The Myths of Bedford v. Canada: Why decriminalizing prostitution won’t help

This is a guest post by Laura Johnston, re-printed with the permission of the author and originally published at The F Word.  Laura is a law student who worked for Janine Benedet, counsel for the Women’s Coalition for the Abolition of Prostitution, an intervener in Bedford v. Canada case heard in the Ontario Court of Appeal in June 2011.

I recently worked as a research assistant for counsel for one of the interveners in the Bedford v. Canada appeal. Bedford v. Canada challenges three Criminal Code provisions that criminalize parts of the prostitution industry as unconstitutional. In short, the provisions are communicating in a public place for the purpose of prostitution (which essentially criminalizes street prostitution), bawdy house (which criminalizes brothels) and living on the avails of prostitution (which criminalizes parasitically living off another person’s prostitution or pimping). The applicants, Terri-Jean Bedford, Amy Lebovtich and Valerie Scott argue that these Criminal Code provisions violate section 7 of the Canadian Charter of Rights and Freedoms – the right to life, liberty and security of the person in such a way that is not in accordance with the principles of fundamental justice. In September 2010, Justice Himmel ruled for the Ontario Superior Court that the 3 provisions were unconstitutional and struck them down. That decision has been suspended pending the appeal, which was heard in June in the Ontario Court of Appeal. The position of the Attorneys General of Canada and Ontario is that the prostitution laws on the books should stay exactly as they are. The position of the applicants is that all 3 provisions should be struck down. We are currently waiting for a judgment from the Ontario Court of Appeal as to whether Justice Himmel’s decision will be upheld or overturned.

The argument that decriminalizing prostitution will improve conditions for prostituted women sounds appealing on its surface. The first time I heard it I thought it made sense. But when I began volunteering in a rape crisis centre and shelter and met women in prostitution, I realized that decriminalization wouldn’t address the reality of women’s lives. This piece is my analysis from my experiences doing front line work, and in working on the Bedford v. Canada case. I’m going to argue that the idea women can be made safer by decriminalizing prostitution relies on a number of myths. I don’t think the position taken by the applicants or the government will help prostituted women, and in my conclusion, I’m going to discuss a third alternative, which was proposed by the intervener I did research for – the Women’s Coalition for the Abolition of Prostitution.

There were 88 volumes of evidence – over 26,000 pages – submitted at trial. The evidence includes research, articles, and reports as well as affidavits given by expert witnesses and by women with experience in prostitution. All of the evidence I refer to in this piece is from the public trial record.
I want to make a brief note that I’m going to use the language ‘prostituted women’. I acknowledge that some prostituted people are male and transgendered. However, the overwhelming majority of prostituted people are female, and the overwhelming majority of pimps and johns are male. To de-gender the language of prostitution is to hide the fact that prostitution is a gendered industry. I use ‘prostituted’ because I’ve been asked by women with experience in prostitution to use that term, and not normalize the harm that was done to them by using language that suggests it’s a job like any other. But I also use it to reflect the fact that prostitution is largely something done by men’s choices and actions to women.

Myth #1 – This case is about the majority of prostituted women
Alan Young, counsel for the applicants, readily made the concession that their arguments don’t apply to the majority of women in prostitution. When one of the judges on the Court of Appeal interrupted him with the comment that his arguments seemed to assume women were voluntarily in the trade, he responded, “some sex workers have no choice, for some it is a choice. The point is there are people – 5, 10, 20% of the population – who want to do sex work and the law won’t let them.” The judge then asked how his argument impacted women who were coerced into prostitution. Young responded, “it doesn’t. That’s a social problem that social welfare agencies and social workers need to solve. I don’t want to sound flippant, but we’re not here to solve a crisis.”

The judge asked, “so what you’re arguing today only applies to women voluntarily in the trade?”
Young said, “most definitely.”

His estimates may actually be accurate. In a study submitted at trial with 854 women in 9 countries, including Canada, 89% of women interviewed said they wanted out of prostitution. In another study submitted at trial conducted in the downtown eastside of Vancouver, 95% of prostituted women interviewed said they wanted out of prostitution

What are the forces that keep the majority of women in prostitution while they say they want out? It was clear from both the research on the trial record and the affidavits of the women that prostituted women have many things in common. Nearly all the women said poverty is the reason they entered prostitution. Terri-Jean Bedford said in cross-examination, “poverty nips at your heels”. Another woman who gave an affidavit for the applicants said that she was trying to support a child with a serious heart condition and welfare wasn’t enough. The average age of entry into prostitution was reported as 14 and 15 by the research on the record. Many of the women who gave affidavits entered as teenagers – in fact, two of the applicants entered underage and the other entered at 18. Aboriginal women and racialized women are overrepresented in the prostitution industry. Many prostituted women have been incested, or abused as children. Many were removed from their families as children and placed in state care. Generally, they have low levels of education – many of the women who gave affidavits had not finished high school. These are just a few of the factors that maintain women’s prostitution.

