Criminalizing buyers, not sellers may enhance gender equity, but critics warn of increased danger to sex workers.
Terri Jean Bedford, whose bawdy house was raided in 1994, was one of three applicants in the recent constitutional challenge of Canada's prostitution laws. Source: Wikipedia.
The recent decision by Ontario's court of appeal to strike down the provision that criminalizes brothels has been lauded as a landmark ruling and a victory for women and feminists across Canada.
Yet others contend that the judgment left the marginalization and criminalization of women working the street unaddressed, and that striking down the bawdy house law will not make prostitution any safer.
"It's very frustrating to me to see the court not really recognizing that taking the very same women and moving them indoors doesn't actually change anything about the circumstances that they're in," said Janine Benedet, an associate professor at the UBC Faculty of Law and co-counsel for the Women's Coalition for the Abolition of Prostitution, who argued on the group's behalf at the trial.
"Indoors is where some of the most egregious violence happens; indoors is where there are kids and there is trafficking," she added. "Indoors isn't this paradise that it's made out to be."
If the decriminalization of brothels isn't a solution in terms of making women safer, what is? The answer, say some proponents, may be a Canadianized version of what's commonly known as the Nordic model.
Beginning with the passage of Sweden's Sex Purchase Act in 1999 and adopted by Sweden, Norway and Iceland, the Nordic model of law decriminalizes prostituted women, but criminalizes pimps and johns. It combines a central goal of gender equity with support for women who wish to leave the sex industry, also known as "exiting services."
Case about brothels, not the streets
While the court struck down the bawdy house law, it kept the provision that outlaws public communication for the purposes of prostitution. While some say they're disappointed the decision failed to change the communication law that effectively criminalizes street prostitution, the case was never really about women working on the street.
Terri Jean Bedford, one of three applicants who challenged Canada's prostitution laws on the basis that they were unconstitutional, said: "I was mainly concerned with winning the bawdy house law because of what happened to me at Thornhill. I've been vindicated now."
Bedford's "Bondage Bungalow" in Thornhill, Ontario was raided in 1994. She was charged with keeping a common bawdy house, leading her to challenge the legislation.
"They threw me out of house and home. It was unconstitutional."
Benedet was not surprised the court opted to keep the majority of criminalization on the street, and says the decision changes little.
"What we have to recognize is that in Canada our policing of these various prostitution provisions is very much skewed towards policing women on the street.... Across Canada you see far more arrests under the communicating provision, so as a result we had a kind of de facto decriminalization of massage parlours and indoor venues."
It is the most marginalized women who tend to be on the street, engaged in survival sex work. These are women with few to no other choices, and are often poor, addicted and racialized.
Benedet added: "When the (court case) applicants were asked directly whether they would be okay with keeping criminalization on the street but not in brothels, they said they would accept that, because the heart of this case is about brothels."
Nordic way promotes gender equity: sex worker
Gunilla Ekberg, a Swedish lawyer who was central in the creation and implementation of the model in Sweden says the adoption of the Nordic model was a watershed moment for the country.
"We went from only focusing on the victims and their 'morals' to saying that the culture of prostitution that we had before is not acceptable. We began to look at prostitution as a hindrance to gender equality," the lawyer said.
While legislative change was key, Ekberg points out that what was also important was that "we had certain principles that informed everything we did." The police, for example, were educated on the implementation of the law and their own approach. They were taught that it is not the women who are the criminals, but rather the buyers.