p>Despite the fact that prostitu tion has never been an illegal occupation under Canadian law, lawmakers have never cared to address the obvious hazards of working in the business.
Two weeks ago, a team of law students and I launched a constitutional challenge on behalf of Terri Jean Bedford, Valerie Scott and Amy Lebovitch to strike down three provisions of the Criminal Code that we believe significantly contribute to escalating violence against sex trade workers.
As might be expected, some people quickly condemned this legal initiative as yet another ominous sign of the moral decay of Western civilization. I prefer to characterize the lawsuit as a fairly simple occupational health and safety claim.
In recent years, interpersonal violence at work has become the subject of increasing public attention. A 2007 report of the Canadian Centre for Justice Statistics, Criminal Victimization In The Workplace, notes that those in certain employment sectors are more prone to violence, such as those in social assistance or health care services. But it conveniently does not acknowledge the rampant victimization of sex trade workers on the street.
The report states that 69 homicides were committed in the course of legal employment between 2001 and 2005, including 11 taxi drivers, 10 police officers and eight people employed in the bar or restaurant business. It fails to mention that approximately 120 sex trade workers were killed - and dozens of others have disappeared - in the course of their employment between 1991 and 2005. Like most people, statisticians often forget that sex work is legal work.
The ongoing trial of Robert William Pickton has finally brought this issue out of the shadows, but it is a mistake to believe that workplace violence for sex trade workers involves solely the predatory street trolling of psychopathic serial killers. What is often unrecognized is that the daily existence of the sex trade worker on the street is defined by the threat of assault and psychological terror. Due to the legal marginalization and stigmatizing of sex work, this violence is simply ignored or routinely addressed with utter indifference by public officials.
With no political solution on the horizon, the constitutional challenge has been brought on the basis of the recognized constitutional doctrine that the principles of fundamental justice under section 7 of the Charter Of Rights prohibit the enactment of arbitrary and irrational laws that do greater harm than good. (See sidebox)
The illogical and sinister arbitrariness of the law is demonstrated by the manner in which it proclaims the act of prostitution to be legal, and yet in the same breath it takes away every legal option for pursuing this work in a safe and secure manner.
The constitutional challenge is designed to attack the law's complicity in, or its contribution to, the daily risk of violence faced by sex trade workers. The concerns being raised involve an assessment of the legitimacy and rationality of state policy, not a resolution of the divergent moral perspectives regarding sex for sale.
People may strongly disagree about the morality of prostitution, but in a secular and pluralistic society it is impossible to construct a moral justification for any legal regime where physical security and the sanctity of life do not clearly trump sexual morality and the so-called "social nuisance" evil of prostitution.
Ironically, the week after our challenge was launched, an incident in Islamabad, Pakistan, graphically demonstrated the robust and divergent perspectives on the prostitution issue. Female seminary students kidnapped a woman, Aunty Shamim, who was accused of running a brothel. The police refused to intervene. Aunty Shamim was released two days later after a hardline cleric convinced her to repent in public.
A religion-based moral order will tend to generate the strongest moral aversion to the sex trade, but even in Islamabad you will find sex for sale. The inevitability and ubiquity of prostitution is what has earned it the title of the world's oldest profession.
Knowing that there has never existed a legal or political regime that can eradicate prostitution, it is time we stopped the futile quest for a prostitute-free society and started to construct a legal regime that respects the safety and security of anyone who freely chooses to earn a living through the sale of sexual services.
Photo By Susan King
Setting up sex workers
Section 213(1)(c) of the Criminal Code prohibits the act of communicating for the purpose of prostitution - so it's actually illegal to do any rudimentary screening of customers before entering their cars.
Section 212(1)(j) prohibits living off the avails - but despite this provision's association with the insidious act of pimping, it's actually illegal for anyone to work for a prostitute even when legitimately required for the personal security of the sex trade worker.
Section 210 prohibits the act of keeping a bawdy house - so despite the obvious dangers of the street trade, the law makes it illegal to move into a safer indoor setting.
Alan Young is a professor of law at Osgoode Hall. His column appears every other firstname.lastname@example.org