“Ah, but it helps, doesn’t it? Most of us ignore the plight of street prostitutes for the same reason we ignore the plight of squalid native communities: out of sight, out of mind. It is only when some monstrous tragedy jumps out of these underworlds — tweeners gone glue-sniffing, or the frozen toddlers in Yellow Quill, in the case of natives; a serial killer and sadist in the case of prostitutes — that anyone bothers paying attention.”
- Jonathan Kay: A worthy, measured blow for prostitution-law reform (National Post, Mar 26, 2012 – 1:41 PM ET | Last Updated: Mar 26, 2012 3:25 PM ET)
When reading Mr. Kay’s piece, I found myself in agreement with the gist of his piece. Simply put, he noted that the Ontario Supreme Court was measured in their decision. They struck down the most egregious parts of the legislation and left a prohibition on street prostitution. In doing so, the Court has indicated to Parliament that the legal framework for Prostitution as it now stands does not comply with the Charter. Furthermore, the actions of the court were justified since no political party would have likely touched this issue with a “ten-foot pole”.
Consequently, it was not a surprise that the Court’s judgment was “written in a way so as to mute calls of ‘judicial activism.’ ‘While we have concluded that some aspects of the current legislative scheme governing prostitution are unconstitutional,’ the majority wrote, ‘it remains open to Parliament to respond with new legislation that complies with the requirements of the Charter’.” So where does this leave a lone policy wonk? Simply put, we can now talk about the characteristics of a workable system. Or put differently, we talk about what sex work can look like in this country.
I would argue that the Court has left one with two possible outcomes: Parliament could either decriminalizing bawdy houses or move to legalize the sex trade industry. While I am not a lawyer, it seems to me that legalizing the trade would be easiest. Firstly, if one only decriminalizes bawdy houses, it is not clear that another Charter challenge could be launched. While, it is true that the example of Nordic countries would indicate that decriminalization might work, I am always afraid that decriminalization might just redefine the ghettos in which prostitution takes place. In a decriminalized environment, it would still be hard for sex workers/prostitutes to take full advantage of the law. If treating humans with respect is what we are trying to accomplish, prostitutes should be able to work in a legal environment.
This principle gives us the first foundation of our system: our new theoretical system should remove all illegal elements present in the sex trade industry. Or put differently, we need to start by respecting the “Other”. For, woman and men who are sex workers are still human beings and any new system should respect their humanity. Therefore, it is easy to say that some activities should still be illegal. While people might be able to buy sex, individuals should never be trafficked to allow this industry to continue. For, we do not want people to be treated like commodities. As we do not allow for slavery, people should not be bought and/or sold.
Furthermore, the exclusion of organized criminal elements from our new system would also be advisable. For, criminal elements work outside of the law, where “Justice” is always imposed by physical means: threats, violence against people or black-mail. If we want a workable “sex economy”, our system needs to be within the confines of the law so that government regulators, police officers and courts can monitor it.
The easiest and most effective way of creating that barrier is some form of licencing programme. Just as my driving licence, vehicle registration and licence plates allows police officers to monitor the roads, a sex trade licencing programme – controlled by the federal government and/or the provinces – would allow all members of society to determine and understand the status of persons or corporations who would be soliciting for various sexual products. These products could include BDSM or actual sex. But either way, Police Officers could look at a certificate and establish whether the individuals or businesses in question were legally allowed to have a “sex” business. Citizens would know the regulatory framework for the business and understand their rights in relation to that business. Furthermore, it would shine the light on the profession; thereby “disinfecting” or cleaning-up the industry’s worst characteristics. Prostitutes or Sex Workers will no longer fear violence or death, as just one example.
However, there are other wonderful outcomes. For example, Alberta has had trouble controlling the rate of sexually transmitted diseases. With regulation, rules and training could be established. Safe or Safer Sex Protocols could be established. Licensed sex workers could be trained and tested. As such, workers would be less likely to become a health hazard or vector for spreading a number of illnesses. While, this would include STDs, other infectious diseases like colds, flus (including avian flu) and Tuberculosis could also be dealt with. Therefore, from a moral point of view, the regulation of the sex industry could save lives.
But the good news does not end there. Conversely, the regulation of this industry could provide a potential boon in government revenues. Because sex workers are not registered, only some sex workers may pay income taxes. Bring all sex workers in “from the cold”, would have a beneficial aspect on our government coffers. The collection of GST and other fees or taxes might be helpful in this time of austerity. Consequently, licensing seems to be an important characteristic of our system.
However, there are other markers that our new system could use and “Choice” should be one of them. Our sex trade workers should have a way of getting out of the system. Being in the system means that sex trade workers can pay EI and CPP. Right now, those benefits provide retraining courses and transitional funding. These benefits would be extended to sex workers. This means that if we think of a fictional sex trade worker, he or she might be able to learn to non – sex related skills should they try to leave the sex trade. Existing government benefits would make it easier for sex trade workers to actually get out of the system. At present, sex workers have to use their own resources for the transition. Since many of them are dependent on drugs, pimps and criminal elements, one can see that our present system only allows for the growth of the illegal sex trade industry.
Additionally, since our sex trade workers might be examined regularly or have to renew their license, governments would have opportunities to get them “onto a different path”; should the sex worker in question choose to go along that path.
The last principle should be fairness. Given our societies Judeo-Christian value set, it is difficult to think of sex work as just another industry. We have a very deep seated moral aversion to sex work or prostitution. However, in regulating the industry fairly, we could encourage most – if not all – sex workers to work within our new system. Therefore, we could gain the benefit of easily identifying problems within the sex worker community. This means that we could deal more easily with health concerns, criminal activity, and the trafficking of people – sex worker or not.
This court decision should be seen as a boon to Canadian Public Policy. It provides us with the opportunity to change our laws in such a way that we can protect many stakeholders. Police Officers would see less work in this area. We could have a better use of public resources by dealing with the most heinous parts of this issue. By treating the “Other” – sex workers – with respect, we could solve more issues than just criminalizing the practice all together. Therefore, registration, regulation, choice and fairness should be the foundation of any new system regulation sex workers.