An appeal court decision expected early next year could decriminalize prostitution in Canada, putting us on par with the Netherlands. Experts there say it’s the best way to protect women, but officials in Sweden, where they have a zero-tolerance policy, say it would be a big mistake. Claire Tremblay looks at the two approaches to see what Canada can learn
Det.-Insp. Kajsa Wahlberg, a middle-aged woman with short blond hair, exudes an air of policing officialdom. As Sweden’s National Rapporteur on Human Trafficking, the seasoned police inspector has witnessed human trafficking at its worst. From lone pimps exploiting teen girls and seducing them with promises of love, to complex crime syndicates that drag drugged women en masse into anonymous hotel rooms across Europe, Wahlberg has seen it all.
And as the Ontario Court of Appeal considers a case that could see prostitution decriminalized in this country, she has a warning for Canada: Do so at your own peril.
Expect prostitution to skyrocket, she says. Expect drugs, crime and human trafficking to soar.
“If Canada adopts a model of decriminalizing sex buyers, prostitution will explode. It will become like the Netherlands,” says Wahlberg. “The sex buyers will require more and different types of weirdo sex and new varieties and services. It would be a big mistake.”
The court case that so alarms Wahlberg is Bedford v. Canada, the September 2010 Ontario Court of Justice case where sex workers Terri-Jean Bedford, Amy Leibovitch and Valerie Scott took the federal government to court over Canada’s sex laws – and won.
In June, the government appealed the highly controversial decision, arguing that Canada’s prostitution laws should stand. The appeal court is expected to announce its decision early next year: If it sides with Bedford, prostitution in Canada will be decriminalized, putting us on par with the Dutch. (Until the decision is announced, Canada’s current sex laws were allowed to stand.)
On trial in Bedford v. Canada were three sections of the Criminal Code that make it a crime to communicate for the purposes of prostitution, to act as a pimp or to operate a common bawdy house.
The communication law, the lawyers in Bedford argued, puts sex workers at risk and breaches the “life, liberty and security” guarantee under Section 7 of the Canadian Charter of Rights and Freedoms because it forces prostitutes to communicate where they can’t be seen or heard. Working in the shadows puts them in danger, the lawyers said – the sort of danger serial killer Robert Pickton exploited when he killed 49 women in British Columbia.
Justice Susan Himel of the Ontario Court of Justice agreed. In handing down her decision, Himel found Canada’s prostitution laws “force prostitutes to choose between their liberty interest and their right to security of the person” as guaranteed under the Charter. Himel struck down the offending sections of the Criminal Code.
The government appealed, arguing the real issue was not whether Canada’s sex laws put women in harm’s way, but under what circumstances the government is constitutionally obliged to offer protection. The government, the Crown stated, has no positive obligation to create laws that protect individuals who voluntarily engage in dangerous acts. Prostitution is the risk, not the prostitution laws themselves, the Crown said. As such, the government has no constitutional obligation to create laws that protect sex workers from self-created harm.
Guiding Himel’s decision was how to prevent violence against sex workers. Himel decided decriminalization – making it less dangerous for sex workers to ply their trade – was the answer. For the government, sex work is dangerous, period, and the best way to end the danger is to discourage it, that is, criminalize it.
So which method works? The experiences of the Netherlands and Sweden may provide some clues. These nations adopted diametrically opposed prostitution laws at the same time, with vastly different results.
In 2000, the Netherlands decriminalized the trade and began to enforce stringent regulation of sex work. A year earlier, the Swedes adopted zero tolerance legislation in a bid to stamp out prostitution altogether. The result has been a huge increase in the number of prostitutes in the Netherlands and a corresponding decline in Sweden.
The outcomes of the two social experiments are something “Canada can learn from,” Wahlberg says. The facts, she says, tell the story.
The last time a prostitute was murdered in Sweden was in 1989 – 21 years ago. (In Canada, which has a population roughly three times that of Sweden, 63 prostitutes were murdered from 1991 to 1994, 26 of them in British Columbia.) A little over a decade since Sweden introduced its laws, drug use and organized crime has also dropped, as has human trafficking for sexual purposes.
In the Netherlands, however, where prostitution is decriminalized, drug use, prostitution, organized crime and human trafficking continue to rise. “Lover boys,” young men who seduce young women, gang rape them, drug them and traffic them, are a phenomenon in the Netherlands. In 2008, the country’s National Centre Against Human Trafficking listed 809 registered victims of human trafficking.
The difference between Sweden and the Netherlands, Wahlberg says, is Sweden’s Sex Purchase Act of 1999, which aims to erase prostitution at its source – the sex buyer.
Under the act, in both sex work and trafficking, there is a criminal and a victim. The victim is the sex worker (usually a woman) and the criminal is the john (usually a man). “It is not reasonable,” the act stresses, “to criminalize the one that is, in most cases, the weaker part whom is exploited by others who want to satisfy their own sexual drive.”
Swedish penalties are tough. In Canada, sex buyers go to “john school” to be instructed on the evils of prostitution. If convicted of “communicating,” they are rarely jailed. In Sweden, sex buyers get up to a year in jail and steep fines. Fines are based on the buyer’s income on the day of the sex purchase. (The highest penalty was handed out to a company director with an annual salary of about $220,000, who was fined about $10,000.)
With the legislation, a cultural shift of name calling has emerged. A sex purchaser in Sweden is colloquially called a cod fish, a “torsk” – a loser, a bottom-feeder. And that is what really works, says Wahlberg, not jail or fines. Prior to the legislation, one out of 14 Swedish men bought sex. It is now closer to one in 20.
In Sweden, all johns are stigmatized – not just those who purchase sex from minors or trafficked women. Not so in the Netherlands. The Dutch make a distinction between “voluntary” prostitution, which is regulated sex work, and “involuntary” prostitution, which is criminal.
