Male Violence Against Women in Prostitution: Weighing Feminist Legislative Responses to a Troubling Canadian Phenomenon

AuthorCorinne E. Longworth
PositionReceived a Bachelor of Arts degree in English and Women's Studies from Simon Fraser University in 2004 and a Bachelor of Laws degree from the University of Victoria in 2009
Pages58-85
58 wAPPEAL VOLUME 15
ARTICLE
MALE VIOLENCE AGAINST WOMEN
IN PROSTITUTION:
WEIGHING FEMINIST LEGISLATIVE
RESPONSES TO A TROUBLING
CANADIAN PHENOMENON
By Corinne E. Longworth*
CITED: (2010) 15 Appeal 58-85
[E]very hierarchy needs a bottom and prostitution is the bottom...
– Andrea Dworkin
INTRODUCTION
Although prostitutionis a divisive issue, the Canadian government may soon have to re-
visit reforming the legislation relating to it. Prostitution predominantly operates “under-
1. Andrea Dworkin, “Prostitution and Male Supremacy,“ in Life and Death: Unapologetic Writings on the Contin-
uing War Against Women (New York: Free Press, 1997); see also Andrea Dworkin, “Prostitution and Male Su-
premacy” (31 October 1992) at 2, online: No Status Quo
.
2. Prostitution is a gendered phenomenon. Although men and transgendered persons are also prostitutes, this
paper focuses on adult women in prostitution since they make up the vast majority of prostitutes in Canada.
This paper does not focus on the sexual sale of girls or boys, which is “sexual exploitation” rather than prostitu-
tion. Also, I have chosen to use the term “prostitution” rather than “sex work” because I f‌ind the commercial-
ization and commodif‌ication of women’s embodied sexuality problematic, as I discuss in this paper. Prostitution
is heavily imbued with violence and I view it as a concrete extension of the greater phenomenon of the femi-
nization of poverty and gender, race, and class hierarchies, among others, within society. I f‌ind the label of “sex
work” problematic because I fear that it will minimize and obscure the realities of violence and hierarchy that
inform prostitution and, instead, legitimate prostitution as a reasonable and/or rational choice for poor women.
3. Recently, the Subcommittee on Solicitation Laws attempted to reform the prostitution laws in Canada, but were
unable to reach consensus on how to do so. The Subcommittee noted that, although they heard from approxi-
mately 300 witnesses, reaching consensus was stalled by the diverging philosophical views of witnesses
* Corinne E. Longworth received a Bachelor of Arts degree in English and Women’s Studies from Simon Fraser
University in 2004 and a Bachelor of Laws degree from the University of Victoria in 2009. She wrote this paper
as a second year law student under the supervision of Professor Gillian Calder, for whose insights, suggestions
and support she is tremendously grateful. During her law degree, Corinne completed co-op work terms at Jus-
tice for Girls, Bull, Housser & Tupper LLP, and Arvay Finlay Barristers. She is currently completing a clerkship at
the B.C. Supreme Court and will return to Bull, Housser & Tupper LLP to complete her articles in 2011. The
views expressed in this article are her own.
APPEAL VOLUME 15 w59
ground” in Canada, with an estimated  to  percent of it occurring indoors and hidden
from public view, yet its realities are slowly coming to light. e gruesome violence to
which prostitutes are all too oen subjected became apparent when Robert William Pick-
ton, a pig farmer from Coquitlam, British Columbia, was charged for the murder of over
 prostitutes and convicted for the second degree murder of six of the women, who were
all from the Downtown Eastside of Vancouver (the “DTES”).What was originally the “
Missing Womens Case” soon swelled to over , with the mass disappearance and death
of survival-sex prostitutes from the DTES nally making the headlines once their quantum
grew too large to ignore any longer. e fact that it took close to  female prostitutes,
many of whom were Aboriginal and lived in abject poverty, to go missing to spur a media
frenzy is indicative of the lack of concern prostitutes are generally aorded by society.
Surely media and police attention would have been engaged, yet earlier and far more ap-
propriately, if  middle-class, white, non-prostituted women had gone missing.
In a plethora of ways, prostitutes do not enjoy the same privileges, protections and human
rights that many Canadians take for granted. Rather, they are exposed to stigma, male vi-
olence and gender-biased criminalization within Canada. Prostitutes, particularly street
prostitutes, are perhaps the most marginalized women in society, oen intersectionally-dis-
4. Ibid. at 5.
5. Robert William Pickton was convicted of second-degree murder for six of the 26women he was charged with
murdering. See “Pickton found guilty on 6 counts of 2nd-degree murder” CBC News (9 December 2007), on-
line: CBC News .
6. Lori Culbert “Missing women’s resting place marked” The Vancouver Sun (11 December 2007), online:
Canada.com
b307-82eb9f01443d>.
7. The police were informed that female prostitutes were going missing as many as f‌ive years prior to actually
treating the women’s disappearances as a murder case. See “Robert Pickton Murder Trial Begins with Gruesome
Testimony” CityNews (22 January 2007), online: CityNews .
8. Even when the media and the public were told that a police task force of nine off‌icers were investigating, most
of the off‌icers were actually part-time or working two jobs. See Lindsay Kines, Kim Bolan & Lori Culbert, “How
the police investigation was f‌lawed, Too few off‌icers, police inf‌ighting and lack of experience undermined f‌irst
probe into disappearances” The Vancouver Sun (22 September 2001), online: Vanished Voices
.
9. Under the communicating law, s. 213 of the Criminal Code, R.S.C. 1985, c. C-46 [Criminal Code], the convic-
tion rates are higher and the sentences are harsher for female prostitutes. See Challenge of Change, supra note
3 at 52-53. Even though this law can be equally enforced against prostitutes and johns, up until recently, en-
forcement of the law was sexist, with “approximately three prostitutes [being] charged to every trick”: John
Lowman, Street Prostitution: Assessing the Impact of the Law (Vancouver: Communications and Public Affairs
for the Department of Justice, 1990) [Street Prostitution] at 196. As well, for the bawdy house offences, ss. 210
and 211 of the Criminal Code, operators of bawdy houses often escape charges by pleading ignorance to illicit
activities occurring on their premises and instead shifting blame to prostitutes. See Challenge of Change, supra
note 3 at 55. Fran Shaver contends that a “double sexual standard exists” that targets those selling sexual serv-
ices rather than those purchasing them. See Fran Shaver, “Prostitution: A Female Crime?” in Ellen Alderberg &
Claudia Currie, eds., Conf‌lict with the Law: Women and the Canadian Justice System (Vancouver: Press Gang
Publishers, 1993) 153 at 164-65.
and of the Subcommittee’s members. The f‌irst of the two diverging philosophies and accompanying models is
“The Swedish Model,” which views prostitution as a form of violence and is predominantly the abolitionist fem-
inist approach; this approach was ultimately recommended by Conservative Party’s members. Second, the
“Model to Take Consensual Adult Prostitution Out of the Criminal Context” by decriminalization or legaliza-
tion/regulation is supported by decriminalization feminists; it was ultimately recommended by the Liberal, New
Democratic, and Bloc Québécois Parties’ members. See Canada, Subcommittee on Solicitation Laws, The Chal-
lenge of Change: A Study of Canada’s Criminal Prostitution Laws (Ottawa: Standing Committee on Justice and
Human Rights, 2006) [Challenge of Change] at 71-84, 89-92.
advantaged along race, class and ability lines;their status as prostitutes further entrenches
their stigmatization and otherization. e prostitutes who are most visible, street prosti-
tutes, are treated as a nuisance, their lived realities rarely engaging public concern. Fur-
thermore, routine and extreme forms of male violence pervade prostitution, whether
occurring indoors or out.
Yet, prostitutes are oen thwarted from accessing the state protection they require. Re-
porting violence at the hands of a john or pimp reciprocally exposes a prostitute to crim-
inal penalties. As well, prostitutes who do report male violence are oen blamed by police,
as well as the public; they are told that “they asked for it” and are regarded as casualties of
their own choices. e Vancouver Police Department has been routinely criticized for
systemically ignoring prostitutes’ victimization. Not surprisingly, the gender-biased crim-
inalization of prostitutes and their distrust of police encourages adversarial relations be-
tween the two groups.
In many ways, the existing prostitution laws and their gender-biased enforcement within
Canada serve to make prostitutes more vulnerable. Lowman suggests that, in particular, the
communicating law, s.  of the Criminal Code, encourages “a discourse of disposal”
that, along with prostitutes’ alienation from police protection, enables predatory, sexist
men to perpetrate violence and even murder against prostitutes, and feel justied in doing
so. Of course, it is not the laws, but rather certain men, who are ab/using, raping and
murdering prostitutes. Yet, these laws, and the adversarial relations they create between
prostitutes and police, leave prostitutes more vulnerable to bearing the brunt of misogyny
and extreme male violence that stems from gender hierarchy and is amplied, and tar-
geted, because of their stigmatized status.
Given that prostitutes are arguably the most marginalized women in society, prostitution is
an obvious women’s issue. Yet, paradoxically, it polarizes feminists. is philosophical di-
10. Prostitutes, particularly street prostitutes, are often intersectionally-marginalized along gender, race, class, and
ability lines. For example, in Vancouver, as Lee Lakeman asserts, “It is Aboriginal women in the streets and
Asian [immigrant] women in the massage parlours.” See a video clip at http://www.workingtv.com/prostitu-
tion2010.html. Racialized and intersectionally-disadvantaged women are particularly exposed to the feminiza-
tion of poverty: “[i]n 2003, 49.4 percent of all unattached women and 58.8 percent of single mothers were
living below the poverty line…. In 1996, 73 percent of Aboriginal single mothers were living below the poverty
line. In 1998, 85.4 percent of single mothers under twenty-f‌ive were living in poverty.” See Gwen Brodsky &
Shelagh Day, “Women’s Poverty is an Equality Violation” in Fay Faraday, Margaret Denike, & M. Kate Stephen-
son, eds., Making Equality Rights Real: Securing Substantive Equality under the Charter (Toronto: Irwin Law,
2006) 319 at 321.
11. Male violence in the form of verbal, physical, and sexual abuse and murder is perpetrated against prostitutes,
particularly street prostitutes, at alarming rates. See Challenge of Change, supra note 3 at 17-21. For example,
over only a six year span, from 1992 to 1998, more than 86 prostitutes from across Canada were murdered.
See John Lowman, “Violence and the Outlaw Status of (Street) Prostitution in Canada” (2000) 6 Violence
Against Women 987 at 988. I also discuss the lived realities and dangers imbued within prostitution in Part I of
this paper.
12. PIVOT Legal Society, Voices for Dignity: A Call to End the Harms Caused by Canada’s Sex Trade Laws (Van-
couver: The Law Foundation of British Columbia, 2004) at 40-41 [Voices], online: PIVOT
gal.org/Publications/Voices/index.htm>.
13. Ibid.
14. Lowman, supra note 11 at 995-97. See also notes 7 and 8.
15. Criminal Code, R.S.C. 1985, c. C-46, s. 213 [Criminal Code].
16. See Lowman, supra note 11. Pickton allegedly wrote to his pen pal in prison that he was “brought into this
world” to “change this world of [their] evil ways.” See Lori Culbert, “Pickton said he fought world’s ‘evil’: let-
ters” National Post (10 December 2007), online: National Post
.
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APPEAL VOLUME 15 w61
vide has played an unfortunate role in stalling the progress of much needed legislative reform
to the prostitution laws in Canada.In response to failed attempts by Parliament to change
the current laws, two Charter challenges were launched in Canada to interrogate the consti-
tutionality of ss.  to  of the Criminal Code. If the laws are struck down, legislative re-
form will likely be revisited and Canada will be faced with some signicant decisions about
what legal changes should be made. Regardless, the current laws, which expose prostitutes
to violence and murder, as I will discuss, necessitate immediate legal reform.
