In defence of the “Canadian model”

Few issues divide progressives quite so markedly as does prostitution policy.

Those in favour of liberalization—including the legal existence and operation of brothels—often contend that sex workers are not only safer under a legalized and regulated regime, but also gain access to benefits (like pensions and social security) previously unavailable to them.

This line of reasoning is constructed upon a particular ideology toward the nature of prostitution: that “sex work is work,” and that agreements between consenting adults (predicated upon the doctrine of “personal choice”) warrant no further critique.

Denunciations of abolitionists that emerge from this side of the debate are often rancorous, attributing to opponents of the sex industry all manner of malign intentions, including, but not limited to:

“Having never worked in the sex industry themselves, they have no right to express their opinion.”

“They are trying to impose a distorted set of values on sex workers.”

“They seek to deny us agency and personal autonomy.”

“They want to starve us of our livelihood.”

“They are siding with the socially conservative right to advance a ‘moralizing’ agenda.”

“They don’t perceive us as human beings with labour rights.”

“They want to put our lives in danger.”

“They are really misogynists, ‘whoreophobes,’ or worse, shills for a ‘rescue industry’ from which they personally profit.”

“They are moral prudes who hate sex.”

Amsterdam's (in)famous Red Light District. Image c/o pink fuzzy rat/flickr

Amsterdam’s (in)famous Red Light District. Image c/o pink fuzzy rat/flickr

The other side of the debate

In contrast, abolitionists identify several potential pitfalls in the legalization model.

For one, the evidence that full legalization genuinely leads to enhanced safety for prostituted individuals is unpersuasive. One wide-ranging Harvard study, published in 2003, suggests that they often experience trauma and abuse regardless of whether the prevailing legal regime is one of prohibition, partial decriminalization, or legalization/regulation/licensing.

Even more fundamentally, though, abolitionists contend that full legalization is a barrier to promoting meaningful equality between the sexes—the foundational purpose of feminism. It would be intellectually dishonest to deny that the vast majority of people offering sexual “services” are women and girls, and that the vast majority of clients are men. Further, in Canada, an inordinate number of women and girls in the sex trade are Indigenous, while in Europe and the Middle East, the same can be said of women from eastern Europe and various countries in Africa.

Neither of these circumstances is attributable to chance, abolitionists argue; rather, both owe to a legacy of colonialism and racism, along with a prevalent expectation among men of entitlement to women’s bodies. Legalization of prostitution only serves to validate this expectation.

The abolitionist camp questions the doctrine of “choice” when it comes to prostitution, pointing out that there are numerous extenuating circumstances—including poverty, drug addiction, and various forms of marginalization—that may compel women to enter the sex trade. Importantly, legalization does nothing to mitigate demand for the sexual “services” of these women, and has in fact yielded increases in demand, scale of the sex industry, and sex tourism. In turn, this drives street prostitution, human trafficking, and underage participation in jurisdictions where prostitution is legalized, in spite of extant laws that specifically prohibit those transgressions.

Bill C-36 leaves much to be desired, but let’s be honest about the alternatives

Proponents of legalization raise several compelling arguments. Prostitution has literally been around for centuries, they assert; to attempt to abolish it seems beyond quixotic. By criminalizing participants in the sex trade (including pimps and johns), we drive prostitution underground, where it is more difficult for sex workers to “screen” clients, hire security guards to protect them, etc. Besides, who are we to question how a person chooses to pay the bills in the context of capitalism?

But if one is chiefly concerned with promoting equality between the sexes, legalization is counterproductive. It reinforces the (almost exclusively) male perception that paying for sexual access to a woman’s body is morally and socially kosher, and that deriving unearned rents from a woman’s sexual services (i.e. pimping) is a legitimate business endeavour.

Instead of giving pimps and johns a free ride, the Nordic model (as practiced in Sweden) has succeeded in reducing the domestic market for prostitution—which may partly explain why many sex industry advocates are vocally and adamantly opposed to reforms in that direction.

This brings me to my first pair of questions for proponents of New Zealand- or Holland-style legalization:

Are you comfortable with living in a society in which pimps are considered legitimate businessmen, and johns legitimate customers?

and

How do you feel about the prospect of Canada becoming a destination for sex tourists?

While you can probably guess where I stand on these questions, I understand that some readers of this post will answer “Yes” and “Just fine,” respectively. Okay. But hopefully you will at least refrain from dismissing the concerns of those who are decidedly less enthusiastic about these possibilities.

Let’s examine another scenario. Imagine that a sex worker consents (to the extent that s/he can consent) to sex with a client. Now, suppose that, at some point during the encounter, the seller of sex withdraws consent. If the sexual contact were to continue beyond that point, it would fall under the category of sexual assault.

Suppose, for the sake of argument, that said victim of sexual assault decided to report the crime perpetrated against h/er to the relevant authorities. As we all know, in Canada and most other countries, persons who stand accused of serious crimes are considered innocent until proven guilty, beyond a reasonable doubt, in a court of law. What standard of evidence do you suppose a sex worker would need to marshal in order to prevail in such a case?

Assuming that the odds would be stacked against the sex worker, s/he would be unlikely to report the incident in the first place, let alone take her abuser to trial. The probability of securing a conviction against h/er perpetrator would be minuscule—which necessitates the question:

Are you prepared to risk creating a legal loophole by which men can pay to rape women and reasonably expect to get away with it?

I’m not suggesting that all sexual activity that takes place in the context of “sex work” is necessarily rape. And I’m well aware that prostituted people regularly experience rape and other forms of abuse under the status quo. But I do believe that the decriminalization of pimps and johns would indulge rape culture and male sexual entitlement to an unacceptable degree.