Anton van Wijk, a criminologist from Beke Bureau – a renowned Dutch think-tank of criminologists, psychologists, lawyers and sociologists specializing in the impact of public policy on crime and safety – sees “no benefit, only disadvantages” to the Swedish approach.
“I think it is best to decriminalize prostitution (and its customers) completely,” he says. “Criminalizing prostitution always establishes illegal and criminal activities.”
The Swedes, van Wijk says, criminalize “what should be a regular profession,” but adds that decriminalization “is not the answer to the problems of sex workers in terms of human trafficking. This is a criminal offence under the penal code and requires targeted action by the police and prosecutors.”
His Dutch colleague, Marie-Louise Janssen, a professor of cultural anthropology at the University of Amsterdam and a prostitution expert, says that “decriminalization is an important condition to create a working space for sex workers.”
“Abuse of sex workers cannot be combated by forcing them to work underground,” she says. “The number of sex workers (in Sweden) has not decreased, maybe the number of street workers who are most visible, but many workers have been forced to use the Internet, receive clients in their home or apartments outside the cities, or go to other countries to work.”
If, however, the elimination of sex work is the aim, Sweden’s zero tolerance approach appears to work – at least according to the official statistics.
In 1995, the Swedish government reported there were 2,500 to 3,000 prostituted women in Sweden, 650 of them on the streets. By 2008, the Nordic Gender Institute estimated there were 300 street prostitutes and 300 women and 50 men who sold sex on the Internet, a 54-per-cent decline in street walkers and a 76-per-cent overall decline in women engaged in prostitution.
Amsterdam alone has 8,000 to 11,000 prostitutes. In 2000, the Dutch Ministry of Foreign Affairs estimated the Netherlands, with a population of 16.5 million, had 20,000 to 25,000 prostitutes, more than 10 times that of Sweden. The Coalition Against Trafficking in Women International reports the sex industry in the Netherlands expanded 25 per cent in the three years following decriminalization.
But for the sex workers at the centre of the Bedford case, decriminalization is a necessary first step to stop the endemic violence sex workers experience on a daily basis. Research from Simon Fraser University shows prostituted women in Canada are 60 to 120 times more likely to be murdered than the general public. Nor would decriminalization, some sex workers argue, automatically increase human trafficking.
Amy Leibovitch, a sex worker and one of the three applicants in the Bedford case, says the current prostitution laws are “a gift to people who want to abuse us.”
The provisions that make it a crime to communicate for the purposes of prostitution mean conversations between sex worker and john take place, literally, in the shadows.
“The law targets people working on the streets,” says Leibovitch. “It puts sex workers into situations where they are fearful of the police and don’t want to be arrested. So they work in places that are less populated so they won’t be seen.”
Leibovitch criticizes both the Swedish and the Dutch models.
While the Dutch have removed criminal sanctions, they subject sex workers to a model that is “obviously profit driven by the government” she says. Sex workers are subject to steep licensing fees, taxes and regulations, which “create an environment where options for sex workers are limited.”
The Swedish model, she says, is no better than current Canadian laws. By criminalizing johns, the Swedish approach still means sex workers are forced to conduct their transactions in secret to stop their clients from being prosecuted – and this, she says, puts sex workers at risk.
“What I would say,” says Leibovitch “is that we (sex workers) don’t need protection, we need safety. It is a dangerous environment to work in Canada where both sex workers and johns are prosecuted … the Swedish laws still create that underground situation where it leads to an unsafe environment to get clients.”
(As it stands, sex work is a high risk occupation, period. In a 30-year study of 2,000 prostitutes in the U.S. published in 2004, the top causes of death for prostitutes were homicide, suicide, drug-and alcohol-related problems, HIV infection and accidents.)
So what is the answer for Canada? Joyce Arthur, co-founder of Canadian organization First Advocates (Feminists Advocating for Rights and Equality for Sex Workers) says Canada needs to look further – to New Zealand’s Prostitution Reform Act.
“In New Zealand, sex workers were involved in the whole process, including the municipal regulations,” says Arthur. “And a government report which came out five years after the law was passed shows that it is working.”
The act implemented in 2003 takes the Dutch model one step further. While the Dutch closely monitor sex workers through health checks, registration and taxes, New Zealand takes a laissez-faire approach. Sex workers can ply their trade more or less freely – at home, in brothels or on the street – subject to minimal regulation at the municipal government level. A New Zealand government study in May 2008 stated only about one per cent of sex workers were under the legal age of 18 and only four per cent of women stated they had been pressured into prostitution. One key advantage New Zealand has over the Netherlands, the report admitted, was that the country’s isolation made it relatively free of the high levels of human trafficking experienced in Europe.
Christine Bruckert, associate professor of criminology at the University of Ottawa, has researched prostitution since the 1990s and interviewed hundreds of sex workers in the process. She agrees with Arthur’s assessment: New Zealand’s approach is the way to go.
A former sex worker herself, Bruckert is also vice-chair of POWER, a prostitutes’ rights group in Ottawa that she describes as “pro sex workers, not pro sex work, per se.”
“Sex workers in New Zealand have safety measures and health and occupational protections” that guard against exploitation of sex workers,” Bruckert says.
“We know there is exploitation. That is what we are concerned with – finding strategies for sex workers who want to leave and strategies to ensure those who want to stay are protected.”
Bedford “is not a panacea,” Bruckert says. “It will not be amazing. Sex workers will still experience stigma and there will still be sex workers who are exploited.”
But what it will mean, she says, is that sex work will be out of the shadows.
“And we all know that bad things happen in the shadows.”
Claire Tremblay is a lawyer and freelance writer with an interest in human trafficking who lives in Ottawa.