In this paper, I argue that in order to eect meaningful change, a theoretical reframing of
feminists’ approaches to prostitution is necessary to nd some middle ground in the seem-
ingly irreconcilable debate between feminists. By focusing instead on feminists’ common
goals and problematizing the concept of “choice,” I argue that the best way to move forward
is by embracing the most advantageous legislative model now available: the Swedish model,
which criminalizes the buyers rather than the sellers of sexual services. By incorporating
Margaret Jane Radin’s commodication theory, I argue that a more appropriate approach
to the market alienability of sexuality via prostitution, which oen involves the commod-
ication of society’s most vulnerable members, should be one of incomplete commodi-
cation and asymmetrical criminalization, as I will soon discuss. Furthermore, I argue that
this approach best upholds the purposes behind prostitution legislation (i.e., lessening both
nuisance and exploitation), accepted understandings of contested commodities in Canada
as reected in the Assisted Human Reproduction Act (the “AHRA”) and Canada’s com-
mitment to substantive equality under the Charter more generally.
In Part I, I canvass the current state of prostitution in the Canadian context, discussing the
current laws and analyzing how, in particular, the gender-biased over-enforcement of s.
 of the Criminal Code has made prostitutes more vulnerable and failed to lessen nuisance
and exploitation. Further, I explore disturbing narratives of male violence against prosti-
tutes within Canadian case law to render more tangible the lived realities and dangers im-
17. Challenge of Change, supra note 3.
18. In British Columbia, Katrina Pacey of PIVOT and Joseph Arvay, Q.C. have launched a challenge to ss. 210, 211,
212(1) except for subsections (g)(i), 212(3), and 213 of the Criminal Code on behalf of the Downtown Eastside
Sex Workers United Against Violence Society (“SWUAV”), alleging that these provisions constitutionally in-
fringe ss. 2(b), 2(d), 7, and 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act,
1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11 [Charter]. SWUAV’s Statement of Claim is
available online: PIVOT . However, the challenge was dis-
missed by Mr. Justice Ehrcke of the B.C. Supreme Court on the basis that the plaintiffs lacked both private and
public interest standing: Downtown Eastside Sex Workers United Against Violence Society v. Attorney General
(Canada), 2008 BCSC 1726. SWUAV is appealing this decision and its Notice of Appeal and Factum are avail-
able online: PIVOT -Notice-of-Appeal-and-
Factum.pdf>. In Ontario, Terri Jean Bedford, a former dominatrix, Amy Lebovitch, a current prostitute, and
Valerie Scott, a former prostitute and current Executive Director of Sex Professionals of Canada, have launched
a s. 7 Charter challenge to ss. 210 and 212(1)(j) of the Criminal Code and a s. 2(b) and s. 7 Charter challenge
to s. 213(1)(c) of the Criminal Code: Bedford v. Canada (Attorney General) (23 April 2007), Superior Court of
Justice, Toronto Court File No. 07-CV-329807PD1; the pre-trial decisions regarding intervenor applications are
Bedford v. Canada (Attorney General), [2009] O.J. No. 2739, 2009 CanLII 33518 (Ont. S.C.J.), rev’d 2009
ONCA 669, [2009] O.J. No. 3881.
19. Assisted Human Reproduction Act, S.C. 2004, c. 2 [AHRA]. The AHRA came into force on April 22, 2004, with
the exception of certain sections; to date, ss. 12, 14-19, 24(1)(a), (e), (g), 40-59, 76 of the AHRA are still not in
force. For more details of the legislative and regulatory history of the AHRA, see Quebec (Attorney General) v.
Canada (Attorney General), 298 D.L.R. (4th) 712, 2008 CarswellQue 9848 (C.A.) at paras. 3-16. The constitu-
tionality of the regime has recently been put in doubt since the Quebec Court of Appeal in Quebec (Attorney
General) v. Canada (Attorney General) held that ss. 8-19, 40-53, 60, 61, and 68 of the AHRA were ultra vires
the jurisdiction of the Parliament of Canada to enact. The case has been appealed to the Supreme Court of
Canada.
bued within prostitution. For these reasons, I argue that immediate action and legal re-
form are necessary.
In Part II, I foreground the feminist debate regarding prostitution and attempt to depolar-
ize the “coercion/consent dichotomy” by suggesting instead that “choice” should be
viewed as a spectrum or continuum, rather than a rigid binary. Informing this continuum
of choice are the varied reasons for entry into, and types of, prostitution. However, I will
argue that it would be reminiscent of the failures of second-wave feminism not to center
the interests of the most marginalized women, whose choices are most greatly circum-
scribed. us, I advocate for something similar to the abolitionist feminist approach to
prostitution, with a reframed articulation of choice.” Last, I turn to the common goals of
feminists — eliminating stigma, violence and empowering women in prostitution — ar-
guing that these, as well as the amelioration of the most disadvantaged prostitutes, should
primarily inform feminist struggle for change.
In Part III, I turn to Radin’s conceptualization of sexuality as a contested commodity and
advocate her assertion that “prostitution should be governed by a regime of incomplete
commodication.” By adopting Radin’s assertion that “justice under nonideal circum-
stances, pragmatic justice, consists in choosing the best alternative now available to us,”
and grounded in an understanding that sexism and violence against women are still ap-
parent within Canada, I explore the extra-jurisdictional models currently in place: legal-
ization, decriminalization and asymmetrical criminalization (i.e., the Swedish model).
Ultimately, I nd decriminalization more desirable than legalization, yet still imbued with
the same drawbacks. us, I argue that asymmetrical criminalization, informed by the
Swedish model, is the best legal framework to adopt in Canada.
In Part IV, I explore how adopting the Swedish model would best promote the purposes be-
hind our current legislation and common feminist goals. Not only does the Swedish model
appropriately shi the focus from prostitutes to the men driving demand, it is also conso-
nant with substantive equality and the treatment of similarly contested commodities in
Canada. I explore how these contested commodities are treated under the AHRA and argue
that a similar recognition of the need to protect society’s most socio-economically vulner-
able members from commodication should be aected by asymmetrically criminalizing
prostitution in Canada. Finally, I explore how asymmetrical criminalization is consonant
with substantive equality and armative action under s.  of the Charter, as recently
rearticulated in R. v. Kapp (“Kapp”).
In my conclusion, I suggest that legal reform alone will not be enough to truly achieve fem-
inists’ goals or the purposes that underpin prostitution laws. To be most eective, legisla-
tive change must be buttressed by better social services, education regarding prostitution,
20. Bertha E. Hernández-Truyol & Jane E. Larson, “Sexual Labor and Human Rights” (2005) 37 Colum. Hum. Rts.
L. Rev. 391 at 391.
21. While we may be a long way from “abolishing” prostitution, certainly it can be lessened. Although I do not en-
tirely side with the abolitionist belief that all prostitution, in and of itself, is violence against women, I do think
that it is imbued with violence and a circumscription of choice such that it can often be experienced as violence.
Making prostitution safer while practiced is necessary, but it should not supersede lessening prostitution and
helping women to exit it more generally.
22. Margaret Jane Radin, “Market-Inalienability” (1987) 100 Harv. L. Rev. 1849 at 1921.
23. Ibid. at 1915.
24. R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483 [Kapp].
62 wAPPEAL VOLUME 15
APPEAL VOLUME 15 w63
exit programs and better policing strategies. ese supports will ensure the laws are eec-
tively implemented and womens rights and substantive equality are upheld within Canada.
I. PROSTITUTION IN THE CANADIAN CONTEXT
A. The Current Legal Framework in Canada
Although prostitution is “technically legal in Canada,” certain activities related to it are
regulated indirectly via ss.  to  of the Criminal Code; the purposes behind these
laws are to target prostitution-related nuisance and exploitation. Sections  and  of
the Criminal Code are the “bawdy house laws,” which relate primarily to indoor prostitu-
tion. Sections () and () of the Criminal Code, the “procuring laws,” relate to oences
involving the procurement of adult prostitution, including enticing someone to become a
prostitute or living o the avails of prostitution. Section  specically targets exploita-
tion and those who live parasitically o prostitutes, namely pimps. Cory J., writing for the
majority of the Supreme Court of Canada in R. v. Downey, notes that s. ()(j) is aimed
at remedying the social problem of abuse inicted by pimps upon prostitutes, whom he rec-
25. John Lowman, “Prostitution in Canada” Canadian Criminology: Perspectives on Crime and Criminality
(Toronto: Harcourt Brace, 1991) 113 at 118. See also Reference re ss. 193 and 195.1(1)(c) of the Criminal
Code (Man.), [1990] 1 S.C.R. 1123 at 1162, [1990] 4 W.W.R. 481 [Reference re], aff’d by Lamer C.J. for the
majority in R. v. Corbeil, [1991] 1 S.C.R. 830 at 835, 64 C.C.C. (3d) 272 [Corbeil], where he stated “prostitu-
tion itself is not illegal in Canada.”
26. Corbeil, ibid.; and Reference re, ibid.
27. Challenge of Change, supra note 3 at 37. In regards to nuisance, see Reference re, supra note 25. In regards to
exploitation, which can also be described as parasitically living off the avails of prostitution, see R. v. Downey,
[1992] 2 S.C.R. 10, 90 D.L.R. (4th) 449 [Downey]; R. v. Grilo (1991), 2 O.R. (3d) 514, 64 C.C.C. (3d) 53
(C.A.) [Grilo].
28. Criminal Code, supra note 15, ss. 210 and 211. Section 197(1) of the Criminal Code def‌ines a “common
bawdy-house” as “a place that is (a) kept or occupied, or (b) resorted to by one or more persons, for the pur-
pose of prostitution or the practice of acts of indecency.” Section 210(1) makes “keep[ing] a common bawdy-
house” an indictable offence punishable by imprisonment for up to two years. In R. v. Milberg, Robins J.A. of
the Ontario Court of Appeal stated that in “each case the Crown must prove a frequent and habitual use of the
premises for the purposes of prostitution”: R. v. Milberg (1987), 20 O.A.C. 75, 35 C.C.C. (3d) 45 (C.A.), af-
firming R. v. Patterson, [1968] S.C.R. 157, [1968] 2 C.C.C. 247. For example, a hotel, house, parking lot, or
massage parlour where sexual services are provided would be a “bawdy-house” if prostitution regularly occurs
there: Challenge of Change, supra note 3 at 45; and R. v. Ng, 2007 BCPC 204, [2007] B.C.J. No. 1388. To be
convicted of keeping a bawdy-house under s. 210(1) of the Criminal Code, the accused would have to 1) have
some degree of control over the care and management of the premises and 2) participate to some extent in the
“illicit” activities there: Corbeil, supra note 25 at 834 (cited to S.C.R.). Section 211 of the Criminal Code makes
knowingly transporting someone to a bawdy-house a summary offence.
29. Criminal Code, supra note 15, ss. 212(1) and (3). These are indictable offences punishable by imprisonment for
up to ten years.
