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Should Prostitution be Decriminalised? Michael Goodyear, Department of Medicine, Dalhousie University Dalhousie Legal Aid Service AGM March 18 th 2008.

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Presentation on theme: "Should Prostitution be Decriminalised? Michael Goodyear, Department of Medicine, Dalhousie University Dalhousie Legal Aid Service AGM March 18 th 2008."— Presentation transcript:

1 Should Prostitution be Decriminalised? Michael Goodyear, Department of Medicine, Dalhousie University Dalhousie Legal Aid Service AGM March 18 th 2008

2 Eliot Spitzer, Elyssa, Jenna, Sarabeth, Silda Wall Spitzer

3 Eliot Spitzer, Ashley Alexandra Dupre

4 Prostitution Contractual Exchange Involving Sexual Service

5 Prostitution Winter v. Wolfe (1930) 1 KB 549. “Two or more couples having ‘illicit intercourse’ under one roof is a brothel whether or not the women are paid. A place resorted to by persons of the opposite sex” Kelly v. Purvis (1983) 1 All ER 525, [1983] 2 WLR 299 “it is not necessary to prove provision of normal sexual intercourse…It is sufficient to prove that more than one woman offers herself as a participant in physical acts of indecency for the sexual gratification of men” per Ackner L.J., at 671, page 7.

6 Prostitution “Illicit intercourse” has been held to mean intercourse outside the bonds of marriage Chapman (1958) QB 100

7 Is this the Right Question? Does Law have a Role in the Regulation of Prostitution?

8 “We find ourselves in an anomalous, some would say bizarre, situation where almost everything related to prostitution has been regulated by the criminal law except the transaction itself. Brian Dixon The appellants' argument then, more precisely stated, is that in criminalizing so many activities surrounding the act itself, Parliament has made prostitution de facto illegal if not de jure illegal.” Reference re ss. 193 and 195.1(1)(c) of the criminal code (Man.), [1990] 1 S.C.R. 1123, per Dickson CJ at page 44

9 Marcia Neave AJ The law shapes but does not determine the extent of prostitution Inquiry into prostitution: final report October 1985 Government Printer, Melbourne, Victoria

10 The Nature and Purpose of Law Criminal Law Demonstration of Harm Demonstration of Harm Sufficient for State intervention Sufficient for State intervention Proportionality of intervention (remedy) Proportionality of intervention (remedy) Lack of Alternate Remedy Lack of Alternate Remedy Demonstration remedy can achieve Objectives Demonstration remedy can achieve Objectives -Legitimacy of laws-

11 Is Criminal Law Necessary? Utilitarian (Mill) Utilitarian (Mill) Marxist Marxist Anarchist (Godwin) Anarchist (Godwin) Utopian Utopian Crime is a product of conflict and laws are unnecessary in a political system built on concensus Crime is a product of conflict and laws are unnecessary in a political system built on concensus

12 The Nature and Purpose of Law Principles Principle of Harm (Mill, Feinberg) Principle of Harm (Mill, Feinberg) Principle of Offence (Feinberg) Principle of Offence (Feinberg) Principle of “De minimis non curat praetor” Principle of “De minimis non curat praetor”

13 Reference re ss. 193 and 195.1(1)(c) of the criminal code (Man.), [1990] Per Dickson C.J. and La Forest and Sopinka JJ.: “Section 195.1(1)(c) of the Code, but not s. 193, represents a prima facie infringement of s. 2(b) of the Charter. “Section 195.1(1)(c) of the Code, but not s. 193, represents a prima facie infringement of s. 2(b) of the Charter. The scope of freedom of expression does extend to the activity of communication for the purpose of engaging in prostitution.”

14 Reference re ss. 193 and 195.1(1)(c) of the criminal code (Man.), [1990] Per Dickson C.J. and La Forest and Sopinka JJ.: “The limits on freedom of expression imposed by s (1)(c) of the Code are justifiable under s. 1 of the Charter.” “The limits on freedom of expression imposed by s (1)(c) of the Code are justifiable under s. 1 of the Charter.” Wilson and L'Heureux‑Dubé JJ. dissenting

15 Reference re ss. 193 and 195.1(1)(c) of the criminal code (Man.), [1990] Per Wilson and L'Heureux‑Dubé JJ. s (1)(c) fails to meet the proportionality test. s (1)(c) fails to meet the proportionality test. The measures are rationally connected to the prevention of public nuisance caused by street solicitation, but s (1)(c) is not sufficiently tailored to the objective and constitutes a more serious impairment of the individual's freedom than the avowed legislative objective would warrant. The measures are rationally connected to the prevention of public nuisance caused by street solicitation, but s (1)(c) is not sufficiently tailored to the objective and constitutes a more serious impairment of the individual's freedom than the avowed legislative objective would warrant.

16 Held: Dickson C.J. and La Forest and Sopinka JJ. Dissenting: Wilson and L'Heureux ‑ Dubé JJ. Gender and the Law

17 Charter of Rights of Freedoms Ss 1, 2b, 7, The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

18 Charter of Rights of Freedoms The Government bears the burden of establishing that any Charter breach is justified. R. v. Oakes [1986] 1 S.C.R. 103

