repealed and spousal violence normalized and destigmatized.
The argument that women who continue to be prostituted face increased risk under a Nordic model because prostitution is “underground” also ignores several key features of this model. First, the fact that less prostitution takes place means that there is less risk and women’s safety overall in enhanced. This tends to be completely overlooked in the balance by proponents of legalized prostitution. Getting women out of prostitution (and not merely replacing them with other women) is the single most important method of increasing women’s safety.
A similar point can be made with respect to HIV transmission. As Professor Catharine MacKinnon has noted, “when prostitution is understood as commercial sexual exploitation, resulting cases of HIV/AIDS are a symptom, the cause of which is prostitution itself: sex with thousands of men a year under conditions that you cannot realistically control. The sex work perspective would protect the buyers from the women so they can keep using them without getting sick, rather than protecting the women from the buyers who are making them lethally ill.”[xiii] Asserting that legalization of prostitution will mean that women can negotiate for condom use ignores the fact that in all legal regimes, men pay more for sex without a condom.
Denial that the decriminalization of prostitution increases male demand, or that criminalization of johns reduces it, defies the evidence of patterns of sex purchase in other countries. The legalization of brothels in Germany has attracted busloads of prostitution tourists seeking to access the (mostly non-German) women in them. The same is true for the brothel zones in Spain near the Spanish-French border, which cater to men coming from France, where laws are more restrictive. Legalization or decriminalization of sex purchase clearly attracts both male demand and the supply of women to meet it. We can expect the same in Canada, particularly along the Canada-US border, if the laws struck down in Bedford are not replaced.
When women do not have to be concerned about their own arrest, they can report acts of violence to police more easily. In addition, the fact that their buyers are breaking the law may give them some leverage to deter verbal abuse and other degrading treatment. The Women’s Coalition members know that women cannot screen men for violence in advance and do not have the responsibility for preventing male violence. Most women who are abused suffer that abuse at the hands of men they know and trust, in other words men that they have screened for months or years. Johns want women to get into cars quickly, or to meet through less visible methods, such as the internet, even under decriminalized regimes. Johns try to keep out of sight not simply to avoid arrest, but to avoid being seen by spouses, family members and others who might recognize them.
The Nordic model does not criminalized prostituted persons. Women in prostitution can take whatever self-help methods they choose, whether alone or in combination with other women, without fear of arrest. Regardless of the legal regime in place, most prostituted women also prefer that their involvement in prostitution is not visible to others. Nonetheless, prostitution can never be so underground that buyers cannot find it. This means that police and social service providers can find it as well, regardless of the legal regime in place. The Nordic model does decrease the public display of advertising for prostitution businesses, which contributes to the equality of all women by reducing the sexual objectification of women.
What really pushes the harms of prostitution underground is a fully legalized or decriminalized regime. In such systems, the majority of women do not operate out of licensed or registered venues, but the existence of such venues provides a veneer of acceptability so that the large majority of the industry can operate with impunity. In legalized venues, most women do not report the violence they experience to police, because of pressure from brothel owners. In New Zealand, for example, women in brothels cannot refuse clients unless they provide a good reason acceptable to the brothel operator.
Finally, the Nordic model does not impede immediate concrete measures to support the health and safety of women in prostitution. Since the women are not criminalized, they can access services without fear of arrest. In addition to the social supports for exiting that are integral to this model, it is also consistent with supports such as contraception, health care, counselling, legal representation and other initiatives for women who have not exited prostitution. These initiatives are best delivered in a legal and public policy environment that does not consign some women to prostitution indefinitely.
The Nordic Model would be Constitutional
It is not unreasonable to expect that any new laws, including a regime of asymmetrical criminalization, will be subject to further constitutional challenges in the courts. This may take some time, as the challengers and the government will need to amass an evidentiary record as to the laws’ impact. Nonetheless, even at the outset of this law reform process, some observations on the constitutionality of a Nordic model in Canada can be addressed at the level of principle.
The questions a court will have to consider are whether such a law would violate the s. 7 right to liberty or security of the person of any relevant party and, if so, whether the violations would be contrary to the principles of fundamental justice. In addition, we must consider the role that the equality rights protected by s. 15(1) should play in this analysis.
First, it must be recognized that questions of standing will likely alter the parties to a future challenge compared to what faced the courts in Bedford. While the Supreme Court has recently broadened the rules regarding public interest standing, one would expect that challenges to any new laws will have to come from those potentially criminalized by them, that is to say current or former johns, profiteers or traffickers. While all of these groups have a liberty interest that is engaged by the prospect of criminalization, none of them have security of the person concerns under s. 7. The safety of johns, profiteers and traffickers is not in any way put at risk by the criminalization of their activities. Looking only at these parties, then, constitutional arguments are very weak. There is no constitutional right to purchase sexual access to another person or to profit from their prostitution. If the objectives of the new law are clearly drafted with a focus on sex equality and the protection of vulnerable persons, it will be exceedingly difficult to conclude that the s. 7 rights of johns, pimps and traffickers are violated.
