Deadly Inertia:A history or constitutional challenges to Canada's criminal code provisions on prostitution

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Deadly Inertia:A history or constitutional challenges to Canada's criminal code provisions on prostitution

http://24.85.225.7/lowman_prostitution/HTML/deadly_inertia/Lowman_Deadly_Inertia.pdf

 

by Dr. John Lowman

The legal status of prostitution2 varies internationally more than almost any other kind of human activity. At one end of the spectrum are countries like the Netherlands and New Zealand where prostitution is formally lawful, including the operation of brothels and other sex-service businesses. In the center are countries like Canada and England, where the acts of buying and selling sex are legal, but brothels, procuring and living on the avails are prohibited. At the other end of the spectrum is the United States, where selling sexual services is criminalized in all but one state, and buying sexual services is criminalized in many. In 1999 Sweden was the first country to adopt the radical-feminist version of prohibition/abolition, which involves criminalizing sex buying and third-party facilitation of prostitution while decriminalizing the sale of sex on the ground that prostitutes are victims of exploitation and violence against women. From this perspective, prostitution is violence against women.

The apparently irreconcilable arguments supporting prohibition and decriminalization are currently being put on trial in Canada as a result of a series of challenges to the constitutional validity of its prostitution laws. In the wake of more than 200 homicides of sex workers over the past twenty-five years, two groups of women are suing the federal government for enforcing prostitution laws that they allege violate their constitutional rights, including their very right to life itself.3 If they are successful and the laws are struck down, the Canadian state will be forced to either criminalize prostitution, or it will have to institute some form of regulation at the provincial and municipal level.

In this essay I describe the debate over prostitution law reform that culminated in 2006 with all four federal political parties agreeing that Canada's prostitution laws are "unacceptable," but unable to agree about how to change them. The fundamental controversy over prostitution law reform that has led to this deadly inertia exemplifies the clash between abolitionist and pro-choice feminists that has been replayed around the world in numerous settings over the past twenty-five years, except that in this instance Canadian courts will have to evaluate the evidence being presented by the two camps. The essay concludes with an update on the progress the two Charter challenges through the Canadian court system.