Columnists

Joyce Arthur
The mistaken logic of 'asymmetrical criminalization' -- a.k.a. the Nordic model of prostitution

| February 3, 2012

An often-acrimonious divide exists between feminists who call for the abolition of sex work and feminists who favour its decriminalization. As a former exotic dancer who is strongly "pro-decrim" based on the evidence, feminist principles, and listening to sex workers, I'm disturbed by what I see as wrongheaded ideology from abolitionist feminists.

Much of the abolitionist viewpoint is reflected in the Factum of the Intervenor Women's Coalition (authored by lawyers Fay Faraday and Janine Benedet). This factum was submitted in May 2011 by a coalition of seven abolitionist groups (the "intervenors") to support the federal government's appeal of the 2010 Bedford prostitution case. In that case, Justice Himel of the Ontario Superior Court struck down three clauses of Canada's prostitution laws on the grounds that they violated women's constitutional rights to liberty, bodily security, and freedom of expression. (The appeal was heard by the Ontario Court of Appeal in June 2011, with no decision announced as of yet. If the court upholds Himel's ruling, the case will likely end up at the Supreme Court of Canada sometime in 2012 or 2013. Currently Himel's decision applies only in Ontario.)

In their factum, the intervenors dismiss the court's main finding out of hand -- that the criminal laws against prostitution expose workers to violence and abuse by preventing them from taking certain safety measures -- and ignore the voluminous evidence supporting the finding. Where they disagree with the judge on something, they simply assert that the court "erred" and replace the finding with their own ideological statement presented as fact. The entire factum is filled with examples of ideology masquerading as "fact" -- and since facts don't need supporting evidence, none is ever presented!

Since the entire factum cannot be rebutted in this short space, I will focus on one of its main thrusts, which is the intervenors' promotion of the Nordic or "Swedish model" of legislation for Canada. These laws criminalize the purchase of sex by male clients, while decriminalizing the sale of sex by female workers.

Sweden was the first country to pass such a law in 1999, with Norway, Finland, and Iceland following suit more recently. The ideologies behind these laws are that prostitution is violence against women and a symptom of their inequality, that male buyers are predators and exploiters who "demand" the use of women's bodies, and that sex workers are victims that need rescuing. Abolitionists are quite fond of touting this model, which the intervenors have christened "asymmetrical criminalization":

"The Women's Coalition submits that the Charter ... mandates the asymmetrical criminalization of prostitution..." (p. 2)

Basically, they argue that Canada's current criminal laws violate the constitutional rights of "prostituted women," but not the rights of "buyers, pimps, brothel owners, and others who exploit prostituted women" (p. 2). They claim that it would be constitutional to criminalize male purchasers and that this would actually protect women's rights under our Charter of Rights and Freedoms:

"...insofar as the impugned laws criminalize the activities of pimps, buyers, brothel owners those who live off the avails of prostitution and others who exploit prostituted women, the laws do not violate the Charter rights of prostituted women. Instead, the laws support those Charter rights. Prostitution itself is harmful to women. The danger to women's security is a function not of the laws constraining prostitution, but of the actions of men who demand the sale of women's bodies. It would be illogical and contrary to principles of fundamental justice to decriminalize men's prostitution of women in order to protect women from those same men." (p. 2)

Such arguments can only be made by ignoring the large body of evidence presented at the Himel trial that showed how the laws directly endanger workers by preventing them from working with others, hiring assistants and drivers, and working indoors for an employer such as a massage parlour. The evidence showed that each of these ways of working helps to increase the level of safety for sex workers, as demonstrated even by the research of abolitionist "expert witness" Melissa Farley, who conceded that rates of violence are higher against street workers than those working indoors. It seems to have escaped the intervenors' notice that Judge Himel struck down the laws precisely for those reasons -- not because male buyers exploit and harm "prostituted women."

Later in the factum, the intervenors dismiss the court's findings that the laws put sex workers in danger for no apparent reason other than it conflicts with their evidence-free ideology:

"Prostituted women experience extraordinary levels of violence. However, the Women's Coalition submits that the challenged laws do not cause or materially contribute to men's violence against women. The danger that women in prostitution face is a function of the actions of men -- pimps and buyers -- who enforce and demand male sexual access to women's bodies in a commercially exploitative industry. There is no nexus between the laws and this male violence sufficient to establish indirect state responsibility for violating women's security of the person." (p. 14)

The Nordic model institutionalizes this "male predator" dogma by criminalizing only one side of a financial transaction -- which by itself is a mistaken piece of "logic" that can't possibly have any constructive effect. It's odd to imply that a financial transaction automatically defines the buyer as powerful and the seller as powerless, as if all store clerks are helpless victims by default. Yes, consumers and employers do have power over workers, particularly economically, but that's exactly why the labour movement fought so hard for the right to organize collectively -- a right that abolitionists deny for sex workers, thereby reinforcing sex workers' isolation and vulnerability to exploitation. What the intervenor abolitionists are really saying is profoundly sexist -- that when it comes to sex at least, women are intrinsically powerless and men are intrinsically powerful. That is a complete dismissal of women's agency and sexual expression. At the same time, it scapegoats men and demonizes their sexuality. If Canada enacted a Nordic-type law, it would be a blatant violation of men's equality rights under our Charter, since male clients would be targeted for prosecution and arrest while women are decriminalized.