However, one can also expect that claimants analogous to those who brought the challenge in Bedford, that is to say persons with current or former experience in prostitution, might try to assert standing to challenge the laws that criminalize johns on the ground that they violate the s. 7 rights of women in prostitution. Such a claim would likely argue that the criminalization of buyers infringes women’s security by requiring them to operate in secret locations and by preventing them from adequately screening their buyers for potential violence. One can surmise that these claimants will move away from arguments based on their asserted choice to prostitute and will instead focus on what they would refer to as “survival sex workers” whose options are the most limited and who face the greatest risk of violence.
The Women’s Coalition took the position in Bedford that s. 7 claims based on women’s screening of men for violence run contrary to decades of front-line expertise in the women’s anti-violence movement. Women cannot and should not be expected to know when a man will become violent. Women are most often harmed by men they know and trust. The screening argument privatizes women’s security and dilutes the state’s obligation to prevent and respond to male violence. We note that a majority of the Ontario Court of Appeal agreed with this position and hope that a better evidentiary record on this question will be amassed in any future challenge. Nonetheless, we recognize that the application judge did make such a finding with respect to the communicating law and the Supreme Court of Canada, applying an extremely deferential standard, declined to find that she had made a palpable and overriding error on that point.
Nonetheless, a law criminalizing johns for purchasing sex should be considered constitutionally sound. Even if another judge were to accept that a woman in prostitution has standing to argue that her security of the person is at risk because such a law limits her “screening” of johns, the balance under the s. 7 analysis is very different. First, because the woman is not criminalized, she does not herself risk arrest regardless of how long she engages in conversation with the john. This changes the factual context in which the argument is evaluated. Also, the prohibition extends to purchase in any place, so moving the conversation to a private location does not assist the john in escaping arrest, since arrests are typically done through an undercover police officer who will continue her discussion with the john once she is in the car or out of public view.
Second, it can no longer be argued that prostitution is a legal activity, a characterization that heavily influenced the Supreme Court. While it is true under an asymmetrical model the selling of sexual access to one’s person is not criminalized, it can be made clear in the introduction of the new law that this does not “legalize” prostitution, any more than not prosecuting trafficked persons makes trafficking legal, or not prosecuting victims of incest makes incest legal. Buying sex will be illegal in all circumstances, thus condemning the practice of prostituting women per se regardless of the location.
Third, the principles of fundamental justice demand consideration of the objectives of the new law. If these are drafted so as to clearly indicate that prostitution is the sexual exploitation of women (as in our sample law above), and that the demand for prostitution is the source of that exploitation and also fuels sex trafficking, then any negative effect on screening is negligible compared to the benefits of the law in targeting the source of the harm to women. This is important, since the Supreme Court in Bedford relied heavily on the limited purpose of the street prostitution law as combating social nuisance in its conclusion that s. 7 was violated. Thus a law targeting johns is not arbitrary, overbroad or grossly disproportionate. It decreases the amount of prostitution taking place, which increases women’s security so long as adequate alternatives to prostitution are available.
In Bedford, s. 15 of the Charter was wholly excluded from the court’s analysis. The claimants did not raise it and the government was not able to argue that equality formed part of the laws’ objectives. The Women’s Coalition believes that this omission inevitably skewed the analysis. Section 15(1) equality rights must form part of the basis for the new laws and be present as a clear interpretive lens for s. 7, such that each right must be interpreted harmoniously with the other. Prostitution is a violation of women’s right to equality and this must form part of the constitutional equation. The Nordic model provides women with alternatives to prostitution, decreasing the likelihood that women will have to turn to prostitution in order to survive. Expanding women’s economic security enhances women’s equality. This is why fulfilling the third part of the Nordic model (services for women) will help ensure the law’s constitutionality.
The arguments that were used in Bedford to challenge the bawdy house laws have no application to a law criminalizing the purchase of sex. Those arguments focused on the limitations such laws placed on the ability of women to prostitute from indoor locations which they considered to be less dangerous forms of prostitution. While the Women’s Coalition believes that this ignores the extreme danger of prostitution in any location, and its inherent harms, the argument does not apply in any event to a law criminalizing johns, since prostituted women will not be criminalized in any location, including indoors.
