Ever since the Ontario Superior Court struck down laws relating prostitution earlier this week and the federal government announced their plan to appeal, it threw open the debate about if and how we should regulate sex work in Canada. Like the general public, women’s and feminist organizations are divided. The Sex Professionals Association of Canada hailed the decision as a step towards recognition of sex work as a legitimate profession. On the other hand, the Canadian Association of Sexual Assault Centres (CASAC) put out a release expressing their outrage at the decision for legitimating pimps, organized crime, and trafficking.

It’s taken me a few days to write something on this because it’s easy to forget in this situation that a good legal decision might look a bit different than a good policy decision. The judge, Justice Susan Himel, had one decision: are the laws justified to protect the public interest or are they violating sex workers’ right to security of person? She didn’t have the ability to make a better policy regime for sex workers. That responsibility belongs to the federal government, and it’s a responsibility they’ve been shirking for years. In 2006 a parliamentary committee reported that the status quo was untenable and made it “virtually impossible to engage in prostitution without committing a crime” though prostitution itself is legal. However, no action was taken by the government.

So Justice Himel made the right choice. She believed the 3 laws, particularly the law prohibiting communicating in a public place for the purposes of prostitution, did make sex work a lot more dangerous than it has to be. It’s legal to sell sex and therefore sex workers have the right to the same security of person as any other Canadians. The judge made the right legal and ethical decision.

But it may be a mistake to think that this ruling deals with all the issues sex workers face or that it will suddenly solve problems of violence, exploitation, and abuse. Even the lawyer for the sex workers who filed the suit, Alan Young, admits the ruling is no panacea:

The case does not solve the problems related to prostitution, he said. “That’s for your government to take care. Courts just clean up bad laws.”

“So what’s happened is that there’s still going to be many people on the streets and many survival sex workers who are motivated by drugs and sometimes exploited by very bad men. That’s not going to change,” Young added. “Here’s what changed. Women who have the ability, the wherewithal and the resources and the good judgment to know that moving indoors will protect them now have that legal option. They do not have to weigh their safety versus compliance with the law.”

Vancouver-East MP Libby Davies told CTV news: ”We need to distinguish between what is consenting between two adults and what is exploitative, coercive and violent and focus the law-enforcement on those aspects.” She’s right, but the distinguishing is where it gets tricky. While there clearly are people who choose to be sex workers (for more on this, check out Jeffrey and MacDonald’s research with Maritimes sex workers), there are also those who are trafficked into prostitution or forced into it by economic circumstances, sometimes compounded by drug addiction, mental health issues, and/or racism. Poverty can be a form of coercion, and while that’s no reason for maintaining the harmful patchwork of anti-prostitution laws that we’ve had, it’s reason to see the legal fix as just one piece of the puzzle.

So where do we go from here? It looks like the court decision is going to finally result in some policy-making at the federal level. Unfortunately, with the Conservatives in power it looks like the government will be fighting this ruling tooth and nail in the name of prostitutes’ “safety”, essentially arguing that some form of criminalization is the best approach, while all the evidence shows that it doesn’t act as a deterrent and only serves to put prostitutes at unnecessary risk. If we want to empower women, criminalization is no way to go. Historian George Ryley Scott concludes his research on prostitution around the world by stating that “the most that can be expected from punitive and repressive measures…is the driving of prostitution into underground channels” (1996, p. 181). As Justice Himel pointed out, one only needs to look at missing and murdered women in the Downtown Eastside to realize that.

So we’re left with legalizing and regulating prostitution, as in the Netherlands or Nevada, where brothels are legalized. It sounds progressive on the surface – totally legitimating the profession – but some worry that depending on the way the regulations are crafted it could give more power to pimps. Some reports show it hasn’t totally curbed violence against sex workers. Farley’s research found that most women in legal brothels in Nevada had pimps outside, and that rights are severely restricted, with women often forced to live in the brothels and work 12- to 14-hour shifts. In the Netherlands, the average age of death of sex workers is 34.

More widely endorsed and the system I’d prefer is decriminalization, which is supported by the Canadian Medical Association, the WHO, and UNAIDS when exploitation is not involved. It’s believed that decriminalization will reduce stigma and enable sex workers to organize for security and labour rights.

But some women’s groups believe decriminalization gives tacit approval to the trafficking of women and exploitation of sex workers. A slight variation on full decriminalization is the Swedish solution to make it criminal to buy but not to sell sex, an approach championed by Benjamin Perrin in the Globe and Mail and organizations like Vancouver Rape Relief. It’s a somewhat conservative approach that assumes all sex workers are victimized, but it’s possibly more politically palatable than total decriminalization and statistics out of Sweden seem promising. That said, I do wonder whether it would just serve to continue to deny sex workers agency and drive prostitution into unsafe areas.

I’m glad Himel’s decision has forced us into having this needed national discussion. I definitely don’t agree with criminalizing sex work where there is consent and choice, and while I’m most supportive of decriminalization, I recognize underlying issues of poverty, racism, and sexism will continue to make any material changes difficult, even if Justice Himel’s decision results in national legal reform.

What I’d like to see is for policy-makers to work with both feminist and sex workers’ rights groups to create broad-based policy initiatives responsive to the needs and views of sex workers. While moves to decriminalize prostitution should be part of these initiatives, recognizing sex worker diversity means also recognizing the needs for services and programs to help those women who choose to leave the sex trade. Finally, dealing with the harms associated with prostitution will involve a concurrent movement towards gender equality, which will require social as well as legal change.

-Jarrah