Canadian Supreme Court strikes down prostitution laws

Something interesting happened in Canada this week, and for once it had nothing to do with Justin Bieber or Captain Kirk. Their Supreme Court effectively struck down the nation’s laws involving prostitution, though the definitions of the specific laws in question aren’t as straight forward as the title might suggest.

The Supreme Court of Canada has struck down the country’s major prostitution laws, saying that bans on street soliciting, brothels and people living off the avails of prostitution create severe dangers for vulnerable women and therefore violate Canadians’ basic values.

Chief Justice Beverley McLachlin, writing for a unanimous court, stressed that the ruling is not about whether prostitution should be legal or not, but about whether Parliament’s means of controlling it infringe the constitutional rights of prostitutes.

“Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes,” she wrote.

“The prohibitions all heighten the risks. . . . They do not merely impose conditions on how prostitutes operate. They go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky – but legal – activity from taking steps to protect themselves from the risks.”

As you might infer from the judge’s comments, prostitution itself is apparently already legal in Canada. (Keeping in mind that Canadian law isn’t my strong suit. And who knows what those Canadians are up to anyway?) The laws in question dealt more with the ancillary activities surrounding the practice of the trade and mitigating the effects it has on the community, all of which were challenged on the unintended negative consequences they produced. For example, one law criminalized anyone “profiting from” prostitution. It was intended to eliminate the practice of pimps controlling the prostitutes and taking their money. But it also wound up making it illegal for anyone to provide security services (such as bodyguards) to the prostitute, leaving them more vulnerable to violence.

Another prohibited the establishment of brothels, seeking to prevent the negative impact on neighborhoods resulting from the trade. But this effectively put the prostitutes back out on the street. And of course, “street soliciting” was also prohibited, resulting in something of a conundrum. All in all, the court determined that the negative effects on the “sex trade” workers outweighed the possible benefits to the community.

None of this, though, addresses the underlying question of whether prostitution should be legal in the first place, a subject which Doug Mataconis takes up at Outside the Beltway.

All of this, of course, brings up the philosophical question of whether prostitution ought to be legal at all, whether in Canada or anywhere else. The libertarian answer, of course, would be that women ought to be free to engage in any profession they wish and that individuals ought to be free to engage in any voluntarily transaction they wish, as long as there isn’t force or fraud involved. The traditional objections to legalization are that that prostitution is often a profession that women are forced into, often when they are underage, and that it involves a significant amount of violence, force, and victimization. Much of those negative impacts, of course, are arguably an outgrowth of the fact it is illegal in most places. If you look at places where prostitution is legal, such as Nevada and certain places in Europe, many of those negative aspects of prostitution disappear for the most part, especially if there at least some regulation involved that is designed to ensure the health and safety of the women involved, and to ensure that people under 18 are not being victimized. The most significant point, though, seems to me to be that we are talking about what is called, fairly accurately, the world’s “oldest profession.” Whether it is legal or not, there is seemingly no place in the world where it doesn’t exist. Indeed, it’s even been found to exist among primates who have been taught how to use money. Given all of this, one wonders what the value in trying to ban the practice actually is.

Randy gibbons with credit cards aside, the idea of legalization – or at least decriminalization to some degree – of prostitution in the United States is one we’ve been wrestling with for a while. I think it’s been fairly well established that the lives of real life prostitutes are rarely if ever the Cinderella romance tales of the “hooker with a heart of gold” described in Pretty Woman or Risky Business. But Doug does have a point in saying that a large number of the problems arising from the trade probably have their roots in the opportunities presented to other criminals by the fact that the business is illegal. And it’s equally true that a significant percentage of the women (or even men) who have “willingly” gone into the trade didn’t do so because it was a lifelong dream. Desperation was probably the cause in the majority of these cases.

But from the small L libertarian point of view, I’ve always had to ask what business the government has to tell someone that they can’t engage in that kind of commerce if it’s entirely consensual and results in the “worker” in question turning a profit. The demand is obviously there, has been for all of recorded history and is unlikely to go away any time soon. When they dug out the ruins of Pompeii, buried by a volcano almost 2000 years ago, one of the first buildings they found was a brothel. So is the goal for us to continue to suppress the activity as much as possible or to bring it out of the shadows, make it as safe as possible for those plying the trade and eliminate the profit motive for those who would exploit or commit violence against the prostitute for their own gains?

I wonder what the United States Supreme Court would say if the same question was put to them?

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