30. Section 212(1)(j) of the Criminal Code, supra note 15, relates to living off the avails of prostitution and is aimed
at those who live exploitatively or parasitically off prostitutes, namely pimps: Downey, supra note 27. Section
212 will not criminalize those who can adduce evidence that they have “non-parasitic, legitimate living
arrangements with prostitutes”: Downey, supra note 27 at 36-39 (cited to S.C.R.). In Downey, Cory J. held for
the majority of the Court that s. 212(3) of the Criminal Code infringed s. 11(d) of the Charter, but was upheld
under s. 1. Section 212(3) states that “[e]vidence that a person lives with or is habitually in the company of a
prostitute or lives in a common bawdy-house is, in the absence of evidence to the contrary, proof that the per-
son lives on the avails of prostitution.” Cory J. held that s. 212(3) was not an unreasonable inference; it was a
rebuttable presumption that an accused could easily displace by providing evidence to the contrary. Although
this reverse onus infringed an accused’s right to be presumed innocent under s. 11(d) of the Charter, it was up-
held under s. 1 of the Charter given Parliament’s recognition that evidence would otherwise be diff‌icult to ob-
tain since prostitutes are often unwilling to testify against a pimp because of fear of violent reprisal. However,
someone who has a personal relationship with a prostitute, such as a romantic partner or roommate, can live
with a prostitute without committing an offence: Grilo, supra note 27 at paras. 25-27.
ognizes as “a particularly vulnerable segment of society.” us, proting from the com-
mercial sale of a person’s sexuality is considered exploitative and illegal within Canadian
law. Unfortunately, these sections, which target indoor and exploitative prostitution, are the
most under-enforced of the prostitution laws.
In contrast, s.  of the Criminal Code accounts for “ of all prostitution-related of-
fences reported by police,” which makes it the most implemented provision of the pros-
titution laws by far. Section  of the Criminal Code, the “communicating law,” makes it
an oence for a person “in a public place” to stop or communicate with any person for the
purpose of engaging in prostitution. e provision is targeted at lessening or prevent-
ing the social nuisance caused by the public solicitation of prostitutes and johns; thus,
it focuses primarily on eliminating street prostitution. is means that street prostitution
is targeted by law enforcement far more than indoor prostitution. Furthermore, it also
means that the enforcement of prostitution laws is skewed in terms of targeting nuisance,
rather than exploitation.
Yet, the communicating law has largely failed to lessen nuisance. According to a census
conducted in Vancouver from  through , although street prostitution “abated for
a few months aer the introduction of the communicating law in December , by the
latter half of  the number of [prostitutes] visible on the street had returned to the level
of the summer before, and has been rising ever since.” us, the prostitution laws have
failed to achieve their objectives of lessening nuisance and exploitation. Rather, cumula-
tively, they have simply made prostitutes more vulnerable.
B. The Communicating Law: Exposing Prostitutes to Violence and Murder
Unfortunately, not only has the communicating law failed to lessen street prostitution and
its associated nuisances, but it is also gender-biased: it more harshly criminalizes female
street prostitutes rather than male johns. is gender bias is made clear if we consider re-
cent statistics:
Within the statistics on the use of s. , a gender and role imbalance (client versus prostitute)
quickly emerges, both in terms of guilty ndings and sentencing…. [I]n -:
 of women charged were found guilty under section , while 
of charges were stayed or withdrawn for men charged under the same
provision;
Upon conviction, just under  of women were given prison sentences,
while just under  of men convicted under the same provision were
ned, and the prison sentence rate for men was just over ;
31. Downey, supra note 27 at 39 (cited to S.C.R.).
32. Challenge of Change, supra note 3 at 52.
33. Criminal Code, supra note 15, s. 213. This offence is punishable on summary conviction,
34. In Reference re, supra note 25 at 1134-35 (cited to S.C.R.), Dickson C.J. characterized the legislative objective
of s. 213(1)(c), which was then s. 195(1)(c), as “address[ing] solicitation in public places and, to that end,
seek[ing] to eradicate the various forms of social nuisance arising from the public display of the sale of sex….
the legislation is aimed at taking solicitation for the purposes of prostitution off the streets and out of public
view.”
35. “An Award-winning Criminology Professor Issues a Challenge to the Politicians of Canada. The Issue He Wants
Them to Tackle: The Hypocrisy of Prostitution Laws” The Province (28 September 1997) A47.
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 of those sentenced to prisonfor communicating oences in -
were female.
Because of the marginalized environment in which they live, prostitutes
oen face criminal records and harsher penalties than their clients….
By contrast, statistics indicate that clients walk away with lighter penal-
ties and fewer convictions than prostitutes under section . Clients
usually manage to avoid full prosecution and jail sentences by attending
“john school”, upon completion of which they receive a stay of charges
or the charge is withdrawn. [Emphasis added.]
is sexist criminalization of female street prostitutes both reects and perpetuates gender
inequity. e gender-biased criminalization and imprisonment of female prostitutes is in-
dicative of an aberrant and systemic sexism operating within the criminal justice system
that needs to be remedied. is gender bias is even more egregious since it is the most in-
tersectionally-marginalized prostitutes who are disproportionately criminalized and im-
prisoned. e statistics indicate that the most vulnerable women involved in prostitution,
female street prostitutes who are oen racialized and living in poverty, must bear the blunt
force of the criminal law. Criminal charges and imprisonment adversely aect women in
street prostitution, many of whom are single mothers who are separated from their chil-
dren while incarcerated, sometimes losing child custody as a result. Not only are street
prostitutes over-incarcerated and disparately impacted by the criminal justice system, they
are further aected by conditions placed on them upon release from prison.
Judges oen place conditions of release on female street prostitutes and these conditions
play an active role in making prostitutes more vulnerable to male violence. In particular,
the communicating law causes street prostitutes to disperse and become more susceptible
to violence and even murder. Prostitutes that are charged with communicating oen dis-
perse because they want to avoid being charged again and are usually given “area restric-
tions” that prohibit them from returning to the stroll where they were arrested.
Dispersal also entails a separation from other prostitutes one may have been working along-
side and a movement into areas where one has less of a chance of being noticed and ar-
rested. e areas that Vancouver street prostitutes oen move to are in the DTES, where
they “spread out over a ve-block area, standing alone in poorly lit back alleys and usually
working alone.” ese areas do not allow for protective networks to be formed with other
working prostitutes. erefore, this dispersal allows a man to “easily stop ..., pick up a
woman, and drive away without ever being seen.”
Clearly, the disproportionate criminalization of prostitutes and their exposure to male vi-
olence must be remedied; a legislative overhaul of the prostitution laws is necessary and
pressing. Although it may seem exaggerated to claim the communicating law is killing
women, the law is certainly rendering prostitutes far more susceptible to male violence.
By causing prostitutes to disperse, alienating them from the police and rendering them
36. Challenge of Change, supra note 3 at 52-53.
37. A “stroll” is known within the prostitution community to be an area that one frequents.
38. Lowman, Street Prostitution, supra note 9 at 198.
39. Lowman, “Violence and the Outlaw Status of (Street) Prostitution in Canada,” supra note 11 at 994.
40. Dan Gardner, “Courting Death (Part 1): The Law has Hounded Hookers Out of Safe Areas and Into Dark Al-
leys, Making Them Easy Prey for Murderers” The Ottawa Citizen (15 June 2002) B1.
more vulnerable to predatory men, the communicating law has led to a sharp increase in
the number of prostitutes murdered.
C. All Forms of Prostitution are Imbued with Violence
Violence is pervasive in all forms of prostitution. Although o-street prostitutes are gen-
erally subject to less violence, violence occurs in all types of prostitution, from street pros-
titution, to massage parlours, to escort agencies.e dierent types of abuse and violence
range from “whistles and insults to assault, rape and murder.” Again, stigmatization ex-
poses prostitutes to violence as they are predominantly “regarded as criminals and second-
class citizens, [such that] some people feel justied in humiliating them, harassing them,
throwing things at them and even physically abusing them.” us, the abuse and violence
prostitutes experience ranges from humiliation and degradation to horrically sadistic
murder. I agree with Lowman, who states that “violence against prostitutes ought [also] to
be understood as part of a continuum of violence against women more generally.”Yet, vi-
olence against prostitutes is particularly severe since it is targeted at them and amplied
given their stigmatized status.
Canadian case law abounds with narratives of the extremely sadistic, misogynistic brutal-
ity and murder that prostitutes are subject to, simply because of their status as prostitutes.
In R. v. Palma, an Ontario man picked up and fatally shot three women (two of whom were
transgendered) within the span of an hour; his murderous rampage was targeted solely at
street prostitutes. In Jones v. Smith, Jones disclosed to a forensic psychiatrist his detailed
plans to murder prostitutes from Vancouver’s DTES. Luckily, he was caught before suc-
cessfully completing his “trial run.” He disclosed that he had deliberately chosen a small
prostitute who he could easily overwhelm, and had planned to kidnap her, take her back
to his home and use her as a “sex slave” before shooting her in the face to erase her iden-
tity. He had taken time o work and carefully prepared his apartment to execute his plan.
Fortunately, he was unsuccessful.
Despite the violence prostitutes are subjected to, R. v. Evans is testament to the resilience
and will to survive against all odds of women engaged in prostitution. In this horric case,
a woman was unlawfully conned in a car and driven by two men to a remote locale, where
she was sexually and physically assaulted by them, stabbed in the side of her throat, and le
to die. By feigning death and then inserting her thumb and forenger into her knife
wounds, she managed to cease the ow of blood and travel on foot to a farmhouse a third
41. John Lowman documents that since the communicating law was enacted and entered into force in 1985, there
has been a sharp increase in the number of prostitutes found killed. In British Columbia alone: from 1975-1979,
three prostitutes were murdered; from 1980-1984, eight prostitutes were murdered; from 1985-1989, 22 pros-
titutes were murdered; from 1990-1994, 24 prostitutes were murdered; from 1995-1999, 50 prostitutes were
murdered: Challenge of Change, supra note 3 at 19. Furthermore, it should be noted that, except for the statis-
tics from 1995-1999 that also factored in the missing women believed to be murdered, these are the number of
prostitutes found murdered in these years. Thus, Pickton is surely not alone in his murderous violence towards
prostitutes.
42. Ibid. at 17.
43. Ibid.
44. Ibid. at 20.
45. Lowman, supra note 11 at 1006.
46. R. v. Palma, [2001] O.J. No. 3283, 2001 CarswellOnt 3384 (Sup. Ct.) at paras. 16-19 (QL).
47. Jones v. Smith, [1999] 1 S.C.R. 455, 169 D.L.R. (4th) 385 at paras. 36-39 and 88.
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of a kilometre away. Aer a tracheotomy and  days in hospital, she lived to see both men
brought to justice. Of course, many prostitutes have not been as lucky and their male at-
tackers continue to enjoy anonymity.
I use these three cases to illustrate the misogyny and violence that is oen directed at pros-
titutes. In each case, the stigma and dehumanization that ow from the label of “prostitute”
are rendered all too real as they manifest in extreme violence. By the act of murder, these
men violently dehumanize their victims, obliterating their identities as they callously and
senselessly take their lives. e case law all too vividly depicts the danger of extreme vio-
lence imbued within prostitution. Clearly, something must be done to protect prostitutes
from similar, tragic ends. Since the prostitution laws have failed to achieve their objectives
and have only made prostitutes more vulnerable to violence and murder, I argue that legal
reform is essential and pressing.
II. FINDING COMMON GROUND WITHIN THE FEMINIST DEBATE
How best to aect legal reform is a divisive issue, particularly among feminists. One way
to understand this polarization of feminists over the issue of prostitution is to consider the
magnitude of what is at stake: womens safety and lives. Yet, this feminist divide must be
overcome; it has already contributed to an ideological impasse in , when the Canadian
federal government reconsidered the prostitution laws but could not reach the consensus
needed to aect legal change. I argue that in order for this feminist divide to be over-
come, we need to reframe the debate. In this section, I rst present the two opposing fem-
inist positions and then attempt to rearticulate the concept of “choice” so central to the
divide between feminists, viewing “choice” as a continuum rather than a binary. Ultimately,
I do advocate the abolitionist approach, which I argue most appropriately re-centres pros-
titutes at the most disadvantaged end of the continuum and upholds feminists’ common
goals for prostitution: lessening stigma, ending violence and empowering prostitutes. I will
now begin by foregrounding the two opposing feminist positions: those of “full-decrimi-
nalization”and “abolitionist” feminists.
