IT’S a standard of crime fiction – the deranged killer who tortures and kills street walkers and rent boys. Most readers would have the luxury of a detached consideration: was the story well-written; did we find it compelling?
But for the last seven years, three Canadian women with a long history of work in prostitution have been confronting the courts there with the dangers of the real thing – and the way the law makes their lives even more dangerous. They have been litigating for changes in three laws that, they claim, make it illegal for adult sex workers to take even basic steps to protect themselves from the violence, rape and sometimes murder associated with the job.
They say these provisions are unconstitutional because they infringe their right to safety and security. Prostitution is not illegal in Canada but parliament has criminalised a number of related activities, some couched in archaic phrases like the prohibition on ‘common bawdy houses’ or the offence of ‘living off the avails of prostitution’.
What this means in practice, they say, is that it’s now illegal for them to work from home for example – it would be declared ‘a common bawdy house’, closed down and the owners or tenants jailed. Though their own experience and the evidence of expert researchers is that ‘indoor’ work is much safer the law drives them to work on the street, a far more dangerous environment and more likely to result in violence or murder.
So far they’ve won two major judgments, both of them extraordinary because of how they deal with a subject usually approached from a moral, even moralistic, position – the point of view of the establishment. In these decisions however the courts responded sensitively to the actual situation of danger in which sex workers find themselves, and concluded that their rights to safety were unconstitutionally infringed.
Take for example the language of the dissenting judges in the second, appeal, decision. The court ruled unanimously that two of the challenged laws were unconstitutional, but split over the third, the ‘communicating provision’. This law makes it an offence to ‘communicate’ with another person, in a public place, for the purpose of prostitution.
Two judges felt their majority colleagues hadn’t gone far enough. The dissenters said the cumulative effect of the three laws was to force sex workers from relatively safe indoor locations into the dangers of the streets. Once there, the communication provision meant they weren’t able to talk to prospective clients to assess their ‘potential drunkenness, weirdness or violence’.
‘The 1985 addition of the communicating provision to the existing bawdy-house and living on the avails provisions created an almost perfect storm of danger for prostitutes,’ said the two dissenting appeal judges. ‘Prostitutes were first driven to the streets, and then denied the one defence, communication, that allowed them to evaluate prospective clients in real time.’
‘The world in which street prostitutes actually operate is a world of dark streets and barren, isolated, silent places. It is a dangerous world, with always the risk of violence and even death.’
They said the majority correctly decided that the two provisions preventing safety measures by ‘indoor prostitutes’ were unconstitutional. However, the majority should have come to the same conclusion in relation to the communication provision given the ‘devastating impact it had on the right to life and security of the most vulnerable affected group – street prostitutes.’
Not surprisingly the case headed to Canada’s highest court where it was argued just a few weeks ago.
Thanks to that country’s enlightened policies on broadcasting and public access it is possible to watch and listen to the entire supreme court hearing on the Internet. So, from my desk in the Free State, I’ve been watching legendary counsel Professor Alan Young, who appeared for the three women, telling the justices that parliament effectively categorised sex work as ‘legal but undesirable … like smoking’.
He said the law created a ‘violence-inducing framework’. It was true that psychopaths were the actual perpetrators of violence against sex workers, but parliament was also complicit because it did not allow such workers access to very basic measures of security. No civilised society should force people to choose between obeying the law and protecting themselves, he said.
The judges are now writing their decision and the outcome is unpredictable. Their questions however indicated that the judgment will, at the very least, seriously take into account the vulnerability of sex workers and their precarious status as social outsiders.
Attorney General of Canada v Bedford: http://canlii.ca/t/fqqwq
Bedford v Attorney General of Canada: http://canlii.ca/t/2cr62