Citizen Editorial - The law, prostitution and wishful thinking

[Guest Ou**or**n]

From today's Citizen:

[url]http://ottawacitizen.com/news/politics/editorial-the-law-prostitution-and-wishful-thinking[/url]

The federal government is about to table legislation to replace three Criminal Code provisions that were struck down in a Supreme Court decision last December. Those provisions made it an offence to keep or be in a bawdy house, to live on the avails of prostitution, or to communicate in public for the purposes of prostitution.

It was not necessary to replace those provisions at all. Prostitution involving consenting adults was, and remains, a legal activity. Exploitation and underage prostitution were, and remain, illegal. The government could have chosen to simply let those three laws about how and where prostitutes do business pass into history. It could have left the regulation of prostitution, and the mitigation of effects on neighbourhoods, up to the provinces and municipalities. Instead, it chose to create a new law.

As Parliament evaluates that new law, it should bear in mind the reasons the court struck down the old ones.

The December decision rested on the guarantee of â??security of the personâ? in the Canadian Constitution. The laws, the Court said, â??prevent people engaged in a risky â?? but legal â?? activity from taking steps to protect themselves from the risks.â?

For example, the law against communication tends to push transactions into the shadows or force sex workers into making rushed decisions. â??By prohibiting communicating in public for the purpose of prostitution, the law prevents prostitutes from screening clients and setting terms for the use of condoms or safe houses,â? the Court said.

Any law that inhibits communication could cause the same harms. No potential client is going to want to have a conversation setting safe terms, while looking over one shoulder for police. And legalizing safe houses would be of no real effect if using them were tantamount to walking into a police trap.

Advocates for criminalizing the purchase of sex argue that if Canadaâ??s goal in making such legislation were to eliminate prostitution, that would satisfy the courts even if the laws continued to create harms, because the purpose of the old laws was merely to reduce nuisance. If the government believes it has a plan to eliminate prostitution, it had better be prepared to back up that extraordinary claim. It was already illegal to talk to a prostitute about buying sex, and that hasnâ??t stopped it from happening. Good law cannot be based on wishful thinking; it must be based on a clear-eyed understanding of the likely consequences.

If the government gets this wrong, that could cause not only another generation of court cases, but more deaths and disappearances on the street.