The laws addressing prostitution can also constrain or facilitate women’s ability to exit prostitution. Criminalizing prostituted women contributes to their continued prostitution and is not a solution. A woman who has been convicted of a prostitution offence has even more barriers to exit prostitution because of a criminal record and restrictions on potential jobs.

But I don’t agree with the applicant’s contention that decriminalizing johns and pimps will have no impact on the majority of women. I think that removing the ability to police men’s actions in prostitution will increase the harm to the vast majority of women who want out. Evidence from other countries shows that removing the deterrence of the criminal law for men leads to increased demand for prostitution and a proliferation of both legal and illegal prostitution industries. Why make law based on the 10% of women who say they want to continue in prostitution, rather than the 90% who say they want out?

Myth #2 – Decriminalization will move women indoors and off the streets
The applicants claim that street prostitution is the worst form of prostitution, and that women prostituted on the street will be able to move indoors following decriminalization. However, evidence from other countries that have decriminalized brothels shows that women prostituted on the street do not move indoors. Even Justice Himmel, who made the decision at trial that is being appealed, noted that, “while it was hoped that the PRA [Prostitution Reform Act, 2003 of New Zealand] would lead street-based prostitutes (11 per cent of the New Zealand sex trade) to move indoors, evidence suggests there is little movement between the street and indoor sectors of the industry.” It’s also clear from the record that legalizing prostitution in the Netherlands has not met its goal of eliminating street prostitution. In Amsterdam, there are well established zones for street prostitution, including concrete stalls for men to drive their cars into to use prostituted women. Justice Himmel remarked on the ‘safety’ of these stalls by pointing out that women might be able to hear each other screaming when they’re with a violent john.

I’ve been told by many women with experience in prostitution that the first rule in a brothel is that you can’t be drunk or high. And the women prostituted in a legal brothel have to undergo regular screening for sexually transmitted infections. (Though no legalized regime requires johns undergo STI checks). Given that many of the women prostituted on the street struggle with addiction and illness, it’s doubtful they would even be allowed in brothels.

Myth #3 – Decriminalization will make prostitution indoors safe
The applicants claim that criminalizing communication for the purpose of prostitution contributes to men’s violence because women prostituted on the street have to move to darker, more isolated areas to avoid arrest. But if it’s true that the current laws endanger women by pushing them into isolated areas with fewer witnesses, then pushing these women completely out of public view behind the closed door of a brothel will not make them safer.

Arguments that women’s risk is higher on the street than indoors or that victimization is less likely to occur indoors imply that violence just sort of accidentally happens and that ‘victimization’ and ‘risk’ are things that belong to women. But women are not attacking themselves. The outdoors, the streets, the dark is not attacking women. Johns and pimps are attacking women. Since men’s behaviour is the source of violence in prostitution, if we wanted to address violence in prostitution, we would try to change men’s behaviour, not alter women’s physical location.

Women who gave affidavits of their experience in prostitution said that prostituting indoors is not safe. Some of the women said they preferred prostitution on the street because they had more control and they got to keep more of their earnings. Prostituting indoors means the brothel owner negotiates with johns. This person, whether they are called pimp, manager, or agency owner, has a vested economic interest in women pleasing johns, and is more likely to agree to johns’ demands to have sex without condoms and to engage in sexual acts women themselves wouldn’t agree to.

One of the applicants, Amy Lebovtich, reported in her affidavit that when she was working in a brothel a john tied her up and raped her. No one intervened and she was left tied up for nearly half an hour until someone found her. Another woman who gave an affidavit had this to say: “I have been raped and sodomized by johns while working in massage parlours, and was too scared and embarrassed to make any noise, and wouldn’t have even known who to call. Sometimes I would hear other girls screaming or crying and I didn’t know if it was part of an act or real. I never intervened…Screams in the house were frequent and no one ever got involved.” It isn’t exactly good business to report a violent “customer” to the police, even in a legalized regime.