However, criminalization is criminalization, and sex workers cannot work reasonably or safely when their clients are criminalized. The lives and health of Swedish sex workers are still at risk because some resort to working in more isolated locations to protect their clients, while many have moved indoors and use the Internet. All are still vulnerable to violence because they can't rely on the police to help them. Further, while the law may deter some of the safest and best clients from buying sex, the clients most likely to be abusive or violent are less likely to be deterred. More competition for fewer clients on the street means sex workers become desperate, lowering their prices and risking unsafe sex.

Swedish sex worker supporter Petra Östergren has interviewed sex workers themselves and describes their views. They feel "hunted by the police, social workers, media and sometimes even anti-prostitution activists on the streets." They report feeling "incapacitated by the state and not respected;" they "maintain that their rights as citizens are violated," that they "feel used by politicians, feminists and the media," are "overlooked in decision-making processes regarding juridical changes" and that they are "only listened to and being paid attention to if they say the correct things, i.e. that they find prostitution appalling, that they are victims, that they have stopped selling sex and will never go back, and that they are grateful to the current prostitution policy and to the policy makers."

Obviously, such consequences do not protect sex workers or further the equality of women; on the contrary, they reveal that "asymmetrical criminalization" is paternalizing and harmful to women.

Evaluations of the Swedish law have not provided any credible evidence that the law actually works to reduce prostitution or make it safer. It's often claimed -- with weak evidence -- that Sweden has cut prostitution in half because of the law. But that refers only to street prostitution, which represents a very small percentage of sex work. Swedish authorities have no idea what is happening off-street. Regardless, it's been 13 years since the Swedish law was passed -- if it worked as well as abolitionists claim, one would expect that all forms of prostitution would be pretty much eradicated in Sweden by now, not just half of a street trade that was tiny to begin with.

(Many strong critiques of the Nordic model have been published, including this one from FIRST.)

Joyce Arthur is a founding member of FIRST, a national feminist sex worker advocacy organization based in Vancouver that lobbies for the decriminalization of prostitution in Canada. She works as a technical writer and pro-choice activist.

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Comments

For the sake of providing a balanced perspective on this controversial issue, I'd love to hear the other side of this argument. There are also many studies that show how successful the Nordic model has been. I'd also love to hear from someone who doesn't lead by calling feminists "crazy".

@ Meghan

"I'd love to hear the other side of this argument."

I'd say that "other side" is the dominant position on Rabble/babble, so you shouldn't have too much trouble finding what you're looking for.

The factum of the Women's Coalition for the Abolition of Prostitution contains excellent arguments:

http://casac.ca/sites/default/files/Factum%20-%20Womens%20Coalition.pdf

If anyone is interested you can see plenty of Meghan's response to themes in this article in the comments on her own blog at

www.feminisms.org/4346/who-does-decriminalization-leave-out

 

 

@Freedom 55

"I'd say that "other side" is the dominant position on Rabble/babble, so you shouldn't have too much trouble finding what you're looking for."

I absolutely disagree. Decriminalization / the normalization of prostitution is something that is over-represented in most media in comparison with a radical feminist analysis. Including on rabble. Yes, I have written extensively about this issue on The F Word's blog, but it is nowhere else to be found.

@Sex Worker Humanist

Thanks for linking to my post.

thank you joyce for writing such a great piece. the failings of the 'nordic model" are many and we in canada should not be fooled into accepting another potentially disasterous legalization model which could have the exact opposite affect to what its proponents claim.

its nice to hear from sex workers in sweden who are affected by the laws there.

i challenge peoplecommenting here to find these "numerous" studies proving the nordic model works to protect sex workers. always we hear, its great, studies say so, but then no links or the links are to biased data from known abolitionist researchers or they interpret the data to suit their position leaving out any things which may counter their assertions or they simply ignore questions from sex workers.

 i also think its interesting that megan has argued that there is no war on sex working women by "feminists" (not all feminists are abolitionists) but clearly sets this converstaion up as one side vs another....

so which is it megan? are you waging war on the "other side"? demanding your position be front and center?

this seems to be typical of what sex workers face however. abolitionists claiming to have our "best interests at heart" while framing us a completely victimized and voiceless. this does nothing to honor the experiences of sex workers and strips us of our right to have a say in any actions taken on this issue in the future.

Simply trying to refute the Nordic model isn't helpful to attempting to end violence against women.

If everyone understood that abolition approach is to decrim the women (and who ever) in prostitution - then you can NOT say that abolitionists are against sex workers what so ever.

 

Again I reiterate, as I am trying to make a point: women in prostitution, mostly women of color or native women, mostly working class poor women - these women are oppressed in so many ways. IF we called women in prostitution "VICTIMS" we are calling all native women, all women of color, all poor women VICTIMS - and ofcourse all these women can be intelligent/successful/strong - oppression does not mean victimization.

 

Prostitution is oppression.

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