A. The Full-Decriminalization Feminist Position
Full-decriminalization feminists “seek... tolerance and legitimation” of what they term “sex
work,” arguing that “some prostitution and tracking… is a free choice by an autonomous
individual, and one oen made out of economic necessity.” us, they conceive of the
sex-worker as an agent and assert that “dicult choices made under constrained conditions
are still choices.” Furthermore, full-decriminalization feminists view consensual adult
sex work as “a legitimate form of labour” that, therefore, necessitates “the same labour and
48. R. v. Evans, [1990] O.J. No. 517, Action No. DCOM 2628/88 (Dist. Ct.) (QL).
49. Challenge of Change, supra note 3.
50. Ibid.
51. I should note that various other names are attributed to these two positions. What I term “full-decriminaliza-
tion” feminists have also been termed sex radicals, autonomists, pro-prostitution advocates or simply decrimi-
nalization feminists, while the term “abolitionist” has also been referred to as the radical feminist position. I use
the term “full-decriminalization” feminists to avoid confusion with abolitionist feminists who also advocate de-
criminalization, yet only for prostitutes.
52. Hernández-Truyol et al., supra note 20 at 402.
53. PIVOT, Voices, supranote 12 at 8.
human rights protections” that other workers enjoy. While they desire sex work to be
treated the same as other employment, they also “advocate the establishment of an eec-
tive support network and exit strategies for those who are exploited or have not freely cho-
sen to be where they are.” Viewing the sex-worker as agent, establishing a protective
framework and attempting to empower prostitutes are obviously worthy aims. Yet, I argue
that full-decriminalization feminists’ attempt to do so within a larger context of gender,
race and class inequity is somewhat misguided.
Full-decriminalization feminists advocate a libertarian approach that views government
interference with sex work as an encroachment on liberty and freedom of expression. In
terms of decriminalization, full-decriminalization feminists agree with abolitionists that the
criminalization of prostitutes must end since it simply renders prostitutes more vulnera-
ble. Yet, they want most or all of the provisions of the Criminal Code relating to prostitu-
tion, ss.  to , to be repealed or struck down. Although some suggest that s.  “could
be kept to protect children and prostitutes from exploitation,” others believe that it should
also be removed from the Criminal Code. Full-decriminalization feminists believe these
changes will reduce harms to women in prostitution since women will be able to run their
own brothels and co-operatives, “have better control over their physical surroundings and
transactions with male buyers,” be able to enter into employment contracts and have their
rights protected by employment and labour standards like other workers.
Although these are all worthy goals, the eect of repealing these provisions of the Crimi-
nal Code is that the laws that also apply to johns, pimps and prostitution industrialists will
be removed, and, thus, a more neo-liberal approach will cause the sex trade to grow and
ourish. Decriminalization advocates suggest that since “the Criminal Code is replete with
provisions that can already be used to eectively protect all adults and children from [phys-
ical and sexual] abuse… the prostitution-related provisions are redundant.” Yet, although
these other provisions can be used, they oen are not; this is not likely to change in the
absence of prostitution laws. Also, the removal of laws that criminalize the coercive, com-
mercial exploitation of prostitutes will surely have detrimental eects long-term.
54. PIVOT, Beyond Decriminalization: Sex Work, Human Rights and a New Framework for Law Reform (Vancou-
ver: The Law Foundation of British Columbia, 2004) [Beyond Decriminalization] at 12, online: PIVOT
.
55. Challenge of Change, supra note 3 at 77.
56. Shelagh Day, “Prostitution: Violating the Human Rights of Poor Women” Action ontarienne contre la violence
faite aux femmes (June 2008) at 14, 15, online: Francofemmes
ments/Prostitution_v.angl_FINALE_WEB.pdf>.
57. Challenge of Change, supra note 3 at 77. There is concern amongst some full-decriminalization feminists that s.
212 could be used to criminalize a prostitute’s own children or partner who she lives with, although the case
law suggests that this is unlikely: supra note 30. Some want to decriminalize s. 212 since it limits sex workers’
ability to “create safer working conditions” by not permitting referrals from one sex worker to another and
criminalizing anyone who runs a bawdy-house as a procurer or someone who is living off the avails of prostitu-
tion: PIVOT, Voices, supra note 12 at 23. Thus, some full-decriminalization feminists believe that all of the pro-
visions of the Criminal Code relating to sex work should be repealed.
58. Shelagh Day, supra note 56 at 14.
59. PIVOT, Beyond Decriminalization, supra note 54 at 145-8.
60. Day, supra note 56 at 9.
61. Challenge of Change, supra note 3 at 77.
62. For example, in R. v. Seaboyer; R. v. Gayme, [1991] 2 S.C.R. 577 at 649, L’Heureux-Dubé J. notes that, in the
context of sexual assault, despite the fact that, “by all accounts, women are victimized at an alarming rate….
The prosecution and conviction rates for sexual assault are among the lowest for all violent crimes.”
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B. The Abolitionist Feminist Position
In contrast, abolitionists believe that the legitimation and expansion of prostitution will
do little to protect women from the violence that is inherent in all its forms. Abolitionists
oppose full-decriminalization, which they assert will only expand the sex trade and, as an
organization of abolitionist ex-prostitutes stated, “put more power into the hands of the
men who abuse… [prostitutes] by telling them that they are … entitled to do so.” Instead,
they believe that the laws that criminalize prostitutes should be removed, but the laws re-
lating to johns, pimps and proteers should remain intact. ey believe this approach will
deter buyers, decreasing the purchase of sexual services and making markets less lucra-
tive, which in turn will decrease prostitution and tracking.
Abolitionists refuse to describe prostitution as “work,” instead arguing that “force or coer-
cion—albeit tacit or circumstantial—is always present wherever prostitution is found.”
ey argue that women are “coerced into prostitution by various factors: poverty, racism, a
history of previous sexual abuse, drug addiction [and] lack of housing.” Statistics and de-
mographic proles of prostitutes largely support these contentions. Furthermore, given
that abolitionists view prostitution as largely informed by coercion that negates “choice,
they view prostitution as an act of violence against women and “the most extreme and crys-
tallized form of all sexual exploitation.”As well as gender, abolitionists view prostitutes as
victimized by the race, ability and/or class hierarchies that circumscribe “choice” so severely
that the sale of one’s embodied sexuality even seems a viable option. us, they view pros-
titutes as having been in/directly oppressed and coerced, or as having internalized gender
hierarchy such that prostitutes “come to acquiesce in their own subordination.”
63. Ex-Prostitutes Against Legislated Sexual Servitude (X-PALSS), “NO Legal Brothel in Vancouver” (December
2007), online: Sisphe.org .
64. Gunilla Ekberg, “The Swedish Law That Prohibits the Purchase of Sexual Services: Best Practices for Prevention
of Prostitution and Traff‌icking in Human Beings” (2004) 10 Violence Against Women 1187 at 1193-94, 1199-
1201.
65. Cynthia Meillón, “References to Traff‌icking in the Beijing + 5 Document” in Cynthia Meillón & Charlotte
Bunch, eds., Holding onto the Promise: Women’s Human Rights & the Beijing + 5 Review (New Jersey: Center
for Women’s Global Leadership, 2001) at 156.
66. Day, supra note 56 at 19.
67. The federal Standing Committee found that most people enter prostitution as only a temporary measure and
while “[s]ome people are forced by a third party, others do it to make ends meet, pay the rent or buy groceries,
or to cope with a drug habit or a life marked by violence, incest, rejection”: Challenge of Change, supra note 3
at 10-11. Melissa Farley found in her study of 100 prostitutes in or near Vancouver’s DTES, that at least 57 per-
cent of participants were racialized, 54 percent entered prostitution before the age of 18, 86 percent experi-
enced current or previous homelessness, and 73 percent and 84 percent had been physically and sexually
abused as children, respectively: Melissa Farley et al., “Prostitution and Traff‌icking in Nine Countries: An Up-
date on Violence and Posttraumatic Stress Disorder” (2003) 2 Journal of Trauma Practice 33 at 37-38, 40, 43.
Of the participants, 91 percent had been physically assaulted and 76 percent had been sexually assaulted dur-
ing prostitution, with 95 percent stating they needed to leave prostitution: ibid. at 43, 51.
68. Kathleen Barry, The Prostitution of Sexuality (New York: New York University Press, 1995) at 296.
69. Kate Sutherland, “Work, Sex, and Sex-Work: Competing Feminist Discourses on the International Sex Trade”
(2004) 42 Osgoode Hall L.J. 139 at 142.
C. Choice: The Abolitionist Position
Because some abolitionists view prostitutes as victims and refuse to support the sale of
women’s bodies, they are critiqued as “paternalistic.” Yet, this critique misses the ideo-
logical underpinnings of abolitionist’s unwillingness to see anything less than full, mean-
ingful, voluntary consent as “choice” in prostitution. is viewpoint needs to be
re-examined and “choice” reframed such that abolitionists are no longer viewed as negat-
ing prostitutes’ agency.
Abolitionists predominantly conceive of “choice” in a positive liberty rather than a nega-
tive liberty sense. Positive liberty entails empowering a person to reach their full potential.
us, this positive view of liberty sets as a minimum that “choice” not include the volun-
tary assumption of risks that would infringe or endanger proper self-development, human
dignity, equality, security of the person and/or life. Prostitution, as an inherently violent and
oen dehumanizing and degrading transaction, may give women money, but it oen, given
coerced circumstances, in no way gives them a sense of self-betterment or satisfaction.
us, although abolitionists do not necessarily oppose the “amelioration of [prostitutes’]
working conditions,” “abolitionists historically have been wary of any compromise that
might suggest the legitimation of prostitution or tracking” by articulating prostitution
as something that is chosen.
Abolitionists critique full-decriminalization feminists’ neo-liberal notions of “choice” or
contractual consent as well-intentioned, yet de-contextualized and misguided. Abolition-
ists express concern that espousing that prostitution is “choice,” even if constrained, will ef-
fectively obscure the contextual constraints themselves. As Wanda A. Weigers states, “to
attach normative signicance to choice without regard to its social context can systemati-
cally obscure and impair our understanding of the conditions and pervasive eects of so-
cial inequality.”us, the focus on prostitution as a discrete instance of “choice” detracts
from a focus on the larger context of oppression informing that choice. is does little to
lessen stigma, but instead renders “less visible the social conditions that make prostitution
a palatable choice for many women.” As a result, the underlying conditions of inequality
remain largely unexamined and unchallenged. As well, on an individual level, reducing
prostitution to a single contractual exchange in which a woman exercises voluntary, ra-
tional “choice” allows a man to further stigmatize her for that choice and ignore the depth
of her human identity as well as her disadvantagement within the monetary transaction.
Further, there is a concern that the rhetoric of “choice” may be misappropriated by men ra-
tionalizing their lack of empathy for, and violence against, prostitutes.
e full-decriminalization, neo-liberal concept of free, voluntary “choice” is viewed as mis-
guided by abolitionists since, over time, it may obscure or even preclude “victims” within
the exchange. As autonomous agents, prostitutes will be “presumed to have enhanced their
welfare or to have consented to risk.”erefore, any negative impacts that may ow from
prostitution, including violence or emotional trauma, will be minimized. rough legiti-
70. Iain McDonald, “Criminalizing ‘Punters’: Evaluating the Swedish Position on Prostitution” (2004) 26(2) Journal
of Social Welfare and Family Law 195 at 197.