Finally, there was ample evidence on the trial record that legal brothels in decriminalized countries serve as covers for child prostitution, trafficking in women and links to organized crime. In the Netherlands and Australia, the illegal sector comprises more than half of the prostitution industry. The United Nations Special Rapporteur on Violence Against Women reported that in 2004 alone, 405 cases of trafficking in women were discovered in the Netherlands. The Dutch expert reported that there have been at least 50 documented murders of prostituted women in the Netherlands between 1992 and 2004 – several of these women were, “murdered in a brothel or ‘window’, and a few of them were murdered at home by their pimp.” She summarized her findings by saying, “…the new prostitution legislation of 2000 has not meant that prostitutes are now more safe. The ability to work indoors, the decriminalization of organizing prostitution and the legalization of sex work have not removed the risk of being beaten, abused or coerced…In short, the new legislation’s goals of reducing the violence against women and the exploitation of women have not been met.”

Myth #4 – Decriminalization will make prostituted women on the street safer
The applicants relied on the argument that in an effort to avoid being arrested for communicating for the purpose of prostitution, prostituted women would hurry negotiation with a john before getting in his car. They argued that this decreases the time a woman has to screen a john to see if he will become violent.
To suggest that if a woman had an extra few minutes, or even an extra few hours to screen that she could identify men who will be violent is a ludicrously dangerous idea. It’s as ludicrous as suggesting that a woman should have known that the man she spent all night ‘screening’ on a date was going to rape her. It’s as ludicrous as suggesting that a woman should have known the boyfriend she had been ‘screening’ in a relationship for a year was going to hit her. On average, one woman a week is killed in Canada by her boyfriend or husband who she had ‘screened’, lived with, loved, and raised children with for years. If the women’s movement has revealed anything, it’s that any man can choose to be violent and the woman he exacts it on is not responsible for that violence.

The idea of screening doesn’t address the violence in prostitution. In fact, it accepts that violent johns exist and will continue to exist and will continue to try to pick women up. It downloads state responsibility to stop men’s violence onto individual women. No matter how much ‘training’ or time women have, if nothing is done to stop violent johns, some will succeed. It accepts that some woman somewhere will not be “good enough” at screening or will be desperate enough for money that she will agree to get into the car even if she thinks the john will be violent. To suggest that a prostituted woman should be able to tell how a john is going to behave in the future is victim blaming taken to the extreme. Now, when a prostituted woman gets assaulted, raped, strangled or murdered it will be because she failed to screen her john properly.

Myth #5 – Decriminalization will enable prostituted women to hire bodyguards or drivers and prevent loving partners and children from being charged for pimping
The applicants claim that the prohibition against living on the avails of prostitution prevents prostituted women from hiring protection in the form of security guards and drivers. I’ve also heard more outlandish claims that a loving spouse or boyfriend or a disabled child of a prostituted woman may be charged through this provision. That doesn’t happen. The Supreme Court of Canada established in R. v. Downey that the legal definition of living on the avails is someone “living parasitically off a prostitute’s earnings”. That means it’s not enough to be financially dependent on someone having a source of income. You must have a vested economic interest in another person’s continued prostitution to be convicted.

If there were a supportive, loving husband or partner or child who shared living expenses with a woman earning money through prostitution, but took no part in encouraging, pressuring, or forcing that woman to continue, who would report this to the police? And if it did come to the attention of the police it’s highly unlikely that those individuals would be charged because prosecutorial discretion means that the crown won’t proceed with a charge unless it’s in the public’s interest and there is a likelihood of conviction. In R. v. Grillo, the Ontario Court of Appeal commented that, “a person may choose to marry or live with a prostitute without incurring criminal responsibility.”

Pimps who prostitute women are not supportive partners or beneficent bodyguards. They are men who use physical and sexual violence, drugs, and psychological manipulation, to make money off women. A search of the case law of people charged for living on the avails reveals just that. Not one of the cases convicted a loving and supportive person who happened to be the partner of a prostituted woman. In their affidavits to the court, many of the women with experience in prostitution revealed that the man they called their boyfriend was their pimp.

The benefit of the living on the avails charge is that it is one of the only charges in the criminal code related to violence against women that police can proceed on without the statement or testimony from the woman. The other criminal code provisions that pro-prostitution lobbyists point to for dealing with exploitive pimps require a woman to make a statement and testify against the very man who is abusing her. A lot of prostituted women are too scared for their safety to do that. Removing this provision takes away one of the only methods the state has for interfering with pimps.