19 Charter of Rights of Freedoms Section 1 analysis involves a 2-step process. Section 1 analysis involves a 2-step process. 1.First, the objective of the legislation or government action must be shown to be sufficiently “pressing and substantial” to warrant overriding a Charter right. 2.Second, the means adopted to attain that objective must be reasonable and demonstrably justified. 2.Second, the means adopted to attain that objective must be reasonable and demonstrably justified. This step entails a proportionality test in which the courts are required “to balance the interests of society with those of individuals or groups.” This step entails a proportionality test in which the courts are required “to balance the interests of society with those of individuals or groups.” 3 elements must be satisfied: 3 elements must be satisfied: - (i) the measures adopted must be rationally connected to the objective; -(ii) the measures adopted should cause minimal impairment to the right or freedom in question; and - (iii) there must be a proportionality between the effects of the measures limiting the right or freedom and the objective identified as being sufficiently important, and between the deleterious and salutary effects of the measures at issue

20 The Political Nature of Law “The main determinants of criminalization continue to be political opportunism and power, both linked to the prevailing political culture of the country” Andrew Ashworth, Oxford Law School Principles of Criminal Law 2006

21 Morality and the Law What is ‘morally wrong’? What is ‘morally wrong’? Whose framework judges what is ‘wrong’? Whose framework judges what is ‘wrong’? Are morals universally held? Are morals universally held? Should private and public morality be distinguished? Should private and public morality be distinguished?

22 Wolfenden Committee Lord Wolfenden ( ) Terms of Reference To consider: (a) the law and practice relating to homosexual offences and the treatment of persons convicted of such offences by the courts; and (b) the law and practice relating to offences against the criminal law in connection with prostitution and solicitation for immoral purposes

23 Q. (Mrs. Cohen) “Do you think it is possible to stop prostitution, because that is what you are trying to do, are you not? You are going to make it practically impossible. Do you think you are trying to do the impossible?” A. (Alderman Sir Arthur Howard, Westminster City Council): “You assume that prostitution is defined, and that takes us back to the problem we all have to face. There is a persistent inclination in human beings, of both sexes, to indulge in sexual intercourse, despite what laws and Churches have done that persists, and we did not see that there was any prospect of creating any law which would be operable, which would make it a crime. Even if we did think it was possible to create legislation of that sort, we do not believe human nature would change so much that the practice of extra-mural intercourse would slowly disappear.”

24 Gender and the Law Wolfenden Recommendations: (a) Decriminalise homosexuality (male) (b) Tougher penalties for prostitution (female) shaping the normative?

25 Morality and the Law “Morality is not the law’s business” (Mill) “Morality is not the law’s business” (Mill) Lord Wolfenden Reframing prostitution as Public Order Offence (or did it?)

26 Morality and the Law Hart-Devlin-Dworkin Debates Professor HLA Hart, Oxford Law, Liberty and Morality 1963 Lord Patrick Devlin The Enforcement of Morals 1959 To what extent are private morals the affair of the State?

27 “There's no place for the state in the bedrooms of the nation …. what's done in private between adults doesn't concern the Criminal Code.“ Dec. 22, 1967 Criminal Law Amendment Act C-150 P E Trudeau

28 Morality and the Law “The criminal law is a rather ineffective custodian of moral norms, especially when these are disobeyed by many and disagreed with by many more”. Fischer B. Dealing with prostitution in Canada. CMAJ 2005; 172: 13.

29 Othering, Social inclusion and Responsibilisation Vagrancy Act 1824 defines Common Prostitute as a separate class of citizen Vagrancy Act 1824 defines Common Prostitute as a separate class of citizen Since Wolfenden, the moral argument has reappeared in the form of Sexual Domination and Trafficking Since Wolfenden, the moral argument has reappeared in the form of Sexual Domination and Trafficking The UK is pursuing mandatory Moral Rehabilitation, reintroducing the medical model of prostitution The UK is pursuing mandatory Moral Rehabilitation, reintroducing the medical model of prostitution

30 Social Inclusion, Responsibilization and the Politics of Prostitution Reform Scoular and O’Neill Brit J Criminol 2007 Increasing measures towards social control, and emphasising exiting creates a view of citizenship based on ‘responsible’ behaviour and exclusion for those failing to meet this vision, denying cultural citizenship – the right of visibility rather than alienation

31 Symbolic or Instrumental Law? Ineffective in achieving stated purpose Ineffective in achieving stated purpose Not accepted by many Not accepted by many Ignored by public Ignored by public Indifferently enforced Indifferently enforced ? Role in reshaping the normative ? Role in reshaping the normative

32 Beyond Decriminalisation Removal of behaviour from the Criminal Law, often shifts it into Civil Law Removal of behaviour from the Criminal Law, often shifts it into Civil Law Taxation Taxation Employment Standards Employment Standards Occupational Health and Safety Occupational Health and Safety Licensing and Inspection Licensing and Inspection Zoning Zoning Social benefits Social benefits Contractual protections Contractual protections

33 Beyond Decriminalisation Commercial sex: Beyond decriminalisation Sylvia Law. California Law Review 2000 Decriminalization: Sex-work, Human Rights and a New Framework for Law Reform Katrina Pacey. Pivot Law 2006

34 Conclusions (1) Criminalisation has not reduced prostitution Criminalisation has not reduced prostitution Creates vulnerabilities Creates vulnerabilities Corrupts enforcement agencies Corrupts enforcement agencies Is variably enforced geographically and temporally Is variably enforced geographically and temporally Is not evidence based or rational Is not evidence based or rational

35 Conclusions (2) Decriminalisation is a necessary but not sufficient condition to improve the health and well being of sex workers Decriminalisation is a necessary but not sufficient condition to improve the health and well being of sex workers A rights based approach is preferable, that guaranties citizenship, safe working conditions and the right not to be exploited A rights based approach is preferable, that guaranties citizenship, safe working conditions and the right not to be exploited

36 References /Should%20Prostitution%20be%20Decriminali sed /Should%20Prostitution%20be%20Decriminali sed

37 Thank You!


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