71. Hernández-Truyol et al., supra note 20 at 401.
72. Wanda A. Weigers, “Economic Analysis of Law and ‘Private Ordering’: A Feminist Critique” (1992) 42 U.
Toronto L.J. 170 at 198.
73. Ibid. at 196.
74. Ibid. at 192.
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mation and a focus solely on the positive benets that presumptively ow from “chosen”
contracts between rational actors seeking to better their lot, prostitution may even be en-
couraged as an option or a “rational choice for poor women.” erefore, as has occurred
in Nevada, to “the extent that prostitution is seen as a legitimate choice, women on welfare
and unemployment insurance may also be encouraged or required to turn to it.”
D. The Crux of the Feminist Divide: Depolarizing the Consent/Coercion
Dichotomy
e polarization of feminists largely involves whether, in constrained circumstances, the
concept of “choice” should be viewed as coercion or consent and, consequently, prostitutes
should be seen as victims or agents, respectively. As well, abolitionists and full-decrimi-
nalization feminists support very dierent models of legislative reform. Personally, I believe
that a middle-ground approach to choice is possible. I nd merit in both positions and
think that, instead of viewing choice as a rigid binary of choice/coercion or prostitutes as
either agent/victim, we should instead understand choice as a continuum along which
prostitutes, as victims, agents or victim-agents, are aligned. However, I also believe that we
should strive for an understanding of choice that engages a positive view of liberty. “Choice
should only be viewed as such if consent is meaningful, free and voluntary, rather than co-
erced. is is also consistent with Canadian contract law since duress, undue inuence and
the unconscionable exploitation of an inequality of bargaining power between parties vi-
tiates consent. us, I argue that choice, although possible, should not and cannot be pre-
sumed in a context where women’s choices are so heavily circumscribed. We need a dierent
presumption and starting point.
e variety of reasons for entering into, as well as types of, prostitution illustrate the con-
tinuum of choice. Oen women enter into prostitution due to a lack of economic alterna-
tives, but this is not always the case. Prostitution (at least certain kinds) has been suggested
to be “probably the one job where women earn more than men” besides modelling.us,
surely there are white, middle-class women who enter prostitution as “high-end escorts”
because prostitution gives them “the opportunity to meet interesting people, work exible
hours and earn decent wages.” However, these women are surely a minute minority. On
the other hand, there are also women at the other end of the continuum, those who are
Aboriginal, impoverished, sexually abused as children and entering into prostitution as
minors, mentally-ill and addicted to hard drugs, which they began to consume because
75. Day, supra note 56 at 13.
76. Weigers, supra note 72 at 196.
77. Frances Shaver, “The Regulation of Prostitution: Avoiding the Morality Traps” (1994) 9 Can. J.L. & Soc. 123 at
144; Naomi Wolf, The Beauty Myth (Toronto: Vintage Canada, 1997) at 50.
78. Challenge of Change, supra note 3 at 12.
79. Does “choice” ascribe to a sexually-exploited girl when she reaches the age of consent? Annabel Webb of Jus-
tice for Girls raises a signif‌icant weakness in the argument of full-decriminalization feminists who claim that
women who were sexually-abused at home and/or sexually exploited as children in prostitution gain the ability
to “choose” prostitution when they turn 18 years old. Certainly, we would never view a girl under the age of
18 as exercising “choice” in entering prostitution, which we term instead “sexual exploitation.” Yet, this is what
some believe when the same young woman reaches the age of majority. Given that most female prostitutes
enter prostitution as minors and become trapped in prostitution, this is a noteworthy critique. Although studies
conf‌lict, “the average age for women entering prostitution is sixteen, although the number of nine-, ten-, and
eleven-year-old girls in the industry is on the rise.” See Sarah Wynter, “WHISPER: Women Hurt in Systems of
Prostitution Engaged in Revolt” in Frederique Delacoste & Priscilla Alexander, eds., Sex Work (London: Virago
Press, 1988) 266 at 268. When I worked at Justice for Girls, one young woman told me that she entered into
they could not stand the feeling, emotionally and physically, of men entering them over and
over and over again. is is a woman that the streets of Vancouver know all too well; she
is the forgotten face of Vancouver’s DTES. is woman may desperately want to leave pros-
titution, view herself as a victim of a white supremacist, capitalist and colonialist patri-
archy, and fervently tell you she in no way “chose” this life, but rather it chose her. However,
there may also be a woman who had the same constrained set of choices but who views her-
self as an agent or a victim-agent. Who is right? Whose perspective do we privilege? I argue
we must view choice within prostitution as a continuum, yet privilege the most disadvan-
taged woman along it.
One critique of second-wave feminism was that the simplifying of experience and centring
of viewpoints and voices of more privileged feminists, whether intentional or not, silenced
those who spoke from the margins. A central tenet of feminism is envisioning and striv-
ing for a better world, in which women can be fully-actualized, equal, autonomous and
empowered. Abolitionist feminists cannot tell women who assert that they have “choice
that they do not since this would be demeaning, even if such women’s choices are coerced
and constrained. Similarly, full-decriminalization feminists cannot tell a woman who says
that she did not choose prostitution that, in fact, she did. e greater socio-cultural con-
text of sexism, racism and classism, which oen makes prostitution the only choice be-
sides homelessness or starvation, can isolate a woman in a place where she feels like she has
no choice at all. As long as women exist who can plausibly claim they have no choice, I
argue they should be centred as our starting point. Centring this woman does not negate
the other voices that claim they do have choice and agency, but it centres the person who
is most disadvantaged on the continuum: the self-identied victim.
E. A New Starting Point Within the Law
Given that some women say their experience of prostitution is devoid of choice, and most
want to leave it, I argue that full, meaningful and voluntary choice should not be a pre-
sumption within prostitution. Rather, I assert that full, meaningful and voluntary choice
should be seen as an exception to a general assumption that consent and choice are oen
absent within prostitution. is needs to be the basic starting point for legal reform. Re-
thinking the use of “choice” in this important debate ensures that the most marginalized
people on the continuum of choice are centred. In the rest of my analysis, I centre the
woman from my city, Vancouver, who is the most marginalized on the continuum of choice
and claims she did not choose prostitution: the Aboriginal, street prostitute, living in
poverty on the DTES, who self-identies as a victim of colonialism, capitalism and patri-
80. Most prostitutes who are addicted to drugs did not enter prostitution as addicts. In one study, it was found that
only “forty-percent [of prostitutes addicted to drugs] were addicted before prostitution.” Most prostitutes
begin taking drugs because they f‌ind prostitution so physically and emotionally taxing. See Priscilla Alexander,
“Prostitution: A Diff‌icult Issue for Feminists” in Frederique Delacoste & Priscilla Alexander, eds., Sex Work (Lon-
don: Virago Press, 1988) 184 at 202.
81. See bell hooks, Feminist Theory: From Margin to Center (Cambridge: South End Press, 2000).
82. Sarah-Maria, Ramona and hermoine magdelene of PEERS, Stories from the Margins (Victoria: PEERS, 2003) at
14, 37, online: PEERS .
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prostitution at the age of 15 because her boyfriend’s father introduced her to and made her addicted to crack
cocaine; he then forced her to prostitute herself if she wanted to continue to live with them.
APPEAL VOLUME 15 w73
archy (the “centred woman”). By centering her in my analysis, I hope to destabilize the
victim/agent dichotomy and instead envision a legal framework that more readily enables
her to transition from victim, to victim-agent and ultimately to agent.
As a nal point in this section, the common goals of feminists should be stressed. First, fem-
inists agree the stigma ascribed to prostitutes must be lessened for them to live in greater
dignity, equality and safety. Second, and related to lessening stigma, feminists most im-
portantly want the violence against and murder of prostitutes to end. ird, feminists want
prostitutes to be empowered to leave prostitution if they wish, or to engage safely in pros-
titution if they stay. ese three feminist goals— lessening stigma, ending violence and
empowering prostitutes— as well as the amelioration of the most disadvantaged prosti-
tutes will inform my analysis as I analyze how best to approach legislative reform within
Canada. First, however, I explore one additional concern, commodication, which I argue
should also inform legal reform.
III. RADIN, INCOMPLETE COMMODIFICATION AND LEGAL
MODELS
In addition to the concept of the centred woman and the idea that full, meaningful and vol-
untary choice should be presumed absent within prostitution, it is important to explore
what else may be at stake in turning sexual services into market-alienable commodities. By
exploring the legal theory of Margaret Jane Radin, I argue that we can come to a more com-
plete understanding of the anxiety and stigma that oen attaches to the sale of sexual serv-
ices. Furthermore, I argue that Radin’s approach, which is grounded in women’s realities,
particularly those of the centred woman, also enables “human ourishing” such that we
do not “foreclose progress to a better world of more equal power (and less susceptibility to
the domino eect of market rhetoric),” as I will explain. With this theoretical lens, I again
stress that criminalizing the sellers of sexual services must cease and then examine other
extra-jurisdictional models in place: legalization, decriminalization and asymmetrical crim-
83. The Aboriginal Women’s Action Network (AWAN) has this message: “We, the Aboriginal Women’s Action Net-
work, speak especially in the interests of the most vulnerable women — street prostitutes, of which a signif‌icant
number are young Aboriginal women and girls. We have a long, multi-generational history of colonization,
marginalization, and displacement from our Homelands, and rampant abuses that has forced many of our sis-
ters into prostitution. Aboriginal women are often either forced into prostitution, traff‌icked into prostitution or
are facing that possibility. …The Aboriginal Women’s Action Network opposes the legalization of prostitution,
and any state regulation of prostitution that entrenches Aboriginal women and children in the so-called ‘sex
trade.’ We hold that legalizing prostitution in Vancouver will not make it safer for those prostituted, but will
merely increase their numbers. Contrary to current media coverage of the issue, the available evidence suggests
that it would in fact be harmful, would expand prostitution and would promote traff‌icking, and would only
serve to make prostitution safer and more prof‌itable for the men who exploit and harm prostituted women and
children. Although many well-meaning people think that decriminalization simply means protecting prostituted
women from arrest, it also refers, dangerously, to the decriminalization of johns and pimps. In this way prostitu-
tion is normalized, johns multiply, and pimps and traff‌ickers become legitimated entrepreneurs.” Read more of
AWAN’s message: AWAN, “Inteligenta Indigena: Aboriginal Women’s Action Network Statement Against the
Plans for Vancouver Brothel” Fire Witch Rising (20 February 2008), online: Fire Witch Rising
witchrising.blogspot.com/2008/02/inteligenta-indigena-aboriginal-womens.html>.
84. Margaret Jane Radin conceives of “human f‌lourishing” in a positive liberty sense. She describes a “positive view
of freedom ... in which the self-development of the individual is linked to pursuit of proper social development,
and in which proper self-development, as a requirement of personhood, could in principle sometimes take
precedence over one’s momentary desires or preferences”: Radin, supra note 22 at 1905.
85. Ibid. at 1924.
inalization (i.e., the Swedish model). Ultimately, I advocate asymmetrical criminalization as
the best alternative available, and perhaps the same one envisioned by Radin.
