In 1917, Alice Jamieson, one of only two female magistrates in the British Empire at the time, heard the case of Lizzie Cyr. Jamieson convicted Cyr of vagrancy and sentenced her to six months of hard labour. The crime of “vagrancy” was a way to regulate or criminalize prostitution. Cyr’s lawyer appealed and argued that the judgment could not stand because Jamieson, the magistrate, as a woman, was not a person.
Jamieson was appointed a magistrate in the first place to preside over women’s court. The year before, Emily Murphy, her fellow female magistrate, had made a big stink about not being allowed to attend a trial of a woman for prostitution. She said that if prostitution cases were not acceptable for “mixed company” then the government needed to set up a court presided over by women to try other women. The government agreed and appointed Murphy as a magistrate. Jamieson’s appointment followed shortly after.
The Alberta Supreme Court upheld Jamieson’s right to occupy her position as magistrate and her conviction of Lizzie Cyr stood. This in turn provided the platform from which Emily Murphy and her colleagues, collectively known as the Famous Five, to challenge the British North America Act, which stated that women were not persons.
Fast-forward to today and prostitution is still at the heart of women’s rights in Canada. In 2013, the Supreme Court of Canada struck down the many of the prostitution laws because they were unconstitutional. The SCC gave the government of Canada a year to enact new constitutional laws.
The government decided on adopting the controversial Nordic model of regulating prostitution. The theory behind the Nordic model of regulating prostitution is that all prostitutes are victims. Because these people (mostly women) selling sex are victims, the government as of December 2014 does not criminalize their activities. Instead they criminalize the market for their activities, they make it illegal to purchase sex, to communicate for the purposes of purchasing sex, and to advertise sexual services in exchange for money. They also make it illegal to profit off a person selling sexual services.
So what’s wrong with this? Selling sex is clearly not a job many people would care to have. The new laws protect women by criminalizing men who buy sex. The only people risking jeopardy are the men who facilitate the sex trade by providing a market for it and the pimps that profit off women’s bodies, right? If you criminalize the pimps, then it means women cannot be compelled into selling their bodies for sex, right?
Wrong. In the Bedford decision, the court acknowledges why women engage in prostitution. Some prostitutes will be people who freely choose to engage in prostitution; many, however, “have no meaningful choice but to do so. Ms. Bedford herself stated that she initially prostituted herself 'to make enough money to at least feed myself.'”
“Whether because of financial desperation, drug addictions, mental illness, or compulsion from pimps, they often have little choice but to sell their bodies for money. Realistically, while they may retain some minimal power of choice...these are not people who can be said to be truly 'choosing' a risky line of business” (Canada [Attorney General] v. Bedford, 2013 SCC 72, para 86).
In instituting the new laws, which recognize women as victims of prostitution, the government has not implemented new social strategies to support and assist women in poverty, facing mental health issues, addictions issues, or other issues that arise as a result of marginalization. They have disregarded the SCC's comments on why women turn to prostitution to support themselves.
Worse, they have disregarded the SCCs comments on the unconstitutionality of the government enacting laws which make a risky profession even more unsafe and risky: “The violence of a john does not diminish the role of the state in making a prostitute more vulnerable to that violence.” The new laws, which criminalize the johns, are unlikely to finally now, in the 21st century, stamp out the oldest profession and do not protect women from violent johns.
In Bedford, the SCC examined the various ways women protect themselves while engaging in prostitution. They determined that the safest way for women to conduct business was on an in-call basis. The law as it was before and as it still stands makes it illegal for an in-call prostitution business.
Prior to December 2014, in order to comply with the law, women had to either take to the street (the most risky way of prostituting oneself) or operate on an out-call basis (meeting a john at a hotel room or the john’s residence). An in-call service allows women to screen clients at various stages of the process and have other people on-site or on-call to ensure their safety.
Criminalizing johns for purchasing sex will make it more difficult for prostitutes to verify their client’s identity, which is a key safety measure in prostitution. The john bears all the legal risk in purchasing sex making it more likely that they will take steps to conceal their identity. Furthermore, it means that any street transactions for purchasing sex will likely be conducted in secluded spots where the prostitute is at greater risk.
The new prostitution laws are somewhat reminiscent of the early 1900s when women were not persons and could be convicted of vagrancy for being out in public without a legitimate reason. There was little regard for the social reasons then as to why women engaged in prostitution and no regard for women’s right to choose what to do with their own bodies.
Today, women are considered victims of prostitution without any regard to the social reasons for why women engage in prostitution and in complete disregard for the women, who freely choose prostitution, to choose to do what they want with their own bodies.
For an interesting analysis on vice and women’s rights, see Vivian Namaste’s speech recorded on January 29. For more commentary on the new prostitution laws, see Vancouver criminal defence lawyer Sarah Leamon’s report on Global News.