At most, the Nordic model means that venues for prostitution have an incentive not to be as overtly visible as compared to a decriminalized regime. There is ample evidence that even under decriminalized regimes, most johns and most prostitutes still seek to operate out of public view. In a decriminalized regime, visibility of the venue is not a guarantee of dignity or safety since police have no legal basis on which to enter the location. Moreover, no one suggests that criminalizing the purchase of sex from youth, in any location, as is presently the case in s. 212(4), is unconstitutional because it pushes youth prostitution out of public view, any more than criminalizing other forms of child sexual abuse has this effect. When prostitution is understood as a practice of abuse and exploitation, regardless of the present age of the person being bought, the harms targeted through the law are clearly paramount to any speculative decrease in visibility.
One other constitutional argument should be addressed. Some commentators have questioned whether a law that criminalizes only johns, and not prostitutes themselves, is discriminatory on the ground of sex contrary to s 15(1) of the Charter, given that a large majority of prostitutes are women and johns are almost exclusively men. In other words, criminalizing men but not women is sex discrimination.[xiv] Such an argument is plainly wrong, and reflects a fundamental misunderstanding of substantive equality law.
The gendered nature of the prostitution industry is in fact evidence that prostitution is a practice of inequality. Many acts of violence and exploitation are exercises of power by dominant groups against subordinated ones. Criminalizing the exploiter and not the exploited is not discrimination; it is instead an act of resistance to inequality. For example, almost all of those charged with sexual assault are male, while the large majority of sexual assault victims are female. No one could suggest that it is sex discrimination to prosecute the sexual aggressor but not his victim. The same can be said for other forms of violence against women, such as battering and stalking.
Any measures that would recriminalize prostituted women run the risk of undermining the constitutionality of the new provisions. The measures adopted would no longer be connected to the objectives of the law. The same security of the person arguments used in Bedford could be renewed, in addition to the infringements of liberty. It is surely contrary to the principles of fundamental justice to punish women for their own exploitation. Prostituted women must remain free from criminalization.
The Women’s Coalition for the Abolition of Prostitution urges the Government of Canada to adopt an approach to prostitution law and policy that is grounded in the substantive equality rights of women. This approach recognizes prostitution as a practice of exploitation and discrimination. Prostitution is a commercial industry which targets the most vulnerable women and girls for abuse. We call on the Government of Canada to take measures to deter the purchase of sex in prostitution, through legal measures and educational efforts, and to ensure that all women in Canada have the opportunities and support to live free from prostitution. The goal must be to reduce, and ultimately end, the demand for prostitution.
[i] 2013 SCC 72
[ii]The factums of the Women’s Coalition are available at www.abolitionprostitution.ca(“Legal Documents”)
[iii]Details of the Swedish law can be found at http://www.government.se/sb/d/4096/a/119861. See also Gunilla Ekberg, “The Swedish Law That Prohibits the Purchase of Sexual Services” (2004) 10 Violence Against Women 1187; Max Waltman, “Prohibiting Sex Purchasing and Ending Trafficking: The Swedish Prostitution Law.”(2011) 33 Michigan Journal of International Law 133-57.
[iv] An English language summary of the 2010 Report, as well as a translation of Chapters 4 and 5 can be found at http://www.government.se/sb/d/13420/a/151488.
[v]It is important to note that each of these countries takes a somewhat different approach in terms of law and policy. The Swedish law is clearly identified as rooted in sex equality principles, which we consider important to its success.
[vi]Proposition de loi renforçant la lutte contre le système prostitutionnel, Texte Adopte No. 252, 4 decembre 2013, available at http://www.assemblee-nationale.fr/14/pdf/ta/ta0252.pdf
[vii] The motion was introduced by MP Mary Honeyball (UK). See European Parliament resolution of 26 February 2014 on sexual exploitation and prostitution and its impact on gender equality (2013/2103(INI)), available online at http://www.europarl.europa.eu/RegData/seance_pleniere/textes_adoptes/provisoire/2014/02-26/0162/P7_TA-PROV(2014)0162_EN.pdf
[viii] For one investigation into male sex buyers, see Victor Malarek, The Johns: Sex for Sale and the Men Who Buy It (2009).
[ix] Bedford has the effect of striking the word “prostitution” from the definition of bawdy house in s. 210. The remainder of the offence remains as it applies to places kept for the purpose of practices of indecency. To what extent this continues to criminalize aspects of the sex industry is unclear.
[x] The standing decision is reported at Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45.
[xi] Protocol to prevent, suppress and punish trafficking in persons, especially women and children, supplementing the UN Convention against Transnational Organised Crime (2000), available online at http://www.osce.org/odihr/19223
[xii] The section numbers are for illustrative purposes only. As noted above, they should be grouped together as Offences Against the Person.
[xiii] For a comprehensive review of the evidence on the harms of prostitution to women, see Catharine A. MacKinnon, “Trafficking, Prostitution, and Inequality” (2011) 46 Harv. Civ. Rts. Civ. Lib. L. Rev. 271-309 at 276.
[xiv] For example, Professor John Lowman raised this argument in his submission to the 2006 Subcommittee.