A. Radin: Stigma and the Slippery Slope to Market Domination
In her article, “Market-Inalienability,” Radin explores the anxiety and stigma that oen at-
tach to the commodication of sexual services. First, she adeptly articulates people’s oen
indenable feelings of anxiety that arise in regard to the market-alienability of “contested
commodities,” such as babies, surrogacy and sexual services. Some argue that conceiving
of attributes that are “integral to the self,” such as sexuality, as “monetizable or detachable
from the person… is to do violence to our deepest understanding of what it is to be
human.” us, an anxiety arises around the selling of such personal attributes, such as sex-
ual services. As well, since the sale of one’s embodied sexuality implicates in an entirely lit-
eral way one’s bodily integrity, some people feel discomfort or insult, or a fear of
degradation or loss of value, in considering sexuality to be a “fungible object;” they may
also feel that such considerations are “intuitively wrong.”To feel that selling sex is “wrong”
gives rise to stigma. When viewed through this lens, the position of abolitionist feminists
becomes more complicated. Of course, abolitionist feminists do not wish to stigmatize
prostitutes for their need to sell their bodies. Rather, they view prostitution as intuitively
wrong because of concerns that “commodication will exacerbate, not ameliorate, op-
pression and powerlessness [as well as] the social disapproval connected with marketing
one’s body.”Also, as Radin suggests, commodifying women’s bodies may cause a “domino
eect” or “a slippery slope leading to market domination” and a fundamental transforma-
tion such that women’s bodies are sold at such a dystopian scale that everyone’s discourse
and views of sexuality, particularly women’s, suer tremendously. I agree with Radin that
these are real concerns and, thus, that the commodication of women’s bodies should be
approached cautiously to preclude and deter such market domination.
In an ideal world, abolitionist feminists would not want women’s bodies to ever be con-
sidered “for sale,” or market-alienable, particularly not the centred woman. However, as
Radin asserts, “we are situated in a nonideal world of ignorance, greed, and violence; of
poverty, racism and sexism.” us, “[i]n spite of our ideals, justice under nonideal cir-
cumstances, pragmatic justice, consists in choosing the best alternative now available to
us.” Radin views the crossroads that feminists are at, and prostitution more generally, as
a dilemma she calls the “double bind”: to commodify women’s bodies may entrench op-
pression and do violence to their personhood values, but to disallow women from com-
modifying themselves means “forc[ing] women to remain in circumstances… worse than
becoming sexual commodity-suppliers.” e criminalization of prostitutes “exacerbates
86. Ibid. at 1856.
87. Ibid. at 1906.
88. Ibid. at 1881.
89. Ibid. at 1880.
90. Ibid. at 1916.
91. Ibid. at 1912, 1922.
92. Ibid. at 1915.
93. Ibid.
94. Ibid. at 1916-17.
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the double bind” for it harms their personhood by rendering them more marginalized,
stigmatized and vulnerable.
B. Circumventing the Double Bind: Incomplete Commodif‌ication
To circumvent the double bind, Radin suggests “incomplete commodication” in the con-
text of prostitution. She seems to contemplate a regime quite similar to the one in place
in Sweden:
I think we should now decriminalize the sale of sexual services in order to
protect poor women from … degradation and danger…. At the same time,
in order to check the domino eect, we should prohibit the capitalist entre-
preneurship that would operate to create an organized market in sexual serv-
ices even though this step would pose enforcement diculties. [Emphasis
added.]
Radin concludes her article with a recognition that legal models must rest “on our best
conception of human ourishing,” but must also dialectically evolve. I interpret this to
mean that we must choose as a starting point the best legal regime for prostitution in
Canada now available. Yet, we must allow this regime to alter as the conditions of disad-
vantaged groups are ameliorated and power shis, or as we nd a way to regulate the regime
in a manner that does not endanger human ourishing. Still, our starting point and aim
must be the most ideal approach available, despite non-ideal circumstances, so that we do
not “foreclose progress to a better world.”
By adopting Radin’s theoretical lens and focusing on common feminists goals, the centred
woman and the purposes behind prostitution legislation (lessening nuisance and ex-
ploitation), I now evaluate the dierent extra-jurisdictional models in place: legalization,
decriminalization and asymmetrical criminalization.
C. Legalization
Prostitution has been legalized in the Netherlands and Victoria, Australia. In both juris-
dictions, not all forms of prostitution are legal: child prostitution, tracking and some as-
pects of street prostitution remain criminalized. Legalization oen involves removing
criminal laws relating to adult prostitution and regulating prostitution through licensing,
health and safety regulations. Although legalization has some benets since it does not
criminalize prostitutes and attempts to support their well-being, it unfortunately has mul-
tiple drawbacks.
95. Ibid. at 1921-22.
96. Ibid. at 1921.
97. Ibid. at 1924 [emphasis added].
98. Ibid. at 1937.
99. Ibid. at 1924.
100. Julie Bindel & Liz Kelly, “A Critical Examination of Responses to Prostitution in Four Countries: Victoria, Aus-
tralia; Ireland; the Netherlands; and Sweden” Routes Out Partnership Board (2003) at 12, online: Network of
Sex Work Projects .
101. Challenge of Change, supra note 3 at 82.
In both jurisdictions, legalization has spurred a marked growth in the sex industry. For
example, in Victoria, legal brothels more than doubled over a span of  years: “the num-
ber of legitimate brothels grew from  in  to  in .”is growth of the sex in-
dustry is linked directly to increased demand, which stems from the legitimation and
accessibility of prostitution domestically, and these countries’ increased popularity as sex
tourist destinations.
With an increase in demand, there has been an increase in the legal and illegal, underground
forms of the trade. Demand must be met with a supply of bodies, and a variety thereof, to
be made available for male sexual consumption. us, demand has resulted in an increase in
the exploitation of women and children who are tracked or otherwise forced to enter pros-
titution. In the Netherlands, there has been a disturbing increase in child sexual exploita-
tion, with a growth of , children in the sex trade since , mainly tracked from other
countries. As Anne-Marie Lizin of Belgium has stated, “You cannot say you’re ghting the
tracking of people and at the same time legalise (brothels) because you open the market.”
is seems to be a sound argument since, in the Netherlands, approximately  to  percent
of prostitutes are non-Dutch and thus have voluntarily relocated or been tracked from
other countries to work in locations like Amsterdam. In this way, prostitution, tracking and
child sexual exploitation should be viewed as inextricably linked. For these reasons, it is not
surprising that the Mayor of Amsterdam recently announced that a third of the red light dis-
trict will be shut down since, not only did legalization not bring the Dutch what they had
“hoped and expected,” but it increased organized crime, exploitation and tracking.
As well, in jurisdictions with legalization, an increase in legal indoor prostitution has in-
creased illegal street prostitution rather than moving women in o the streets, thus al-
lowing the nuisance associated with prostitution to linger or worsen. Of course, this is not
surprising since legalization does not ameliorate the basic conditions of disadvantage that
keep women— particularly the centred woman— poor, homeless and on the street to begin
with. Overall, legalizing prostitution has not decreased nuisance or exploitation, but has
largely exacerbated them.
Legalization has also failed to lessen the stigma and extreme violence associated with pros-
titution. In Amsterdam, known internationally for its open-minded attitudes toward the sex
industry, legalization has not minimized the stigma attributed to prostitutes.Instead, as
102. Bindel et al., supra note 100at 13; Challenge of Change, supra note 3 at 82.
103. Bindel et al., ibid.
104. Judith Kilvington, Sophie Day & Helen Ward, “Prostitution Policy in Europe: A Time of Change?”(2001) 67
Feminist Review 78 at 86; Bindel et al., supra note 100 at 14; Challenge of Change, supra note 3 at 82.
105. Mary Sullivan, “What Happens When Prostitution Becomes Work?: An Update on Legalisation of Prostitution
in Australia”, online: (2005) Coalition Against Traff‌icking in Women at 3
; Bindel et al., supra note 100 at 15; Challenge of
Change, supra note 3 at 82.
106. Bindel et al., supra note 100 at 15; Challenge of Change, supra note 3 at 83.
107. Bindel et al., ibid.at 29.
108. Challenge of Change, supra note 3 at 83.
109. “Mayor unveils plan to clean up Amsterdam’s red-light district” CBC News (18 December 2007), online: CBC
News ; “Amsterdam to cut back on
brothels” BBC News (21 September 2007), online: BBC News
rope/7005768.stm>.
110. Sullivan, supra note 105at 4; Bindel et al., supra note 100 at 14.
111. Challenge of Change, supra note 3 at 82-83.
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businesswomen, “accountants, banks and health insurance companies want nothing to do
with [prostitutes].” is stigma may relate to Radin’s recognition that many feel unease
and disapprobation at a person commodifying their sexuality. Not surprisingly, just as
stigma remains, violence also still pervades and is a recognized reality within the legalized
sex industry, even though indoors. As one brothel owner in Amsterdam stated, “[y]ou
don’t want a pillow in your room. It’s a murder weapon.” Some even suggest that violence
has increased, particularly for those who work in the illegal sectors and, thus, are still alien-
ated from police protection.A fur ther concern is that violence has been legitimated and
normalized as simply a “workplace hazard” that prostitutes must accept and prepare for.
In some locales, panic buttons are axed in rooms and prostitutes are encouraged to un-
dergo hostage negotiation training. ese precautions indicate that violence remains a
serious, alarming and consistent risk.
Yet another drawback of legalization is that it has generally not empowered prostitutes to
get out of the sex trade if they wish nor enjoy better working conditions. In the Netherlands,
only four percent of prostitutes have registered with authoritiesto access the health and
safety regulations, pension benets and employment rights available. erefore, only a
small proportion of prostitutes have bettered their legal status in the system, and even then
they are still subject to social stigma and violence. e prostitutes in the Netherlands who
refrain from the legalized regime do so for many reasons: fear of the stigma and repercus-
sions that would ow from being ocially recognized as a prostitute, ineligibility be-
cause of age or illegal immigrant status, and unwillingness to declare a commitment to
work they view as temporary. us, even in jurisdictions where prostitution is legalized, a
large proportion of the sex trade still operates illegally and underground, unable to bene-
t from the legalized regime in place. As well, most prostitutes have not been empowered
to “move indoors” and enjoy “better” working conditions or exit the trade since the same
socio-economic reasons that put them on the street remain.
For these many reasons, very few people suggested legalization or regulation to the 
Standing Committee as an approach to adopt in Canada. Furthermore, both sides of the
feminist debate strongly discourage legalization. Clearly, the centred woman would largely
not benet from legalization: she would be excluded from the legal regime as a street pros-
titute and the stigma, violence and disadvantage that informs her life would likely not abate.
D. Decriminalization
Instead of legalization, full-decriminalization feminists advocate “decriminalization” as
separate from, and more advantageous than, legalization. e jurisdiction that full-de-
112. Bindel et al., supra note 100 at 17. See also Challenge of Change, supra note 3 at 82-83.
113. Bindel et al., ibid. at 16.
114. Suzanne Daley, “New Rights for Dutch Prostitutes, but No Gain” The New York Times(21 August 2001),
online: The New York Times .nytimes.com>.
115. Bindel et al., supra note 100 at 16; Challenge of Change, supra note 3 at 83.
116. Sullivan, supra note 105 at 23.
117. Ibid. at 22.
118. Challenge of Change, supra note 3 at 83.
119. Ibid. at 82-83.
120. Kilvington et al., supra note 104 at 84.
121. Challenge of Change, supra note 3 at 81.
criminalization feminists usually refer to as a success is New Zealand, which adopted a de-
criminalized regime in . Decriminalization in New Zealand is similar to legalization
in Victoria, Australia and the Netherlands in terms of enabling prostitutes to access better
working conditions via employment contracts, lessened stigma and better relations with
law enforcement ocials. New Zealand diers from legalized regimes in that street pros-
titution has been decriminalized and child sexual exploitation has been more seriously
criminalized. ese are both commendable improvements over legalization regimes. Also,
there is less of a division between the il/legal sex trade for workers in terms of in/out-door
prostitution given the decriminalization of street prostitution. Yet, it is still illegal for im-
migrants to be sex workers and access the labour and employment benets of legal work-
ers. Despite the advantages of decriminalization over legalization and an optimistic report
from the New Zealand Prostitution Law Review Committee (the “Committee”), many
problems still remain and “progress [has been] slower tha[n] may have been hoped.”