Legalization for purposes of “harm reduction” does not necessarily equal endorsement by the state. Or does it?

One argument in favour of legalization or decriminalization of some illicit drugs, is that governments do not endorse the use of a particular substance or activity by legalizing it. For example, even though alcohol and tobacco are legal, one would be hard pressed to find elected officials who advocate their use.

This is true, but there is room for a range of opinions between unreserved approbation and outright condemnation. Even if prostitution were legalized, for instance, it would likely occupy a different position on that spectrum of opinion than would tobacco or alcohol.

Numerous politicians have been elected who were smokers at the moment of their inauguration (including U.S. president Barack Obama in 2008). Similarly, it is unlikely that a public figure who enjoys the occasional libation would elicit much censure.

But how might Canadians react to a prime ministerial candidate who sought out the services of a sex worker?

Whether you consider it a product of stigma, or of legitimate moral qualms, the public’s aversion to prostitution would almost certainly outweigh its distaste for alcohol or tobacco. Is there any legitimacy to these feelings? Or should we simply suppress them?

When did “morality” become a dirty word?

There is no doubt that harm reduction is a legitimate goal. In the case of safe injection sites—like the Downtown Eastside Insite facility—harm reduction’s benefits for people suffering from addiction are considerable and well documented. Some advocates of legalized prostitution are understandably inclined to view brothels in a similar light.

But I would draw a few crucial distinctions: sex workers are human beings, not substances or commodities to be controlled and distributed; as I’ve already noted, the evidence that legalization of prostitution leads to absolute harm reduction is unconvincing; and the clients who seek the services of sex workers are generally not addicted to sex.

This brings me to a concept that advocates of legalization too often neglect to consider: the idea that men are, and ought to be, responsible for the attitudes we hold toward women.

Ours is a culture in which sexual harassment, sexual assault, domestic abuse, and other forms of gendered violence are commonplace. The vast majority of perpetrators of these crimes are men and boys, and the vast majority of victims, women and girls. The ideology that underpins various forms of violence and abuse directed at women combines patriarchy, toxic masculinity, male entitlement to female sexuality, and often, racism.

When it comes to policy around prostitution, I am aware of two paths that do not involve the criminalization of prostituted people. One is to decriminalize pimps, johns, and sex workers, and permit the operation of brothels; the other is to tackle demand by targeting johns and pimps (which needn’t be accomplished through incarceration; steep fines and education programs would probably do the trick), actively dissuading men from paying for sex, and providing exit programs and social services for those who opt to leave the sex industry.

However, the first of these two paths validates male entitlement to sex, and the tendency to objectify and commodify the female body. I believe that many men who exhibit these tendencies either regard their female counterparts as less than fully human, or that they subdivide women into categories: fully human, and not-quite-fully human.

Can there be any objection to the moral conviction that all women deserve better than to be regarded as subhuman?

Legalization represents, in effect, a moral abdication, a surrender to the convenient illusion that the male libido is an immutable, constant force of nature that men cannot control. This mentality also erases male agency—interesting, given that the denial of sex workers’ agency is a charge that advocates of legalization commonly level against abolitionists.

What is the state’s role in a legalized environment?

It is common for proponents of legalization to call for non-intervention by the state in the lives of sex workers. But this position, too, is questionable.

Even in the most neoliberal of neoliberal free-market capitalist theories, the state (or some variant thereof) serves as an arbiter, a facilitator, a keeper of contracts, a “night watchman,” a theoretical monopolist of violence. Its courts enforce the law and administer justice. Its lawmakers determine what is or is not permissible. Its mandarins dispense or withhold taxes, levies, quotas, regulations, charters, licenses, tariffs. They solemnly assess the propitiousness of myriad departments, demographics, organizations, corporations, and industries, and their assessment forms the scaffolding of the national economy.

In other words, the state may have no direct role in the transaction between a sex worker and h/er client, but it does set the stage for that transaction.

Should the state elect to liberalize prostitution laws, as in New Zealand, Holland, Germany, or parts of Australia, it confronts a sort of Hobson’s choice: to tax or not to tax, to regulate or not to regulate.

If the state opts to tax, it will have added yet another morally dubious source of revenue to its budget; a state-as-pimp sort of dynamic. If it opts not to tax, it will have effectively legitimated a tax-free industry predicated on sexual exploitation, an industry that may well become the most economically “rational” career choice for millions of young women—particularly in an economy dominated by low-paid, part-time jobs, and populated by university graduates with unwieldy student debt burdens.

If the state opts to regulate, it will have no choice but to train and hire an army of inspectors to ensure the safety of brothels. But what guarantee is there that sex workers will not resort to street prostitution in order to avoid surrendering a portion of their wages to the brothel staff? Should that happen, what can the state realistically do to “keep sex workers safe,” as the presumption goes? Should street prostitution be prohibited, or would that merely drive it “underground”? Should there be any role for the state in keeping street prostitution beyond the ken of children, as Justice Minister Peter MacKay and his cohorts evidently believe, and as 89 per cent of Canadians concurred in a recent poll?

There is no consistently effective way to ensure the health and safety of sex workers, other than to offer them a manageable pathway out of prostitution. And as the War on Drugs has demonstrated, attacking the supply of a particular good or service is frequently counterproductive; addressing the demand for that good or service is a more effective approach.

The Harper government’s Canadian model, despite its flaws, does indeed target demand. By refusing to let clients and pimps off the hook for perpetuating the sex industry at society’s expense, the Harper administration has taken a modest and imperfect step in the right direction.

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