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Prostitution in CanadaStephanie Sturdy |
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CONTENTS THE LEGAL ASPECTS OF PROSTITUTION THE DEFINITION OF PROSTITUTION PROSTITUTION LAWS AS THEY STAND |
INTRODUCTIONThis essay focuses mainly on the trade of street prostitution and on women, the people who practice it most often (women prostitutes outnumber men in a ratio of four to one). Despite the fact that prostitution is not illegal in Canada, activities closely related to the profession are penalized (i.e. procuring, keeping a bawdy-house, communicating). This results in the infamous "Catch 22" situation, where prostitutes face a good news-bad news scenario: prostitution is legal, but it is illegal to practice it. The government's and the legal system's inability to clearly define where prostitution can take place facilitates the further victimization of women by forcing them to practice their chosen profession on the street under less than optimal conditions. Moreover society as a whole is partly responsible for young women choosing prostitution as a career. Also, the incompetence of the law forces the police to be in a position were they have to make the laws. In the words of an authority on the subject, John Lowman, in Canada "the legality of prostitution is rhetorical at best." THE LEGAL ASPECTS OF PROSTITUTIONA. THE DEFINITION OF PROSTITUTIONArriving at a workable definition of what is prostitution is very difficult, since not even the government can agree on what exactly constitutes the offence. Prostitution is the exchange of sexual favours for money or other material goods, devoid of any emotional involvement. Although prostitution has never been illegal in Canada, many of the peripheral activities intimately related with it are so penalized. Communicating for the purposes of prostitution, soliciting, keeping a common bawdy house, procuring, and living off the avails of prostitution are some examples of the type of activities that are criminalized according to the legal system. B. PROSTITUTION LAWS AS THEY STANDProcuringThe purpose of the "procuring" and "living on the avails" provisions in the Criminal Code is to hinder third parties from making a profit from the prostitution of others. This includes directing potential customers to the services of a prostitute, and living fully or partly off the earnings of a prostitute. In most large cities, people in the service industry such as taxi drivers, bell-hops, bartenders, and hotel clerks tend to supplement their incomes by procuring (Gomme, 1993: 301). Pimps are people who actively seek out another person to prostitute for them. In exchange for this, pimps are supposed to perform certain activities for their prostitute: administer protection from the police, customers and other prostitutes; provide a residence; and recruit customers for "their women" (Gomme, 1993: 301). Although not a great number of women enter the profession as a result of manipulation by pimps, several alleged to have been "managed" by a pimp at one point in their careers. According to John Lowman very few prostitutes who have been pimped have anything positive to say about the experience; other research, however, shows that some women develop meaningful relationships with these men, (procurers are almost always men, except in the case of madams; and hustlers or male prostitutes are rarely pimped). In some cases the person who acts as a pimp is the prostitute's significant other (i.e. husband, boyfriend, etc). This relationship is often characterized by the moral support, comfort and assurance that is provided by the man. Laws regarding procurers are just as ambiguous as are laws regarding prostitution in general. According to what the law states, any person "who lives wholly or partly on the avails of prostitution" is guilty of a summary conviction offence, which entails a maximum penalty of six months in jail and/or a fine not exceeding $1000. Problems arise as a result of the discrepancies between the way prostitutes and the law define pimps. For a prostitute a pimp is someone who "turns out" another person to work for him. This is another area where prostitutes are in conflict with the law; these women are not allowed to have a significant other. A prostitute from Toronto voices her frustration; "according to this law I'm not allowed to have a boyfriend because any man who is habitually in my company is defined as a pimp. We want the procuring laws removed. We [prostitutes] demand the right to have lovers" (Good Girls Bad Girls, 1987: 102; Lowman, 1992: 55-6). Noteworthy is that not many people are prosecuted under this offence. The solicitation law was enacted in 1972, and it was designed to deal with all the aspects of prostitution that the Vagrancy C provision ignored. Section 195.1 read:
This section of the Criminal Code sought to punish an overt act, solicitation, but what was meant by solicitation was not described. The solicitation law attempted to address the issue of public nuisance that prostitution causes. Preceding the solicitation law, the extent of what the police had to prove when prosecuting an individual, was that a prostitute had offered her sexual services in a public place. After the controversial 1978 Hutt decision, however, to make a conviction the police had to prove that the prostitute had been "pressing and persistent" when offering her services to a potential client (CIR, 1994: 2-3; Lowman, 1992: 65). The flagrant failure of this law was due predominantly to the encumbrance that it caused law enforcing agents. For this reason, some will argue that prostitution spread unchecked across Canadian cities because if the prostitute circumvented the necessary "persistence", she could ply her trade uninterrupted. Positive aspects of the soliciting law are, a) it expanded police power by permitting the prosecution of male prostitutes and transvestites, b) police could no-longer make the arrest of a recognized street prostitute merely because she did not appear to be busy (Lowman, 1992: 65). The Communicating law was established in December 1985. Its principal purpose was to reduce the visibility of prostitution, thus reducing the nuisance aspect of the trade. Section 213 of the Criminal Code now read:
An important aspect of the communicating law is that for the first time in the history of prostitution laws in Canada, the Criminal Code included customers "under the purview of the law". Thus rendering johns vulnerable to prosecution. Even though the latter has been an improvement in Canadian legislation with reference to prostitution laws, section 213 has had little if any, positive effect on the trade or the people who practiced it. Amid the negative aspects that have surfaced after the law came into being is a dramatic increase in the murder rate among prostitutes throughout the province of British Columbia. Furthermore, this law still does not indicate where prostitution can take place legally (Lowman, 1997: 8; Duchesne, 1997:2). The laws regarding common bawdy-houses are aimed at those people who own or manage such places. Since keeping a common bawdy-house is an indictable offence, the maximum penalty for persons convicted on this count is two years in jail. Penalties for other people involved, (i.e. customers and prostitutes) are not as severe; the other participants would be guilty of summary offences. Section a 197 provides a definition of the terms "place, " "prostitute," and "keeper" (Lowman, 1992: 64). Since World War II, the places which have been involved in common bawdy-house offences are the residences of the prostitutes, "trick pads" (a location used exclusively for the servicing of a customer), and, most frequently, hotel rooms (Lowman, 1995: 338). The police are not required to prove that the place is used frequently, the simple "general reputation" is enough to demonstrate that acts of prostitution occur regularly. Places such as massage parlours escape being prosecuted under the bawdy-house laws because the customer pays for a massage; anything that happens after that is agreed upon between two consenting adults. Any payment that the masseuse receives is, theoretically, without the knowledge of the proprietor and/or manager. Despite their sly modus operandi, several massage parlours have been prosecuted to the full extent of the law according to the this section of the Code (Lowman, 1992: 80). The "Catch 22" SituationWhen it comes to street prostitution the law is not only ambiguous, but it is also overtly unfair. In Canada it is legal for a woman to sell her body, but it is not legal for her to attempt to find any customers. Also prostitution is the only criminal offence involving two consenting adults, where in most cases, only the female is arrested ("Anywhere But Here", 1992). The definition of "place" in the bawdy-house laws, for instance, is so broad that it is almost impossible to conceive a location where a prostitute could ply her trade on a regular basis, without violating the law. As Russell indicates, this section of the Code includes virtually any place:
If the government wishes to rid society of the nuisance created by prostitution, it will have to either, define a place where prostitutes and their clients can meet and carry out their agreement, or make prostitution illegal. RECENT AMENDMENTS IN CANADIAN LAWS WITH RELATIONSHIP TO PROSTITUTIONCanadian laws regarding prostitution were adopted from the British Criminal Code in it the street trade was regarded as a vagrancy offence. This meant that people could be arrested on the on the basis of their status (i.e. being on the street). Section 175(1)(c) described a person vagrant when:
The "Vag C" did serve its purpose of deterring street nuisance and solicitation; unfortunately it had serious shortcomings. According to civil libertarians this provision of the Code judged a person's status, rather than her/his behaviour. Feminists were opposed to the vagrancy laws because they were doubly sexist. First, under the law only women could be charged with prostitution. Second, there were no laws which addressed the behaviour of the customers, (which were almost always men); thus they remained immune to prosecution (CIR, 1994: 2; Lowman, 1992: 65; Lowman, 1995: 339). In 15 July 1972 the soliciting law was enacted, marking the end of the "Vag C". With the introduction of section 195.1, it became illegal to solicit another person for the purposes of prostitution. The functioning life of this law was cut short by the cornerstone decision of the Supreme Court of Canada in R. v. Hutt; which deemed that soliciting had to be "pressing and persistent" for the police to be able to make an arrest. The new requirement rendered the law virtually unenforceable. Two of the reasons attributed to the "failure" of the soliciting law are that prostitutes are rarely persistent when they approach potential customers, and that police in Vancouver actually gave up enforcing this section of the Code. Because of how this section of the Code was worded, police in were put in a position where they had to decide what part of it to enforce. For instance, in Vancouver, the escort services were not disturbed because had they been prosecuted and consequently closed down, street prostitution would increase. The increase of this part of the trade would create more problems for the police from the citizen's groups. As a direct result of police and resident lobby groups pressure on the government, Bill C-49 was passed and on 28 December 1985 the communicating law came into effect. Under section 213 of the Criminal Code it is not permitted to stop a motor vehicle, or impede free flow of pedestrians to communicate with any person in any manner for the purposes of prostitution. The principal goal of section 213 was to reduce the visibility of street prostitution. Critics of this law will say that it is absurd and unrealistic for the government to attempt to "clean up" the streets when it does not offer a definition of a location where prostitutes can practice their trade legally. The evident failure of the law is due to the "one-sided" approach it took; the communication law sided unilaterally with the residents without addressing prostitute's concerns. When the government enacted section 213 it went against the very thing that both the Fraser and the Badgley Committees agreed upon: to solve the problem of nuisance to the public, the government must mediate between the two groups (residents and prostitutes) so that both can achieve what they desire and need (Lowman, 1989: 208; Lowman, 1995: 353-4). The communicating law has been the last amendment made to the laws on adult prostitution. It is clear that unless the government addresses the problem of street prostitution taking into account the concerns of the prostitutes themselves, no law that is enacted will have any deterring effect on the trade. Social problems cannot be solved solely by laws. One aspect of the issue of prostitution that is seldom touched upon is the johns. Prostitution exists mainly because there have always been men who are willing to pay for sex; and yet when the problem of the trade is addressed, rarely are the actions of the customers taken into account. It was only until the communicating law that the government included and penalized the behaviour of the clients in the Criminal Code. Ninety-three years after the first Criminal Code, this is only counting from recorded history, the Canadian government decides that the actions of the very cause of the problem should be criminalized. Although section 213 has been a legal disaster, it can be argued that with the introduction of a law that criminalized the behaviour of the customers, some progress has been made. However it is still very rare that men are arrested with charges relating to prostitution. MOST COMMON CAUSES OF WOMEN ENTERING PROSTITUTION Most street prostitutes have common backgrounds; they are women and men who come from the lower socio-economic strata, and who are immensely dissatisfied with some aspects of their home life (Lowman, 1992: 54). ECONOMIC NECESSITYResearch on prostitution shows some basic patterns in the family backgrounds of people who have entered the trade. The "typical" prostitute leaves home at a very early age (67 percent of prostitutes enter the profession under the age of eighteen). All the factors influencing this decision involve great dissatisfaction derived from the character of interaction with members of the family, whether it is guardians or parents. Relationships between guardians and would-be prostitutes are often characterized by physical violence, and emotional and sexual abuse. For male prostitutes all the above mentioned reasons apply, and in many cases there is the additional conflict that arises as a result of the boys' sexual preferences. On some occasions, prior to their departure, the youth has been living in a foster or group home. The long years of abuse and neglect suffered at home serve to erode the young person's self-esteem, rendering her vulnerable to making self-destructive decisions. Initially, when a girl leaves home she does not intend to become a prostitute. Due to a lack of a suitable trade or marketable skills that characterizes this age group, prostitution becomes the only viable avenue to support herself. Since the minimum required age for attaining social assistance is nineteen, this option is not available to young runaways. Furthering the young adult's predicament is her search for autonomy. Seeking autonomy is one of the leading reasons that drives adolescents away from home, therefore, requesting help from the state is not an option they will consider. The theory that the majority of people involved in prostitution begin due to dire economic need has been discredited. A study conducted shows that few women (8 percent) entered the profession because of their economic situation; for the most part (57 percent) it was a desire for luxuries and wealth that lured them in (Siegel, 1994: 405). Early experiences with sexuality teaches young girls that their bodies are objects with inherent value, which they can use to attain money, success or power (Siegel, 1994: 