Violence, stigma, nuisance, exploitation, poor working conditions, low rates of reporting
of violence and a normalization of prostitution making it more dicult for women to exit
are all apparent in New Zealand and cited within the report, even if they dier from the
Committee’s optimistic conclusions. What is most apparent in the report is the dismissal
of concerns relating to an increased “visibility” of street prostitution. First, even though
vastly dierent approaches were implemented to count the number of prostitutes in 
and  and the Committee conceded that reliable gures were “dicult to obtain,” the
Committee still made an estimate that numbers went from , to , over ve years.
us, it concluded that the number of people in prostitution had not increased and that al-
though there was much greater visibility of street prostitutes, this should not necessarily be
attributed to “growth of that industry.” us, the Committee made conclusions based
on questionable methods of numerical comparison and was dismissive of citizens’ con-
cerns regarding the increased visibility and nuisance of street prostitution.
Second, the Committee claimed that the media had created an “exaggerated impression of
the numbers involved” in child prostitution, suggesting instead that these children were not
necessarily street prostitutes, but might simply be “hanging around.” us, it was simi-
larly dismissive of concerns that a large number of youth were being sexually exploited.
Based on the questionable and perhaps overly optimistic conclusions drawn in the report,
it is not surprising that the Committee has been critiqued for having ve out of eleven
members with a “clear vested interest” in maintaining the regime. Others contend that
the report actually shows that the New Zealand laws are failing to accomplish their objec-
122. “Report of the Prostitution Law Review Committee on the Operation of the Prostitution Law Reform Act” Min-
istry of Justice 14 May 2008 at s. 14, online:
consultation/legislation/prostitution-law-review-committee/publications/plrc-report/report-of-the-prostitution-l
aw-review-committee-on-the-operation-of-the-prostitution-reform-act-2003> [Report of the Prostitution Law
Review Committee NZ].
123. Ibid.
124. Ibid at s. 2.7.
125. Ibid.
126. Ibid. at s. 7.
127. “NZ Prostitution Law Review Committee: Report” The Humanitarian Chronicle (23 May 2008), online: The
Humanitarian Chronicle
tee-report/>.
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tives. Furthermore, as in legalized regimes, there has been a clear normalization of pros-
titution in New Zealand: only two of all the local authorities in the country told the com-
mittee that they had done “anything to assist sex workers to exit the industry.”is was
also minimized by the Committee, which expressed uncertainty about how many prosti-
tutes actually wanted to exit, although they acknowledged “that it is dicult to exit.”
E. Legalization and Decriminalization Are Not Suitable in the Canadian Legal
Context
In her article, “Prostitution: Violating the Human Rights of Poor Women,”Shelagh Day
claries the decriminalization/legalization distinction and takes full-decriminalization
feminists’ arguments for a labour and employment rights regime to their logical conclu-
sions, suggesting them to be incompatible with human rights legislation in Canada. First,
she argues that decriminalization and legalization only vary in terms of the extent of reg-
ulation, and that both would expand prostitution. Although the two regimes are pre-
sented as dierent by full-decriminalization feminists, Day asserts “this does not seem to
be the case.” Rather, both regimes cause an increase rather than a decrease in tracking
and child prostitution.us, given the questionable and counterintuitive ndings of the
New Zealand Committee, and decriminalizations similarities to legalization, I agree with
Day that decriminalization will probably not produce dierent results from legalization.
What largely results from legalization or full-decriminalization is that the sex trade expands,
causing legal and illegal aspects of the trade to increase commensurately (in particular, child
prostitution, tracking and illegal immigrant prostitutes nding themselves unable to ben-
et from the legal regimes available). Furthermore, under both models, violence may di-
minish slightly but still persists, stigma continues and prostitution is “normalized” such
that women who want to exit are oen unsupported. As well, under either a legalization or
full-decriminalization regime, poor working conditions continue, particularly for street
prostitutes, whose most immediate needs are not addressed. ese negative eects make
legalization and full-decriminalization undesirable in the Canadian context.
Another reason why full-decriminalization and legalization are not suitable in Canada is
that the expectation that prostitutes will be able to have their labour and employment rights
protected is perhaps overly optimistic and unfounded: such rights arguably conict with
Canadian human rights legislation, which no employer or collective agreement can con-
tract out of. is conict is apparent in three key ways. First, Day points out that union-
ization will be dicult since many prostitutes want to maintain anonymity or view
prostitution as only temporary employment. Second, Day argues that prostitution can-
not conform to human rights legislation since it depends upon discrimination on the basis
128. Maxim Institute, Media Release, “Report Shows Prostitution Reform Act is Failing to Accomplish its Objectives”
(23 May 2008), online: Scoop – New Zealand News .
129. Report of the Prostitution Law Review Committee NZ, supra note 122 at s. 5.
130. Ibid.
131. Day, supra note 56.
132. Ibid. at 16.
133. Ibid. at 15.
134. Gunilla Ekberg, “The Swedish Law that Prohibits the Purchase of Sexual Services” (2004) 10 Violence Against
Women 1187 at 1189, 1210.
135. Day, supra note 56 at 33-34.
of gender, age, race and ability. For example, Day states that “[i]t is well established in
human rights jurisprudence that an employer discriminates if he permits a customer to
exercise a preference about whom he is served by on the basis of sex, race, age, disabil-
ity.” ird, prostitution is problematic since it is tantamount to “consent to sexual ha-
rassment,” which women in other workplaces are legally protected from. us, Day
persuasively concludes that prostitution cannot “t within the framework of anti-discrim-
ination law” in Canada.
For the reasons discussed, full-decriminalization and legalization are questionable in terms
of fullling the common feminist goals and objectives behind Canada’s current legislation.
ey will surely expand the sex trade by readily turning women’s embodied sexuality into
commodities advertised, bought and sold, regardless of whether this is the intent of full-
decriminalization feminists. is expansion of the trade will allow violence and stigma to
continue for prostitutes and cause women’s sexuality, equality and dignity to be negatively
impacted more generally. Rather than keep women safe or empower them, legalization
and decriminalization predominantly expand the trade, which only exposes more women
to stigma, violence, largely unacceptable working conditions and murder. Surely the equal-
ity, well-being and dignity of women, particularly the centred woman, require us to set our
sights for change higher.
F. Asymmetrical Criminalization: The Swedish Model
Based on the starting assumption previously discussed (that women should not be pre-
sumed to be freely, voluntarily and meaningfully consenting to or choosing prostitution)
and given the reasons postulated by Radin for making sexuality incompletely commodi-
ed rather than a market-alienable commodity, I will now argue that the Swedish model
is the best alternative for Canada. Instead of encouraging the sex trade to increase, the
Swedish model decriminalizes prostitutes since it recognizes their oen marginalized and
vulnerable position, while also targeting the demand side of the sex trade such that pros-
titution decreases. e law has had favourable results since it was passed in Sweden in ,
as I will now discuss.
e Swedish approach, which asymmetrically criminalizes prostitution, decriminalizes
those selling sexual services while still criminalizing those who buy, attempt to buy, or ex-
ploitatively encourage others to sell sex. us, it targets and criminalizes demand, not sup-
ply. Specically, the law targets the johns, pimps, trackers and proteers in the sex
industry. e rationale behind decriminalizing prostitutes in Sweden is that “it is not rea-
sonable to punish” prostitutes since “in the majority of cases, this person is the weaker
partner who is exploited.” In Sweden, prostitutes are viewed as victims of male violence
since “pimps, trackers, and prostitution buyers knowingly exploit the vulnerability of the
victims caused by high rates of poverty, unemployment, discriminatory labour practices,
gender inequalities, and male violence against women and children.” e law is also
136. Ibid. at 34.
137. Ibid.
138. Ibid. at 35.
139. Ibid.
140. Ekberg, supra note 134 at 1188.
141. Ibid. at 1189, 1208.
80 wAPPEAL VOLUME 15
APPEAL VOLUME 15 w81
premised on the assumption that prostitution is inextricably linked to human tracking
and child prostitution.us, the objective behind the legislation is to deter prostitution
by making markets less lucrative and, in eect, encouraging trackers and sex tourists to
view the country as an unprotable and undesirable destination.
Since the law was implemented in Sweden in  and backed up by a well-funded law en-
forcement regime, the country has reported excellent results and a majority of the
Swedish public, approximately  percent, are still in support. e law’s success is based
on several factors. First, the law has signicantly reduced prostitution: the number of
women involved in street prostitution has decreased by an estimated  to  percent, pros-
titution in general has dropped approximately  percent and recruitment has become al-
most non-existent. Second, some suggest that men have been signicantly deterred from
purchasing sexual services. ird, the market has become far less lucrative and, as a re-
sult, prostitution, child sexual exploitation and tracking have been deterred. Fourth,
the law has signicantly reallocated stigma to the buyers of sexual services instead of pros-
titutes, who are regarded as “victims” rather than criminals. Fih, the law has given
prostitutes the upper hand over abusers since they can now report instances of violence, ex-
ploitation, or even simply prostitution to the police. Lastly, Sweden’s regime is buttressed
with social services, exit programs, and drug and alcohol rehabilitation,allowing pros-
titutes to access support and leave prostitution if they wish.
e Swedish model has also been critiqued. Critics suggest that the decrease in prostitu-
tion, particularly street prostitution, is exaggerated, arguing that the sex trade has simply
moved “underground” and is now occurring primarily over the internet and indoors. Yet,
this argument fails to recognize that women are oen involved in street prostitution pre-
cisely because they lack the economic ability to move indoors. Furthermore, even if some
street prostitutes have moved indoors, the same critics recognize prostitution is safer there.
e movement indoors and reduction in prostitution generally both surely mean that fewer
women are subject to violence. As well, the demand and exploitative side of indoor and un-
derground prostitution can be targeted by law enforcement. Although admittedly resource
intensive, this dierent approach would be more benecial since it would target exploita-
tion, tracking and organized crime.
142. Ibid. at 1189, 1210.
143. Ibid. at 1187, 1200-01, 1210; Karl Ritter, “Sweden prostitution law attracts world interest” USA Today (16
March 2008), online: USA Today .com/news/world/2008-03-16-sweden-
prostitution_N.htm>.
144. Approximately $4.1 million over three years was granted to Swedish police to combat prostitution and traff‌ick-
ing: Ekberg, supra note 134 at 1193. Between January 1999 and April 2004, 734 men were reported under the
law: Ibid. at 1195.
145. Bindel et al., supra note 100 at 26-27; Ekberg, supra note 134 at 1208; André Anwar, “Prostitution Ban Huge
Success in Sweden” Spiegel Online (8, November 2007), online: Spiegel Online
national/europe/0,1518,516030,00.html>.
146. Ekberg, supra note 134 at 1193, 1204; Ritter, supra note 142.
147. The approximate number of purchasers of sexual services has “decreased by 75% to 80%”: Ibid. at 1193-94.
148. Ekberg, supra note 134 at 1194, 1199, 1202, 1209.
149. Bindel et al., supra note 100 at 25, 27; Ritter, supra note 143.
150. Bindel et al., supra note 100 at 25.
151. Ibid. at 27.
152. McDonald, supra note 70 at 199; Anwar, supra note 144.
Another concern with the Swedish regime is that the “good” johns have been deterred and
the frequency of more violent johns has increased. Although this may unfortunately
be true, surely these violent johns were already in existence, yet now are more exposed. As
well, regardless of the legal regime adopted, prostitutes will likely always be susceptible to
violence. us, the primary focus should be on getting street prostitutes o the street and
out of the trade, which can only be done by alleviating the poverty that put them there in
the rst place. Lastly, there has been criticism that Sweden has not provided enough sup-
port services for prostitutes; this has been improving and now some of the Swedish legis-
lation’s most avid critics feel it has been benecial overall.
