If people point to some prostitutes as victims they should realize, as the judges did, that the very laws in place were much of the cause of that. – Terri-Jean Bedford
On December 20th, the Canadian Supreme Court ruled on the government’s attempt to block the Himel decision (which struck down Canada’s prostitution laws on September 28th, 2010). The one-line version: “The prohibitions at issue…prevent people engaged in a risky – but legal – activity from taking steps to protect themselves from the risk.” If you want more detail, here’s the 705-word version, and here’s the whole thing (almost 20,000 words). The good news is, the court agreed with sex worker rights activists that the chief danger of sex work is not intrinsic to it, but rather results from the laws imposed upon it. The bad news is, the court suspended its decision for a year to give the government time to write new laws, and there is nothing in it to prevent the imposition of American-style criminalization:
…the Supreme Court’s decision doesn’t touch on the principle of sexual autonomy. Rather, it cleaves to a tighter, narrower logic…The central metaphor in Bedford is, perhaps oddly, bicycling. It would be wrong for Canada to allow citizens to ride bicycles, but forbid them to wear helmets. If a law makes a legal activity more dangerous, it is suspect…sex work is a legal activity, but related prohibitions made it less safe, so the Supreme Court struck down those prohibitions…[but] said nothing about whether sex work itself should be legal…if Parliament introduces new laws that directly criminalize sex work…the logic of Bedford will have very little to add to the next legal fight about prostitution…
Were this the United States, you can bet the legislature’s immediate response would be criminalization. However, it’s a little different in Canada; though some politicians have been huffing and puffing about the decision every sane person knew was coming for months now, Canada has since the late 1960s maintained a strong tradition (well, much stronger than that of the US, anyhow) that “the state has no place in the bedrooms of the nation.” In 1988, the historic Morgentaler decision included the statement “[T]he basic theory underlying the Charter [of Rights and Freedoms is] that the state will respect choices made by individuals and, to the greatest extent possible, will avoid subordinating those choices to any one conception of the good life.” That would seem a strong argument against criminalization, but…
…as with Morgentaler, as with the Chaoulli medicare case in 2005, the court has not presumed to judge the purposes the legislature had in mind. Whether the state may restrict abortion, or establish a public health-care monopoly, or regulate prostitution are all subjects on which the court has expressly declined to intervene. All it has insisted in each case is that, in the pursuit of these objectives, the state may not actually kill people, or put their safety at risk…
On the other hand, the government has heavily invested its prohibitionist case in neofeminist rhetoric, and recently adopted the Swedish model as its official position; several MPs have released long-winded “explanations” of the “fact” that women are permanent victims who shouldn’t be allowed to choose sex work. There is little likelihood that a system proven to increase violence and stigmatization of sex workers would pass muster under Bedford, yet at the same time it would be rather embarrassing for the government to push for the direct criminalization of sex workers after proclaiming us too weak to avoid being controlled by morally-superior clients and “pimps”.
So at this point, it’s difficult to predict what might happen next. Reactions are all over the map; while sex worker activists hail the decision as a victory and prohibitionists either moan that it’s a disaster or bizarrely misinterpret the decision as reinforcement of their catechism, the media is generally being cautious: The Ottawa Citizen went so far as to print both Jimmy Carter’s (yes, THAT Jimmy Carter) clueless and ignorant plea for the Swedish model, then a debunking of both the plea and the model three days later. And while it isn’t at all surprising to see pro-decrim articles in Reason or Reality Check, it’s definitely not the usual fare at the Washington Post:
…In the mainstream media, prostitution is almost always conflated with sex trafficking. One only has to look at Nicholas Kristof’s pieces in The New York Times, for example…But…the…focus on trafficking has not led to policies that keep sex workers safe and healthy. Especially in the United States, the equation…has led to more spending on law enforcement…If policymakers want to make sex workers’ lives safer, there are many organizations they can learn from. Sex workers advocate for their rights through groups like the Global Network of Sex Work Projects…the St. James Infirmary… Stella in Montreal, the PACE Society in Vancouver, and Maggie’s in Toronto. These organizations are effective because they view sex work as work…Every year on Dec. 17, sex worker rights advocates worldwide host events to…underscore the harm of anti-prostitution policies…the Canadian Supreme Court has taken an important step towards abolishing the legal conditions that create this violence. We should not roll back the clock.
Given that the WaPo recently hired libertarian journalist Radley Balko and several years ago published the first major (though sadly isolated) American debunking of “sex trafficking” mythology, perhaps the wind is shifting away from prohibition there as it is at the UN and the vast majority of human rights organizations. But just as is the case in Canada, only time will tell.
Well, I think that declarations like “the chief danger of sex work is not intrinsic to it, but rather results from the laws imposed upon it” or that “related prohibitions made it less safe” are a unquestionable step foward. Of course still there is a long way to go, and we should now question if those realities are so evident why has been needed so much time and effort to recognice them.
Moreover, the question should be why abolitionists, politicians and police departments were supporting such laws. Really they didn’t know what happened? Or… maybe they knew and their intention was to endanger sex workers? Bcause in principle we all declare to desire the best for the ppl working in prostitution, nobody says to want them to be subjected to violence, abuses and extortions. But then, why is that the reality? Could be possible that anyone had been working to worsen their laboral conditions? Which benefits could they get with a prostitution “unsafe and endangered”? Those are the questions we must answer, Maggie. Have u got any explanation?
Btw, if any of u read spanish, I invite u to my blog. Look for “barrio rojo blog” in google (I think links are not allowed here, are they?)
Your user name is the link to your blog. 🙂
Links are allowed, but WordPress will automatically put a comment with two or more of them into a moderation queue for me to approve, and it sometimes takes time for me to notice them there.
They will criminalize clients in order to protect vulnerable women. The occasionally one step forward never makes up for the constant 2-step pace backwards
At first glance, the justices look like a chorus of St. Nicholases. As far as the decision, I’m keeping my fingers crossed for decrim. But that is a hard battle against the well-funded anti-sex work/Nordic model lobby. Weird, how sex worker rights activists are thought of as this well-funded pimp lobby yet we haven’t seemed to be able to purchase politicians or journalists.
I should think the profession would have enough solidarity to be able to go on strike against politicians who vote for prohibition. (On the other hand I seem to recall this was tried recently in France, and didn’t work.)
Yeah…..
Ultimately, leaving it for the legislature to decide is correct. It’s why we have legislative bodies, after all. You can’t usually write a letter you a judge, but you can write one to your MP.
So there has been no vote on whether prostitutes can be legal in Canada and operate out of their own homes?
As of right now, it is the High Court’s opinion that they can, but they gave the legislature a year to make up new and stupider laws. What this means is that police are unlikely to invest much resources in pursuing such charges, but if they do the old laws are still considered to be in effect.
Reblogged this on Sable Aradia, Priestess & Witch and commented:
This has strong implications for us as Pagans, who tend to support a libertarian sexuality and tend to be feminists. I’d love to hear your thoughts, faithful readers.
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