The Retreat from Legalized Prostitution

Prostitution regulation makes for strange bedfellows. Old-school feminists and social conservatives are largely supportive of the Harper government’s Bill C-36, Canada’s most ambitious attempt at sex industry regulation since the municipal and federal crackdowns on street prostitution in the 1980s. Libertarians and liberals, meanwhile, mainly want the government out of the bawdy houses of the nation. The debate is occurring amid what is probably the most sexually libertine era in Canadian history, where a booming sex trade is evidenced by the cornucopia of multi-media advertising for massage parlours and escorts, strippers, pornography, phone sex and every conceivable fetish service offered by humans of all shapes, sizes, races, genders and sexual orientations.

The Harper Conservatives are rarely accused of being “progressive”, and opponents of Bill C-36 portray it as downright Victorian. The government could have done nothing after the Supreme Court of Canada struck down the country’s prostitution law last year, and left the sex trade virtually unregulated like abortion. Instead they chose to spend some political capital on re-regulation. Critics say it’s a cynical play to the conservative base, but it should at least be recognized that the attempt to reduce prostitution and associated social and criminal pathologies in Canada by curbing demand is, in fact, consistent with a wider trend in the western world towards greater restrictions on sexual commerce.

Bill C-36 borrows heavily from the so-called “Nordic model” of sex industry regulation that was pioneered by Sweden in 1999, and later adopted by other Scandinavian nations. It implicitly treats prostitutes as victims, and shifts the prosecutorial focus onto johns, pimps and traffickers. Bill C-36 would also restrict sex-for-sale advertising, and subsidize the counselling, retraining and redeployment of sex workers.

Although there is little empirical evidence one way or the other, the key assumption in Bill C-36 and laws like it elsewhere is that most women and all children involved in prostitution are coerced into it. They are said to be victims of some combination of economic necessity, childhood sexual abuse, addiction and mental health problems, exploitive pimps and human traffickers. This was the underlying theme of the “report on sexual exploitation and prostitution and its impact on gender equality” issued by the European Parliament’s Committee on Women’s Rights and Gender Equality earlier this year.

A response to growing concerns across Europe about human trafficking fuelling the sex trade, the report asserted that over 60 percent of all human trafficking in Europe is sex industry-related, and one in seven prostitutes in Europe are victims of trafficking, rising to as high as 90 percent in some member states. The report also highlighted correlations between the sex trade and organized crime, children and what it called “modern slavery.”

The alarming tone of the report was a far cry from the laissez-faire attitude towards commercial sex that prevailed in much of western Europe through the late 20th century and beyond. As late as 2001 Germany did away with many of its few remaining legal restrictions on prostitution. The hope and expectation was that minimal but effective regulation would eliminate coercion from the industry and liberate prostitutes from pimps, dangerous johns, traffickers and organized crime.

The ensuing years saw a wave of reports suggesting precisely the opposite had occurred. In 2006, there were widespread allegations that thousands of women and girls had been trafficked into Germany to serve as prostitutes during the FIFA World Cup. The backlash culminated in a devastating mid-2013 damning report in Der Spiegel, among Europe’s most respected newsmagazines. It alleged rampant human trafficking, organized crime and forced prostitution in the German sex industry.

The current German federal government is bringing in strict new regulations to deal with human trafficking, forced prostitution and other abuses of the sex trade. As in Canada, the law borrows from the Nordic model, targeting purchasers of sex who knowingly use the service of forced or trafficked prostitutes.

The Netherlands has been a Mecca for commercial sex seekers for decades. As recently as 2000, it passed legislation further deregulating the industry. But as in Germany, there have been morning-after consequences and regrets. The Netherlands is a key destination for human traffickers, and brothels controlled by criminal gangs are regularly raided. The Dutch government is now in the process of implementing more restrictions and regulations on the sex trade.

Europe as a whole is in fact moving towards the Nordic model or even stricter laws. Spain effectively operates a prohibition regime. Earlier this year the European Parliament passed a resolution calling for all European nations to employ Swedish tactics to combat prostitution. In France legislation similar to Bill C-36 is currently before parliament. The United Kingdom already has laws which punish those who purchase sex from forced or underage prostitutes, and a parliamentary group has recommended full-scale implementation of the Nordic model.

In western countries outside of Europe, only the United States is still officially prohibitionist, with the exception of the state of Nevada. Australia and New Zealand have gone further than any country in deregulating the sex trade. But both are struggling with human traffickers, increasing street prostitution, and brothels operating outside the law, prompting a growing debate about how successful legalization has been for those countries.

The “safe, legal and monitored industry,” a key talking point of many who favour legalized prostitution, is clearly yet to be realized, and many countries are retreating from failed experiments with it. Canada’s Bill C-36 is positioned squarely in the mainstream of international sex industry re-regulation. The Conservative majority in Parliament ensures the law will pass, though many critics are predicting it too will fall afoul of the Charter of Rights and Freedoms and the Supreme Court. No doubt there will be challenges, likely from the same activists who managed to get the previous laws thrown out.

Prime Minister Stephen Harper staked out his position very clearly when the legislation was introduced. “We understand this fundamental truth that the activities around prostitution are illegal because they are bad and harmful for women and for society more broadly,” he said. “They are not harmful because they are illegal; they are illegal because they are harmful.”

This is consistent with the trend in many nations which have liberalized or legalized prostitution and are now having second thoughts, or other nations which are learning from the experience of others. It is not a crusade to restrict prostitution on puritanical moral grounds, but rather an intervention to combat some of the associated ills such as human trafficking. Bill C-36 is by no means a silver bullet that will solve all the problems. But it is a large step in the right direction. Some might even call it “progressive.”


Jeremy Cherlet, a writer based in Edmonton, is a recent graduate of the University of Alberta. He has studied overseas and interned at the German Bundestag and the Konrad-Adenauer-Stiftung, a leading European think tank.

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