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Is buying sex a crime or a social problem?

The House of Commons will resume September 15th and take its turn with Bill C-36, Canada’s new prostitution law. The Protection of Communities and Exploited Persons Act was developed in response to a Supreme Court ruling that struck down key elements of the current law and gave parliament one year to replace it. That year expires in December.
Bill C-36 is the latest in a long history of attempts to find good solutions to the intractable problem of prostitution. On my bookshelf, for example, is a two-volume report on Prostitution and Pornography in Canada, dated 1985. Only a few of its recommendations were implemented. Since then parliamentary study committees, police forces, the Robert Picton Inquiry and court cases have all grappled with this issue. Cities such as Edmonton have taken local initiatives to reduce the problems associated with prostitution on city streets, with varying degrees of success.

Bill C-36 promises a new approach. It’s a mix of the so-called Nordic approach with elements of a harm-reduction approach in what is billed as a made-in-Canada solution. Will Bill C-36 succeed where previous attempts have not? Key features of the new law give reason to hope that it might, but problematic details may scuttle this attempt before it has time to be tested for effectiveness.

Defining ‘sexual services’
The good news is tougher legal sanctions that will target exploitation. If the bill becomes law, police and courts will have stronger tools to convict those who lure and force young women or men into prostitution and profit from the exploitation of others. The challenge will be enforcement, as it always has been. The chances of convicting predators should be higher, however, if the law survives a constitutional challenge.

Following the Nordic approach, the law makes the purchase of sexual services a crime, punishable by fines and then prison time for men who use prostitutes. The Canadian Council of Churches (CCC), which includes the Christian Reformed Church, supports the central principle here – namely, that the purchase of sexual services is inherently a violation of the dignity and rights of another person, most often young women. It’s based on the relative success that Sweden has had with a strategy that combines criminal sanctions against users, helping women get out, community prevention initiatives and public education – all designed to make prostitution socially unacceptable.

One worrying component of Bill C-36, however, is that it doesn’t clearly define “sexual services.” This will inevitably lead to court challenges which argue that freely negotiated adult exchanges of money for services such as lap-dancing, strip teases or fellatio should not be criminalized. Without clarity, it will be up to the courts to decide.

Mixed messages
Drawing from the harm reduction approach advocated by many, Bill C-36 exempts communications by the seller from prosecution. Prostitutes will only be charged if they practice in places where children are likely to be. The exemption extends to advertisements by a prostitute herself, although a newspaper that publishes such ads could be charged for benefitting from prostitution. Persons hired by a prostitute for protection or legitimately living with a prostitute are also protected, while the establishment of brothels is prohibited. Does it make sense to criminalize the purchase of a service but permit sellers to promote it? There is a legitimate concern that these provisions will drive the practice further underground as buyers become more clever to avoid getting caught and prostitutes are forced into vulnerable circumstances to connect with their “clients.”

A significant weakness in the new strategy is the use of criminal law as social policy. Putting more people in jail is a brutal and likely ineffective way to change social behavior. The government announced $20 million over five years for specific programs to help women get out of prostitution, which is a positive step, but it has refused to use other tools of governing to reduce demand or improve the conditions for young women in circumstances that make them vulnerable to prostitution, such as poverty and the lack of safe and affordable housing when they need to leave abusive situations. The Swedish legal approach has worked because it is part of a very comprehensive social strategy based on full recognition of women’s rights.

Comprehensive strategy
In other words, the success of Bill C-36 depends on a significant shift in social attitudes and social policies to reduce demand by men and provide practical options for women who are likely to get caught in prostitution traps.

In a letter to Minister of Justice Peter MacKay, the CCC proposed additional measures for a comprehensive strategy, such as public education, rehabilitation for offenders, poverty reduction for women and training for police officers. These are areas of public policy that have shrunk in recent years and are not likely to expand.

Faith communities in Canada can contribute to the necessary change in social attitudes to make buying of sexual services socially unacceptable. While moralistic messages are often dismissed in our pluralistic society, Christians can help to promote the dignity and rights of all persons and help to build a society that enables all people to live with dignity.

“We believe that we need to stop viewing prostitution as a vocation of choice,” says Rev. Dr. Karen Hamilton, General Secretary of the CCC, “and instead view it as an affront to gender equality and as violence against women, children and marginalized populations.”

  • Kathy Vandergrift, a public policy analyst, brings experience in government, social justice work and a Master’s Degree in Public Ethics to her reflections.

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