Should Prostitution be Decriminalised Dalhousie Legal Aid March by yaofenji


									Should Prostitution be
   Michael Goodyear, Department of Medicine,
             Dalhousie University

  Dalhousie Legal Aid Service AGM March 18th 2008
Eliot Spitzer, Ashley Alexandra Dupre
Contractual Exchange Involving
        Sexual Service
             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.
“Illicit intercourse” has been held to mean
intercourse outside the bonds of marriage
Chapman (1958) QB 100
Is this the Right
     Does Law have a Role in the
       Regulation of Prostitution?
                           “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.

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

                                                               Brian Dixon 1916-98
Marcia Neave AJ

      The law shapes but does not determine the extent of

      Inquiry into prostitution: final report October 1985
      Government Printer, Melbourne, Victoria
The Nature and Purpose of Law
Criminal Law
 Demonstration of Harm

 Sufficient for State intervention

 Proportionality of intervention (remedy)

 Lack of Alternate Remedy

 Demonstration remedy can achieve Objectives

              -Legitimacy of laws-
     Is Criminal Law Necessary?
   Utilitarian (Mill)
   Marxist
   Anarchist (Godwin)
   Utopian

       Crime is a product of conflict and laws are
        unnecessary in a political system built on
The Nature and Purpose of Law
   Principle of Harm (Mill, Feinberg)
   Principle of Offence (Feinberg)

   Principle of “De minimis non curat praetor”
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.
The scope of freedom of expression does
extend to the activity of communication for
the purpose of engaging in prostitution.”
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. 195.1(1)(c) of the Code are
 justifiable under s. 1 of the Charter.”

 Wilson and L'Heureux-Dubé JJ. dissenting
Reference re ss. 193 and 195.1(1)(c) of
   the criminal code (Man.), [1990]
 Per Wilson and L'Heureux-Dubé JJ.

 s. 195.1(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. 195.1(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.
Gender and the Law

                Dickson C.J. and La Forest and
                         Sopinka JJ.

                Wilson and L'Heureux-Dubé JJ.
 Charter of Rights of Freedoms
Ss 1,
2b, 7, 15
1. 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.
 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
      Charter of Rights of Freedoms
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.
 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:
- (i) the measures adopted must be rationally connected to the
- (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
    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
         Morality and the Law
   What is ‘morally wrong’?
   Whose framework judges what is ‘wrong’?
   Are morals universally held?
   Should private and public morality be
  Wolfenden Committee 1954-7
                                  Terms of Reference

                       To consider:

                         (a)        the law and practice relating to
                         homosexual offences and the treatment of
Lord Wolfenden (1906-85) 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
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.”
         Gender and the Law

Wolfenden Recommendations:

(a) Decriminalise homosexuality
(b) Tougher penalties for prostitution
shaping the normative?
       Morality and the Law
“Morality is not the law’s business” (Mill)
Lord Wolfenden

Reframing prostitution as Public Order
(or did it?)
       Morality and the Law
Hart-Devlin-Dworkin Debates
    Professor HLA Hart, Oxford 1907-92
         Law, Liberty and Morality 1963
    Lord Patrick Devlin 1905-92
         The Enforcement of Morals 1959

          To what extent are private morals the
          affair of the State?
P E Trudeau 1919-2000

“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
        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.
     Othering, Social inclusion and
   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
   The UK is pursuing mandatory Moral
    Rehabilitation, reintroducing the medical
    model of prostitution
                    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
Symbolic or Instrumental Law?
   Ineffective in achieving stated purpose
   Not accepted by many
   Ignored by public
   Indifferently enforced

   ? Role in reshaping the normative
        Beyond Decriminalisation
   Removal of behaviour from the Criminal
    Law, often shifts it into Civil Law
     Taxation
     Employment Standards
     Occupational Health and Safety
     Licensing and Inspection
     Zoning
     Social benefits
     Contractual protections
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
             Conclusions (1)
   Criminalisation has not reduced
   Creates vulnerabilities
   Corrupts enforcement agencies
   Is variably enforced geographically and
   Is not evidence based or rational
             Conclusions (2)
   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
              Thank You!


To top