Why turn prostitutes into criminals? by David Asper

With our prostitution laws being challenged in the courts, moral questions about the world's oldest profession are being debated in Canada.

And not for the first time.

In the mid 1980s, the Special Committee on Pornography and Prostitution -- known as the Fraser Committee -- extensively studied Canada's prostitution laws. In 1985, it recommended, among other things, that street-prostitution crimes be made tougher, but that prostitutes be allowed to ply their trade in safer, private "bawdy houses" (i. e., brothels) with certain limitations.

Parliament did the first part -- enacting harsher laws regarding street prostitution, but refused to strike down the Criminal Code's bawdy-house prohibitions. As a result, prostitutes continue to provide sex for cash, which is technically legal -- but they break the law when they solicit on the street or partake in the operation of a brothel.

In 1990, a legal challenge to the law made its way to the Supreme Court of Canada. In a case known as the Reference under Section 193 and 195, the court upheld both the street-solicitation and bawdy-house laws. The majority opinion reasoned that the social nuisance occasioned by prostitutes seeking out customers was sufficient reason to justify criminal sanction. It went on to say that the public act of solicitation was degrading, and ought to be out of public view of young women who might be enticed by the supposed allure of the life of a prostitute.

Further, the court held that the crime of keeping a common bawdy house was not an excessive infringement on life, liberty or security of the person because any such deprivation was in accordance with "fundamental justice."

The Supreme Court decision effectively passed the ball back to Parliament on the larger policy issue. Since then, countless prostitutes (and their customers) have been charged and convicted.

In a twist on the argument first made two decades ago, the new Charter challenge being made in Ontario claims that harm is befalling prostitutes because they have been forced underground into a world where they are being victimized by violence. The argument is that their technically legal trade, prostitution, has been turned into a high-risk activity because the Criminal Code prevents them from performing that activity in a safe, private manner. As Exhibit A, they point to the sex trade workers across Canada who have been beaten, kidnapped or are otherwise "missing."

Many argue that prostitution is a symptom of hopelessness on the part of people who are forced into the business by poverty, addiction or de facto enslavement by predatory pimps. Others say that in most cases being a prostitute is a voluntary choice. Regardless of which view is correct, the fact is that prostitution has been around for a long time. Whatever is motivating a prostitute to trade sex for money, does it seem fair to make him or her a criminal for trying to do their business?

Until Parliament resolves the question about whether prostitution itself should be legal or illegal, we are going to be left with a void between the law and common sense, with ongoing challenges to the validity of our criminal laws.

The Fraser Committee did valuable work and provided very sensible recommendations to Parliament. The Harper government ought to dust off the books and have another look.

David Asper is Assistant Professor of Law at the University of Manitoba.

*Reprinted with permission from David Asper. Original article posted on October 8, 2009 on The National Post Full Comment blog:

http://network.nationalpost.com/np/blogs/fullcomment/archive/2009/10/08/david-asper-why-turn-prostitutes-into-criminals.aspx