405). Contributing to the attraction that the life poses on women, is that most types of prostitutes are remunerated more than any other conventional employment. In addition to this, women with limited education and skills cannot expect to have a well-paying job. EXPLOITATIONAlthough coercion is not a very common method of recruitment, it is often used by pimps or madams as a way to keep the prostitutes working on the streets. According to Lautt, who has conducted extensive research on the prairies, exploitation is most frequent in the recruitment of girls between the ages of 12 to 16. Pimps scout for young, naive-looking girls around bus depots, airports, train stations and other places of access to the city. The pimp will follow an appropriate target until dusk, try to befriend the girl, he may perhaps offer her a place to stay. Soon the young woman becomes emotionally and economically dependent on her new "friend"; at this point the teen is asked to prostitute herself. Should she refuse, threats of violence or violence itself will be employed by the pimp (Gomme, 1993: 291). A few women enter the profession because they are emotionally attached to someone, a lover or a friend, who coerces them to take up the trade. In the report based on the findings of the Fraser Committee, it was stated that in Vancouver between 50 to 60 percent of prostitutes claimed they were introduced to the "the life" by other people (Gomme, 1993: 294). Close friends who are sexually active or professional prostitutes will influence younger girls to enter "the life". Since sexually active young women tend to search the company of peers with the same moral views towards sex, it is not overly difficult to be convinced. Moreover those who are already accepting payment for sex convince novices to "redefine the meaning of their sexual activities" (Gomme, 1993: 293). The process of becoming a professional prostitute is completed when the criteria a woman utilizes to screen her sexual partners is based entirely on monetary gain. After a woman has spent several months as a prostitute, leaving the life behind will not be easy. Finding a job after several months of being a prostitute is no easy task for several reasons: while on the streets women do not gain any marketable skills, the education they had before entering the trade is usually insufficient (no more than eighth grade in some cases) and explaining several months of unemployment without any references could be awkward. This lack of job training and of opportunities for alternate employment is what keeps women who would like to retire, on the streets. It is very interesting that in all the attempts that have been made to evaluate and analyze prostitution not once has the government taken into account the point of view of sex trade workers. For instance, neither the Fraser nor the Badgley committee included among their panel a single sex trade representative. If the government desires to put an end to the nuisance aspect of prostitution as opposed to merely trying to control it, it should consider addressing some of the fundamental problems concerning the people who practice the profession. For all involved, it would be far more advantageous if the government stopped trying to legislate morality and listened to the issues of the people who practice the trade as well as the concerns of the citizens, and try to find a mid point between their differences. Prostitution is one of the oldest professions in history; it is also unlikely that it will be disappearing any time soon. The major cause for the existence of the trade is that men have been socialized to view sex as a commodity that they can buy, and women as objects whose sole purpose is to provide this sexual gratification. So long as there are men who are willing to pay for sex there will be women willing to provide it. Anywhere But Here: Prostitution and the Law, (Video) Simon Fraser University, 1992. Bell, Laurie. Good Girls Bad Girls: Feminists and Sex Trade Workers Face to Face, Toronto: OPIRG, 1987. Bullough, Vern and Bonnie Bullough, Women and Prostitution: A Social History, Prometheus Books, 1987. Canada. Department of Justice Canada, "Street Prostitution-Assessing the Impact of the Law," 1989. Canada. Library of Parliament, " Current Issue Review -Prostitution," February, 1982 (Revised October, 1994). Davies, Nanette. Control of Deviance: a Critical Perspective, New York: McGraw-Hill Publishing Company, 1990. Gomme, Ian. The Shadow Line: Deviance and Crime in Canada "Prostitution," Toronto: Harcourt Brace Javanovich, 1993. Lowman, John. "Prostitution in Canada" in Margaret Jackson and Curt Griffiths, Canadian Criminology: Perspectives on Crime and Criminality, Toronto: Harcourt Brace & Company Canada, 1995, pp 333-359. Lowman, John. "Sterling Prize Winner Challenges Prostitution Law" in Anne Sharp (ed.) Simon Fraser Alumni Journal, Surrey: SFU Alumni Relations Office, 1997. Lowman, John. "Street Prostitution" in Vincent Sacco, Deviance: Conformity and Control in Canadian Society, Prentice-Hall, 1992, pp 49-83. Province of British Columbia. "Community Consultation on Prostitution in British Columbia," Overview of Results, March, 1996. Siegel, Larry. Criminology: Theories, patterns, and typologies, St. Paul MN: West Publishing Co, 1992. Statistics Canada, "Street Prostitution in Canada," February, 1997. |
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