06/05/2014 08:21 EDT | Updated 06/16/2017 01:00 EDT

Tories' Prostitution Law Is a Mess That's Destined to Fail


Pity poor Peter MacKay. He looks like he's having about as much fun rewriting Canada's prostitution laws as he would be having if he had to perform a root canal on himself using nothing but a crochet needle and a compact mirror.

Who could blame him? Trying to find the right law to reflect current attitudes on prostitution isn't exactly easy. As a society, we've never been more open and tolerant towards sexuality; we've also never been more aware of the vagaries of the sex trade -- trafficking, drug abuse, underage prostitution.

The Tories believe they've found a middle ground between those two attitudes, adopting a variation of what has come to be known as the "Nordic model" -- essentially legalizing the selling of sex while criminalizing the purchase of sex.

Of course the Harper government isn't calling it the Nordic model; they're calling it a "uniquely Canadian" solution. And if they're insisting on this, there's a good political reason for that. They probably don't want people looking too closely at the origins of this particular approach to the sex trade.

That's because it rests in a particular strain of feminist thought that views prostitution as being inherently a form of exploitation -- or even an act of violence -- against women by men.

"In prostitution, women have sex with men they would never otherwise have sex with. The money thus acts as a form of force, not as a measure of consent. It acts like physical force does in rape," activist and scholar Catharine MacKinnon said in a debate several years ago, succinctly summing up this view of the sex trade.

I will leave you, dear reader, to assess for yourself just how sensible MacKinnon's argument is.

Suffice to say, from the perspective that informs the Nordic model, every act of prostitution is an act of victimization. It ignores the reality that some women are in the sex trade voluntarily, that some women see being able to extract money from men for sex as a form of power and maybe even a form of reverse exploitation. It also ignores the reality that some men sell their bodies to other men, and voluntarily.

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That's not to say that exploitation of women doesn't exist in the sex trade: Underage girls forced into prostitution, women trafficked across borders and kept in servitude, abusive pimps who keep vulnerable women in a cycle of drug abuse and dependency -- these problems are real, and any reasonable approach to prostitution should confront them.

But the Tories' approach will do little, if anything, to change this. And the odds are good that Canada's prostitution laws will be back before the country's highest courts soon enough.

Why? Because the new legislation fails to address the fundamental problems that caused Canada's prostitution laws to be challenged and struck down in the first place. In fact, it makes those problems worse by setting up a legal absurdity and a moral morass.

Under the new laws, a sex worker may not be committing a crime simply by selling themselves for sex, but they will still in effect be forced into a criminal conspiracy with their customers. You pay me for sex, and I promise not to tell anyone you paid me for sex.

Pardon me, but isn't this nonsense? If you told Tim Hortons they're allowed to sell donuts, but anyone who buys one is a criminal, would good old Timmies consider that a reasonable legal regime under which to operate?

Of course, the sex trade isn't donuts and the Tories aren't trying to eradicate coffee shops. But this looks very much like the sort of confused, have-it-both-ways regime that the Supreme Court rejected last year when it threw out Canada's laws surrounding prostitution.

Under the old laws, prostitution was legal, but almost everything surrounding it -- pimping ("living off the avails of prostitution"), advertising sex for money and running brothels -- was illegal.

The Supremes rejected that as a confused policy that made life dangerous for sex workers. If prostitution itself is legal, the Supreme court reasoned, then making everything surrounding it illegal is a violation of Constitutional rights.

But the exact same argument can now be applied to the new set of laws. Activist sex workers are already making noises suggesting they'll be going back to the courts over the new laws. They're feminists of the selling-my-body-for-money-is-empowerment variety, and they don't take too kindly to the Nordic model.

Their argument will be strengthened by growing evidence that the Nordic model isn't working out in the Scandinavian countries where it's been adopted. Sex workers say the laws are driving their trade deeper underground. Buyers of sex are insisting on meeting in more secretive locations. Police insist there has been no increase in violence, but concede the laws have done nothing to address trafficking.

Interestingly, the Supreme Court did give the Tories an out -- the option to simply criminalize prostitution altogether. After all, the court threw out those laws linked to prostitution precisely because prostitution itself was legal. If prostitution is actually criminalized, then the whole argument that brought down Canada's prostitution laws falls apart.

If the Conservatives, being conservative, can't find their way to decriminalizing prostitution, as is the case in Australia, New Zealand, Germany, Holland and many other countries, they should have simply criminalized it outright. That would have been an old-fashioned approach, but one that is consistent, and (I'd be willing to bet) probably constitutional.

But this befuddled half-measure is clearly a political calculation, rather than an attempt at moral or legal clarity.

So it's almost a certainty we will be back here again, some years from now, debating yet another challenge to prostitution laws. Let's just hope that, when that day comes, we'll have a government in place that has the courage to take a full measure.