The federal Conservative government’s new anti-prostitution law is not only a waste of time, but a dangerous bid for a voter base.
Last week, federal Justice Minister Peter MacKay introduced his government’s proposed new anti-prostitution law, which he said targets “pimps and perverts”—criminalizing prostitution for the first time in Canada by aiming to punish clients and managers rather than directly targeting sex workers themselves. The law’s supporters would argue that it will protect sex workers, which may sound reasonable to a lot of people who are uncomfortable with prostitution and/or concerned that women in the business are victims.
But it’s a terrible law, both in theory and in practice. In fact, it’s likely to endanger the very people it claims to protect. Which is particularly enraging since the new law is being proposed after the Supreme Court struck down the old laws because they didn’t allow those in the sex trade to protect themselves. In its December 2013 decision, the court said prohibitions on advertising, hiring employees, and working in brothels or one’s home meant all transactions had to be conducted one-on-one, in private, in places where sex workers could be exposed to danger. The new law appears to criminalize all those same things, adding punishments for clients, which is likely only to drive the business further underground. (And despite MacKay’s declared intention to treat sex workers as victims, it does impose new and harsher penalties on them, too, along with prohibitions covering “rub and tug” massage parlours, escorts, and strippers.)
Jean MacDonald, executive director of Maggie’s, a sex worker’s advocacy organization in Toronto, sounded furious when I spoke to her. “What you’re going to see with this law is a continuation of the epidemic of violence against sex workers in Canada,” she says.
The 2013 Supreme Court decision seems to back up her claim, as does the majority of the research I’ve looked at on sex-work regulation over the past decade I’ve been following the topic. One Canadian study published last week in the British Medical Journal looked at the model of punishing johns but not sex workers and found it had no effect at curtailing prostitution, while it elevated the risk of violence and abuse of sex workers. This follows many other studies—including those by the Swedish government that pioneered the model—that show the same thing. Prostitution persists, and becomes more dangerous.
What’s more, this new law likely won’t survive a challenge. “If anything it seems to replicate a lot of the effects of the old provisions, [which] the court struck down,” says Emmet Macfarlane, a University of Waterloo professor and an expert on the Supreme Court and Charter Rights, just hours after the bill was introduced. Macfarlane expects to see challenges almost immediately—and anticipated that judges will start tearing the law down in response. But it will take a few years until it comes before the Supreme Court for appeal. In the meantime, as a result of the Conservatives’ law, it’s likely that many sex workers could be beaten or even killed.
Given all that, the rationale for introducing the bill seems to be pure cynicism. Many people—especially members of the Conservative party—feel on a gut level that sex work should be illegal. Some of these folks are genuinely well-intentioned, including many who’ve worked with abused women in the trade who associate prostitution inextricably with human trafficking and sexual slavery, and are looking for a way to prevent it. They say, as MacKay does, that it is impossible for a person to freely choose to sell sex the way they choose to sell any other service. To which I’d only respond that I trust the testimony of the dozens of sex workers I’ve heard from over the years—a handful of whom I have known socially—that they did choose the business, and only want it to become safer.
Many opponents of prostitution operate on the moralistic impulse to outlaw things they find gross—the sort of attitudes that have driven past prohibitions against things like homosexuality and premarital sex.
MacKay is playing to the biases of these people, the prudish and the protective, for political gain—the bill may not accomplish its stated goals, and may be struck down, but there’s an election next year and a base to please.
And it is clearly intended for the Conservatives’ base. A 2011 Angus Reid poll showed a majority of Canadians would be comfortable with legal prostitution, while only one third wanted to ban it (including only 16 per cent who supported a punish-the-customers law like this one). But that latter group is likely made up largely of the Conservative voters Stephen Harper and MacKay need to motivate: Party members also passed a resolution last year asking for a similar law outlawing the purchase of sex (alongside asking for laws banning sex-selective abortion and assisted suicide).
If MacKay and his party really cared about protecting people, there are other models available. In New Zealand, prostitution is conducted legally in the open, and sex workers are covered by regular labour and safety laws. Studies of that regime show that in a decade, the trade has become no more prevalent, but violence has decreased, working conditions have improved, and safe sex practices have increased. That version offers no moralizing law-and-order provisions for MacKay to brandish against those he disdainfully calls “perverts.”
We’ve gotten used to cynicism from politicians. Hell, we’re just finishing an election campaign in Ontario in which one key issue was a craven decision to waste a billion dollars cancelling a massive gas-plant project to win a couple of seats. But even in this degraded political environment, Harper and MacKay’s apparently calculated decision to subject women (and men) to the possibility of rape, violence, and murder in order to please their political base is revolting.
Policing Sex in Canada
The Divorce Act is amended to allow divorces in cases other than those involving adultery, adding physical or mental cruelty, desertion, and long-term separation as permissible grounds.
Justice Minister Pierre Trudeau famously says, “There’s no place for the state in the bedrooms of the nation,” when introducing a law that legalized homosexuality, birth control, and therapeutic abortion.
The criminal code is amended to add a prohibition on “soliciting for the purposes of prostitution,” replacing a 90-year-old vagrancy provision that covered streetwalking prostitutes.
A federal court strikes down laws that allow customs officers to ban any material they deemed “immoral or indecent”—such as pornography or erotic art and literature. The bar was now material deemed obscene as defined in the criminal code.
The “soliciting” provision of the criminal code governing prostitution is struck down and replaced with a ban on “communicating in a public place for the purposes of prostitution.”
The Divorce Act is amended to allow no-fault divorce after only a one-year separation.
The Supreme Court strikes down Canada’s abortion laws entirely, leading to the current situation, in which there are no restrictions or regulations covering abortion.
The Supreme Court issues a decision clarifying what types of pornography are subject to a ban under existing obscenity laws.
A specific ban on possession, production, sale, or distribution of child pornography is added to the criminal code.
Canada passes nationwide legislation recognizing same-sex marriages.
The age of consent for sexual intercourse is raised from 14 to 16 (it had been 14 since being raised from 12 in 1890). For anal sex between unmarried partners, the age of consent remains 18.
The Supreme Court strikes down several of Canada’s laws governing sex work—those against communicating, bawdy houses, and living off the avails—on the grounds that they prohibit sex workers from conducting their otherwise legal business safely.