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Prostitution: Perhaps no law would be the best law

Trying to regulate the “world’s oldest profession” is feckless.

Nevertheless, Canada is attempting to so do with its latest attempt to drain this swamp; history demonstrates that it will fail. Driven by a December Supreme Court decision striking down the core of Canada’s existing law on prostitution, the government has made another regulatory proposal. But rather than persist in this effort, Ottawa should simply step back and get the government out of the sex industry.

Or, at a minimum, request an advisory opinion from the Supremes on the constitutionality of their latest regulatory exercise. Having already struck down the previous law, the Supremes would owe Canada an expeditious judgment on the current proposal. This new proposed law has a “Groundhog Day” air to it, just begging for years of juridical action before the Supreme Court again strikes it down.

After all, there are issues that are simply too fraught and socially divisive to be resolvable by publicly acceptable legislation.

Canadians are already living with one such issue: abortion. For 25 years, Canada has been unique among Western nations in avoiding the societal anguish over attempting to resolve the socio/religious/political gap between those citizens that are “pro choice” versus those that are “pro life.” During this period, society has essentially accepted “pro choice” as its norm. Although polls continue to indicate dissatisfaction with this implicit outcome, the political atmosphere assures that no acceptable paradigm exists.

Such is also the case for prostitution.

[ David Kilgour: Proposed prostitution law is a step in the right direction ]

Essentially, the most recent polls show, in effect, that men want access to sex partners and not be prosecuted for their desire. Women want men to be restricted in obtaining such access, prohibiting, for example, advertising. Both men and women want sex workers to be protected physically and not prosecuted for their occupational choice.

Canada is attempting, vainly, to square these circles.

Dominatrix Terri-Jean Bedford, who initiated a challenge to Canada's prostitution laws.
Dominatrix Terri-Jean Bedford, who initiated a challenge to Canada's prostitution laws.

And at a point when Canadians are contemplating the decriminalization of marijuana, the government is proposing to criminalize the john who uses a prostitute. This is analogous to arresting drug users, but not drug suppliers and pushers. And, as well, it offers the prostitute the opportunity to blackmail any customer. Bizarre.  

When the one point of agreement is safety for sex workers, such is certainly possible under existing law. There are clear legal punishments for murder, assault with assorted weapons, kidnapping, forcible confinement, rape and other forms of sexual assault, etc.

One could even conceive of a “public-private” franchise corporation to create government operated, inspected, civil-servant designated facilities (akin to fitness clubs) for sex workers. Perhaps not as ubiquitous as the Tim Hortons chain and subject to local zoning restrictions, but having the benefits of corporate franchising with uniform product grading and pricing along with well-trained security and regular medical inspections to assure the health of workers and patrons. After all, if California can now require porn performers to wear condoms during their video productions and one can purchase various mind-altering substances like alcoholic beverages and marijuana under government-controlled conditions, why not such parameters for commercial sexual purchases?

The state of Nevada has adopted such a regulatory approach. There are 19 legally licensed brothels in Nevada employing approximately 200 workers; one has been in business since 1902. Sex workers must be 21 years old and medically inspected weekly for a variety of STDs; condoms must be worn for sex. The facilities pay license fees, but are not subject to “entertainment tax.”

At a point when Canadians are contemplating the decriminalization of marijuana, the government is proposing to criminalize the john who uses a prostitute.

Likewise, for well over a century, beginning with Napoleon, France had hundreds of maisons de tolérance until the 1946 “Marthe Richard law” which reportedly closed approximately 1,200 maisons. The French remain societally ambivalent regarding how to address prostitution, more than occasionally harking back with nostalgia to government-regulated brothels.

And buying and selling sex, including brothel ownership and pimping, have been legal in New Zealand since 2003. Public health laws regulate the industry. Likewise, in Germany prostitution, brothels, and pimping are legal, stemming from liberalized laws in 2001.

To be sure, there may still be those that would prefer to “freelance” their wares. And, as is the case for a number of professions, there will always be dangers. Even RCMP officers can be gunned down in tranquil Moncton. Nevertheless, they would be as protected by the law as are other citizens. What justifies greater protection

The ultimate answer may well be an abortion analogue — no law addressing prostitution and thus its implicit legalization.

After all, as PM Pierre Trudeau noted, “there's no place for the state in the bedrooms of the nation.” 

(Photos courtesy of Reuters)

David T. Jones is a retired State Department Senior Foreign Service Career Officer who has published several hundred books, articles, columns, and reviews on U.S. - Canadian bilateral issues and general foreign policy. During a career that spanned over 30 years, he concentrated on politico-military issues, serving as advisor for two Army Chiefs of Staff. He has just published Alternative North Americas: What Canada and the United States Can Learn from Each Other.