Myth #6 – There are successful examples of decriminalized prostitution regimes
Young claimed that in countries where prostitution has been decriminalized, things are getting better and no one’s turning back the clock and saying they’ve made a mistake. That’s not true. Sweden did ‘turn back the clock’ in 1999 when they moved from a decriminalized regime to one in which johns and pimps were criminalized and prostituted women were decriminalized. The mayor of Amsterdam announced at a press conference in 2007 that the decriminalization of prostitution has failed. “Almost five years after the lifting of the brothel ban, we have to acknowledge that the aims of the law have not been reached,” said Cohen. “Lately we’ve received more and more signals that abuse still continues.” An Amsterdam police officer quoted in the media said, “we are in the midst of modern slavery”. The Dutch expert reported in her affidavit that, “the Dutch government is now planning to change the law once again. This is because the legislation of 2000 has not met some of its most important objectives – that of severing the link between prostitution and crime, improving the working conditions of all prostitutes, and to decrease trafficking in women and coerced prostitution.” Research on the trial record from Germany, Australia and New Zealand has shown that decriminalization has not improved conditions in prostitution.

Reports from these regimes consistently show that the prostitution industry – legal and illegal – expands following decriminalization. This makes sense. Removing criminal sanctions against prostitution sends a message to men that their prostitution behaviour is acceptable. In a capitalist system, increased competition between prostitution “businesses” leads to decreases in price, increased demand for riskier and more violent sex acts and increased pressure on women to tolerate the “customer’s” behaviour.

Myth #7 – Decriminalization will prevent another predator like Pickton
In his arguments, Young often used phrases like, “so women don’t end up on a pig farm” and “so women don’t go off with another Pickton”. But there is nothing about a legalized regime that would have prevented Pickton from killing women. It’s highly unlikely that the women Pickton killed would be allowed in a legal brothel. But even if they were, Pickton didn’t use brothels, he picked up women on the street.

The idea that women can “screen” for violent johns falls apart when you look at Pickton, who was a well known john. Women and community groups in the downtown eastside will tell you that Pickton used to take prostituted women and their kids to the PNE fairground. Some of the women he killed had been to his farm already and had come back safely. They (like you or I) could not predict his violence. But even after women became scared of Pickton, he admitted during his trial that if he used extra tactics, like offering them more money and bringing a woman passenger to reassure them, he was able to convince them to come out to his farm. Women living in poverty do not always have the luxury of refusing johns they are nervous about. If we do nothing to stop johns, they will find a woman somewhere who will go with them.

Since the applicants stated that this case was only about the 10% of women in prostitution voluntarily, there is a fundamental contradiction in using the memories of Pickton’s victims to further their arguments. When one of the judges asked Young if it would be acceptable to his clients to leave street prostitution criminalized and decriminalize keeping a common bawdy house, he said yes. He went on to explain that the heart of this case was the bawdy house provision. Which means he would be fine to continue criminalizing the very women whose murders he’s using as traction to legalize brothels.

This case is about ensuring men’s sexual access to women and deciding which women will be accessible
Decriminalization will ensure that brothels can be run, men can earn money on the prostitution of women and demand sexual access to women – all without fear of criminal sanction. If we accept men’s demand for prostitution as inevitable, we accept that there must be a group of women who will meet this demand. I think this case is really about deciding which women will bear the brunt of men’s demand for prostitution. The fact that the poor, the Aboriginal, the racialized, the addicted, and the abused are overrepresented among prostituted women is not a coincidence. Nor as Young said, are these facts “smokescreens” to talking about prostitution. These are very disturbing indicators that our society is marked by inequality, and it is this context of inequality that creates and supplies a pool of women for prostitution.

But Young was careful to avoid talking about this. In fact, he didn’t mention the prostitution of First Nations women until one of the judges asked him whether many of the women were of Aboriginal descent. Young responded, “yes and no.” He went on to say that while it wasn’t really clear, the point was that if one person moves indoors and doesn’t end up on a pig farm it would be worth it.

Prostitution is one of the devastating impacts that colonialism has had on First Nations women. This must be forefront in any discussion on prostitution. First Nations women in prostitution bear the most violence and humiliation for the least money. Aboriginal women have come out in force to resist prostitution. I encourage you to read the statements on prostitution made by groups like the Native Women’s Association of Canada or the Aboriginal Women’s Action Network.

