In a ground-breaking ruling today, Canada's Supreme Court unanimously struck down three key laws concerning prostitution in this country, declaring them unconstitutional, disproportionate and overly broad.
The case, initiated six years ago by three Ontario sex workers -- Terri Jean Bedford, Amy Lebovitch and Valerie Scott -- asked the court to strike down the three provisions of the Criminal Code because they violate sex workers' constitutional right to security of the person, protected by the Charter of Rights and Freedoms.
In essence, it was decided that Canada's current prostitution laws violate prostitutes' security of the person under section 7 of the Charter of Rights, by increasing the risk to their lives and safety in a multitude of ways. The law, as it stood, prevented prostitutes from taking measures to increase their safety by basically allowing prostitution to be considered legal in this country but putting so many restrictions on everything surrounding selling and soliciting sex that it inherently increased the risks to sex workers' lives and safety.
McLachlin very astutely noted that these restrictions "prevent people engaged in a risky - but legal - activity from taking steps to protect themselves from the risk" and that a "law that prevents street prostitutes from resorting to a safe haven such as Grandma's House while a suspected serial killer prowls the streets, is a law that has lost sight of its purpose."
It is now up to Parliament to devise a new approach, either amending the laws or setting the issue aside. In the meantime, the court's decision will be suspended for one year and the laws will stand as they are.
To simplify things for people confused about the ruling, it is not a crime in Canada to sell sex for money. Prostitution is legal in this country. However, it is a crime to keep a bawdy-house, to live on the avails of prostitution or to communicate in public with respect to a proposed act of prostitution.
In essence, we've legalized an activity, but, until now, have allowed for everything that surrounds that activity to still be considered illegal and subject to criminal arrest.
So, let me understand... it's ok, but it's not ok?
Welcome to a world that claims to be liberated and open-minded, but still loves to stigmatize and label. Prostitution may be the world's oldest profession, but it's also always been the most dishonorable one. Prostitutes were never expected to conform to society's rules and they therefore were never supposed to be protected by the law. After all, honour is one of the most important criteria for the stratification of society, isn't it? Women without honour (said honour is usually directly related to their sexual history) have historically never been worth as much as women with honour (usually, virgins).
Even living in largely secular societies, as we do today, does not immediately absolve us of thousands of years of religious doctrine and moral judgement. We still carry the remnants of a time when church and state worked hand in hand in passing judgments - and ultimately laws.
What was usually defined as a sin by the church was routinely defined as a crime by the government.
Enter sex workers, who are still routinely seen as the lowest of the low in this society of ours, requesting (nay, demanding!) that they be given protection and that laws be enacted rendering their profession safer, easier to engage in, and ultimately devoid of any criminal prosecution.
The gall!
Should no consequences befall people who choose to engage in such risky and morally ambiguous behaviour? Should we put our stamp of approval on such questionable life choices? Should these women have a right to safety?
I suspect this is what Globe & Mail columnist, Margaret Wente, was thinking when she wrote her highly moralizing column: "Legalize prostitution? Are we nuts?" a few months ago. Unfortunately for her, prostitution is already legal in this country, so her column was not only slightly irrelevant, but largely hypocritical.
In an emotionally-charged tirade she questions why "feminists and other progressive types" (I can taste the disdain in that characterization...) are so enthusiastic about legalizing prostitution, declares that "anyone who has qualms about normalizing the sex trade is likely to be labelled as a religious nut, a prude, or an old-style moralist" and then promptly goes ahead and reveals herself to be just that... an old-style moralist, by using "degrading" "exploitative" and "wretched" as many times as she possibly can in her column before running out of -- what one suspects -- is permissible word length.
It's very simple, really. Legalizing prostitution does not mean we're normalizing it or even necessarily condoning it (for those "what has the world come to?" folks), but simply regulating it. Criminalizing sex work (and the related actions required to engage in it) has never eradicated prostitution and it never will. That's just wishful thinking. But better regulation ultimately establishes the conditions for increased protection of sex workers, and isn't that what it's all about?
Many are quick to say that in the Netherlands, Germany, and Australia, legalization has still failed to protect the women in prostitution, control the enormous expansion of the sex industry, and decrease child prostitution and trafficking from other countries.
Yes, legal reform clearly does not solve all problems related to the sex industry. It would be naïve to assume so. But putting legislation in place that allows for louder voices, safer places, more rights, better treatment and better recourse, if sex workers are abused or mistreated, is nothing to scoff at, and certainly a step in the right direction.
One can have tons of discussions about personal and societal factors that lead to people becoming sex workers, and whether selling your body (even consensually) can be viewed as dignified work at all, and they would all be valid and constructive.
But while we're sitting around engaging in privileged conversations about the social context of such decisions and their ramifications, there are real people leading real lives, engaging in the risky business of selling their bodies for money on the street, in brothels, and in massage parlours, and regardless of how they reached the decision to do this, they are entitled to be protected, and their lives and health not to be put at risk.
If changes to our legislative system can do that, while we continue to engage in meaningful debate on how to tackle the many precursors to prostitution (like sexual abuse, poverty, drug addiction) and related issues, like sex trafficking, than why shouldn't we?
If legislation has the power to prevent or even simply decrease the odds of one less sex worker from being abused or killed, then what are we sitting around discussing?
At the end of the day, this isn't about what makes us comfortable or us moralizing on sex workers' rights or what they do with their bodies, but about setting in place laws that actually protect people who freely and of their own consent sell sex.
If prostitution is legal, we should also make sure it's safe. It's as simple as that.