Ultimately, I think that the Swedish model, in comparison to legalization and decriminal-
ization, has yielded the most benecial results. Rather than normalizing prostitution, asym-
metrical criminalization still problematizes prostitution and thus does not support the
view that it is a legitimate option for poor women with few, if any, options. us, there can
be a greater focus on enabling women who want to leave prostitution to do so. Although
violence is still a problem associated with prostitution in Sweden, as it is wherever prosti-
tution is found, at least Sweden is moving in the direction of minimizing the number of
women exposed to it by minimizing prostitution and the number of prostitutes. Since the
Swedish model reduces prostitution by making the market for the sex trade and sex tourism
less lucrative, and additionally decreases tracking, child prostitution and stigma, I argue
it is the best model to incorporate within the Canadian context.
IV. THE SWEDISH MODEL IN CANADA
Ultimately, the Swedish model will best promote the objectives behind Canada’s current leg-
islation — lessening nuisance and exploitation — as well as the common feminist goals of
lessening stigma, violence and empowering women in prostitution. e Swedish model is
also consistent with Canada’s approach to similarly “contested commodities” in the AHRA
and substantive equality under the Charter. us, I argue it is the best approach for Canada.
e Swedish model upholds the common feminist goals of lessening stigma and violence
and empowering prostitutes. First, as in Sweden, the decriminalization of prostitutes and
criminalization of johns, pimps, trackers and proteers will appropriately shi the stigma
attributed to the sale of sexual services from prostitutes to the demand and exploitative side
of prostitution. is asymmetrical criminalization will emphasize that most women engage
in prostitution because they lack economic alternatives, for which they should not be crim-
inalized. Prostitutes oen do the best they can with limited options; to penalize them is un-
just and only renders them more vulnerable. Second, since decriminalizing prostitutes will
likely lessen their stigma and vulnerability, this will hopefully lessen violence. Although vi-
olence will likely always be present in prostitution, the Swedish model, by decreasing the
number of prostitutes, will cause fewer women to be exposed to it. Decreasing street pros-
titution may also enable prostitutes to leave the trade or, if full-decriminalization feminists
are correct about Sweden, move indoors and be relatively safer. Furthermore, the decrimi-
153. It is important not to confuse my use of the term “frequency” with the term “number.” I am not implying that
the number of violent johns has increased in Sweden; rather, I mean that their frequency has increased or
grown larger within the now smaller pool of johns generally.
154. Anwar, supra note 145.
155. Ibid.
82 wAPPEAL VOLUME 15
APPEAL VOLUME 15 w83
nalization of prostitutes will lessen their adversarial relations with police, allowing them to
more readily report violent johns, exploitation and human tracking. Asymmetrical crim-
inalization may also ameliorate prostitutes’ disadvantaged position in the exchange. Since
prostitutes gain a legal advantage over criminalized johns, pimps and proteers, this en-
ables them to more readily report abuse. is legal advantage may elicit more care for pros-
titutes; those criminalized will have a vested interest in ensuring prostitutes’ contentment
in the exchange to ensure that they are not reported.
In terms of the objectives behind the current legislation, lessening nuisance and exploita-
tion, the Swedish model seems to be the best way to achieve these ends in Canada. First,
there has been an obvious decrease in street prostitution in Sweden due to a decrease in
prostitution more generally and support for women working in street prostitution to exit.
erefore, public nuisance has also decreased. Second, exploitation by pimps, trackers
and proteers living o the avails has also decreased under the Swedish regime since these
individuals and johns are targeted and more subject to legal repercussions, causing less de-
mand for sexual services. is decreased demand makes the sex market less lucrative,
which in turn lessens the economic incentive to view prostitution as protable. erefore,
as a model of deterrence and prevention, the Swedish model, backed up by adequate en-
forcement, could cause a marked decrease in prostitution, which would in turn aect a de-
crease in nuisance and exploitation also.
e Swedish model’s treatment of embodied sexuality, by criminalizing the demand rather
than supply side, is also consonant with the treatment of other “contested commodities,
such as ova, sperm, embryos and services like surrogacy, in Canada. e AHRA regulates
these “contested commodities” by prohibiting, or acting as an intermediary in, their pur-
chase, yet it does not criminalize their sale. If these prohibitions relating to purchase are
violated, penalties include incarceration and/or hey nes. Similarly, the Swedish model
criminalizes the purchase of, or acting as an intermediary (i.e. a pimp or proteer) in the
purchase of, sexual services. us, the Swedish model can be seen as seamlessly adopting
the same asymmetrical approach to the criminalization of contested commodities already
embodied under the AHRA in Canada.
e AHRA and the Swedish model also reect Radin’s suggested approach to selling per-
sonal attributes in a nonideal world. In terms of the AHRA, the asymmetrical criminaliza-
tion of “contested commodities” is informed by “et hical concerns” about the commercial
exploitation and commodication of reproductive capacities, expressed in s. (f) of the
AHRA, which states that the “Parliament of Canada recognizes and declares that trade in the
reproductive capabilities of women and men and the exploitation of children, women and
men for commercial ends raise health and ethical concerns that justify their prohibition.”
ese “ethical concerns” are analogous to anxieties surrounding the commercialization and
commodication of women’s embodied sexuality. Radin would likely assert that these anx-
ieties attach to reproductive capacities as well as sexuality because their sale implicates bod-
ily integrity and raises concerns that a “slippery slope” to market domination could result.
Radin’s resolution of incomplete commodication, embodied in the AHRA and the Swedish
model as asymmetrical criminalization, “protect[s] poor women from [the] degradation
156. AHRA, supra note 19 at ss. 6 and 7.
157. Ibid. at s. 60.
158. Ibid. at s. 2(f).
and danger” they would otherwise be exposed to by criminalization, while also “check[ing]
the domino eect” and increased commercial exploitation that would arise from making
these personal attributes monetizable within the capitalist market.
Furthermore, the Swedish model and the AHRA are both attuned to Radin’s concern of
the “double bind” such that those most willing to commodify their bodies — individuals
marginalized along race, class and gender lines — are not criminalized or commercially ex-
ploited by purchasers and proteers. us, the Swedish model and AHRA are both worthy
approaches in the Canadian context for they attempt to remedy inequality, rather than en-
trench it further. erefore, the Swedish model is consonant with another aspect of con-
tested commodities articulated in the AHRA: the need to protect society’s most
socio-economically vulnerable members. is parallel further justies incorporating the
Swedish model in Canada since the policy direction under the Swedish model is consistent
with the policy direction embodied in the AHRA.
e Swedish model also attempts to remedy the inequality of prostitutes in keeping with
substantive equality under s.  of the Charter. Although the criminalization of the pur-
chasers rather than sellers of sexual services may be viewed as “reverse discrimination
against purchasers or adverse eects discrimination against men, substantive equality “does
not necessarily mean identical treatment”for those involved in the prostitution exchange.
Rather, substantive equality recognizes that promoting equality in a context of inequality
sometimes requires treating dierently-situated people dierently in order to aect justice
and equality. e Swedish model, which shis the balance of power in the prostitution ex-
change and works to ameliorate the stigma, gender-biased criminalization and extreme
forms of violence that prostitutes are exposed to by society and our current laws, will surely
be constitutionally valid as armative action law in Canada. As Abella J. stated in Kapp,
the “law ... may be experimental. If the sincere purpose is to promote equality by amelio-
rating the conditions of a disadvantaged group, the government should be given some lee-
way to adopt innovative” laws. e Swedish model is precisely the type of innovative legal
model that could promote women in prostitution’s substantive equality in Canada.
CONCLUSION AND ADDITIONAL SUGGESTIONS FOR CHANGE
As in any approach to prostitution, women will not be empowered to leave prostitution
unless the needs that drew them into it are met. Since most of the reasons women enter
prostitution stem from poverty and disadvantage, there must be better social services to ad-
dress these realities for anything to be fundamentally altered. As well, exit programs are ab-
solutely essential in enabling women to leave prostitution. Hopefully women’s lives will be
viewed as valuable enough that the provincial and federal governments appropriately al-
locate funding to such programs and assist those most in need by providing a better social
welfare regime. Furthermore, education about the reasons women enter prostitution, as is
commonly done in john schools, is necessary to raise social awareness of the disadvantage
and violence that prostitutes are subject to, such that stigma and discrimination against
159. Radin, supra note 22 at 1924.
160. Kapp, supra note 24 at para. 15.
161. A “purpose-driven approach” is adopted in assessing an aff‌irmative action law under s. 15(2) of the Canadian
Charter of Rights and Freedoms: Ibid. at para. 47.
162. Ibid.
84 wAPPEAL VOLUME 15
APPEAL VOLUME 15 w85
prostitutes are ended. Also, policing strategies targeting tracking, exploitation, child pros-
titution and violent johns are essential.
A middle-ground approach is still possible between the full-decriminalization and aboli-
tionist approaches to law reform: the Swedish model does not necessarily preclude the ex-
istence of certain exceptions to the starting point that full, voluntary and meaningful
consent is presumed absent in prostitution. For those who claim they have chosen prosti-
tution, exemptions could be given to prostitute-run, non-prot co-operatives such that
prostitutes could safely self-regulate; ensuring that prostitutes keep the full consideration
they are paid would mean third party exploitation is precluded. I understand this modi-
cation is a concession that most abolitionists will disagree with, but it is perhaps the best
way to achieve a middle ground between the two feminist positions and ensure that pros-
titution, when it does occur, happens in a safe, non-exploitive environment that still pre-
cludes a booming sex trade. Sweden’s “zero tolerance” approach to prostitution, in which
no exemptions are permitted, is perhaps too rigid in a context where we agree that some
prostitutes can choose prostitution. As well, co-operatives could still be regulated by the
government to deter abuse. Of course, it is imperative that any change to the laws should
be informed by consultation with prostitutes.
In a speech entitled “Prostitution and Male Supremacy” and in response to her own rhetor-
ical query, “Prostitution: what is it?”, the late Andrea Dworkin stated that prostitution “is
the use of a woman’s body for sex by a man, he pays money, he does what he wants. e
minute you move away from what it really is, you move away from prostitution into the
world of ideas.” In this basic sense, prostitution is not so much about women. Rather,
prostitution is about the men who pay to be sexually serviced; it is about the money that
women need; and it is about the larger context of hierarchy and gender inequity that make
prostitution even an option. However, if we are to focus on women in prostitution, then as
long as we remain in the “world of ideas”, we must also strive to honour the women in-
volved in prostitution and the reality that their lives are at stake.
If keeping women engaged in prostitution alive and if lessening stigma, deterring violence
and empowering prostitutes are to be part of that focus, then the Swedish model— com-
bined with exit programs as well as an adequate social welfare and law enforcement
regime— is the most desirable starting point from which to engage in further conversations
about how to move forward. Ultimately, the Swedish model, with the presumption that
full, meaningful and voluntary consent and choice are oen absent in prostitution, serves
as the best starting point for legal reform. Not only does the Swedish model incorporate the
legislative objectives of our current prostitution laws (lessening prostitution-related nui-
sance and exploitation), it also ensures that another signicant policy direction, the pro-
tection of society’s most socio-economically vulnerable members, is implemented also.
Such a model upholds the well-being and dignity of the centred woman, our Canadian
commitment to substantive equality, and yet does not forestall progress to a better society
for prostitutes and women more generally.
163. Ekbert, supra note 134 at 1187.
164. Dworkin, “Prostitution and Male Supremacy”, supra note 1 at 1.

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