But there were a lot of voices that couldn’t and didn’t make it into that courtroom. Terri-Jean Bedford admitted in an interview with the Toronto Star that a dozen people were paying the legal bills for this case, 5 of whom were her former johns. She said they wished to remain anonymous, but that they have paid “huge sums of money” and provided her with a house, a job and money. So, there are johns paying for this case to move forward.

What is the solution?
Although I think the position taken by the applicants will further harm prostituted women, the position taken by the government that continues to criminalize prostituted women is also unacceptable. The prohibition against communicating for the purpose of prostitution treats the actors in the prostitution industry – the johns who choose to demand sex for money and the prostituted women – as if they had equal power. They don’t. Criminalizing women further entrenches the harm to them and will be another barrier to them exiting prostitution.

But there was a third position before the court, which was argued by the intervener, The Women’s Coalition for the Abolition of Prostitution. This Coalition is made up of 7 Canadian women’s groups: The Native Women’s Association of Canada, the Canadian Association of Elizabeth Fry Societies, The Canadian Association of Sexual Assault Centres, Vancouver Rape Relief Society, Action ontarienne contre la violence faite aux femmes, Concertation des luttes contre l’exploitation sexuelle, and Regroupement québécois des centres d’aide et de lutte contre les agressions à caractère sexuel. The membership of these groups represents thousands of women and several decades of anti-violence and feminist expertise.

The Women’s Coalition takes the position that prostitution is a harm to women perpetrated by pimps and johns that should be abolished. They argue that prostitution exists because there is male demand for it, and it is this demand that should be criminalized. They asked the court to criminalize the prostitution behaviour of pimps and johns and decriminalize prostituted women. Legally, this means that the Women’s Coalition argued that the provisions criminalizing living on the avails of prostitution and keeping a common bawdy house were constitutional in whole and that the provision criminalizing communicating for the purpose of prostitution was unconstitutional to the extent it applied to prostituted women but was constitutional in its application to johns. I encourage you to read the factum submitted by the Women’s Coalition.

This legal model was pioneered by Sweden, but has since been adopted by other countries like Norway and Iceland. Since Sweden took the step in 1999 to criminalize pimping and buying sex and decriminalize selling sex, the majority of women prostituted in that country have been able to exit prostitution. They accompanied this legislative change with a public education campaign aimed at deterring men’s demand for prostitution and social service programs to provide exit services, housing, detox, education and job training to prostituted women. The 11 year report published recently by an independent researcher showed that the prostitution industry had shrunk dramatically while their neighbouring countries’ prostitution industries have grown. This comprehensive approach is something that the Canadian Parliament should enact, and we can all do something to lobby them to do that.

When counsel for the Women’s Coalition finished her arguments, the court adjourned for a break and conversations broke out. The most common reaction I heard was, “wow, that was an effective argument, but you’re never going to abolish prostitution.” I heard a lawyer say, “you wanna abolish prostitution? That’d be great, go ahead, I’d love to see you do that”.

I want to address the “prostitution is inevitable” argument as conclusion because I’ve heard it so many times and because it’s so illogical. In response, I’d first of all like to point out that that we almost never decide to remove criminal laws prohibiting something simply because it’s been around for a long time. Can you imagine someone arguing that murder should be decriminalized because it’s been happening as far back as we have documented history of, so we might as well legalize it?

Secondly, “you can’t stop it, so why try” has been the response to many social movements that tried to address deeply entrenched systemic inequality. When abolitionists argued that slavery in the USA should be abolished, they were met with arguments that society could never exist without slavery, many slaves were happy, slavery should just be reformed so there’s less killings, whippings and beatings. I’ve been told by anti-violence feminists who were activists in the 1970’s that when they suggested that wife battery was wrong, many resisted by saying wife battery could never be abolished, women should just go stay with their mom for a few days to get rest, then make peace with her man. But we do say as a society now that slavery and wife battery is unacceptable.

Finally, there is no logic in the supposition that because something exists it will always exist. It is insulting to men to suggest that they are incapable of changing their prostitution behaviour. I believe men are capable of treating others with respect, forming intimate relationships and sharing consensual sexual pleasure with others. The only world we have lived in is one controlled by the power hierarchies of sexism, racism and classism. I have every reason to believe that in a world free from these social inequalities, prostitution will not exist.


*All evidence and research cited in this article is from the public trial record


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