Prostitution

Prostitution is generally defined as the practice of providing sexual services for money, but because it requires a buyer and a seller it can more appropriately be defined as the practice of exchanging money for sexual services. Heterosexual prostitution (men as buyers and women as sellers) is most common; homosexual prostitution between men exists on a smaller scale. Lesbian prostitution between women may exist but there is little evidence of it, or of heterosexual prostitution with women as buyers, in the research literature.

Organization

Throughout the 1800s, prostitution in Canada was organized primarily around brothels. The houses were grouped together, often sharing their neighbourhood with taverns in the poorer parts of town. In Ottawa and Québec City the brothel districts were in the "lower towns"; in Saint John, Halifax, and in Kingston, ON, they were near the docks; Montréal and Toronto each had a district or two. The brothels in Saint John and Halifax provided gambling in addition to sex and alcohol, and were known to be some of the most financially successful houses in the first half of the 19th century.

With the development of the transcontinental railways, there was a mass migration westward at the turn of the century. Unlike the earlier settlers of the West who had been mainly farm families, these migrants were mostly single men, either bachelors or husbands who had temporarily left their wives and families at home. This mass migration of single men created an environment in which prostitution flourished. Brothels were located close to the railway stations. Unless they came to the attention of social or moral reformers, little was done to close them. The authorities were inclined to feel that prostitution had to be tolerated because it could not be eradicated. On occasions when the North-West Mounted Police did take action, it was usually for reasons other than a mere violation of the laws relating to prostitution. Such reasons included complaints that prostitution was having a damaging effect on the native population or on the railway construction projects, or evidence that those associated with the brothels were involved in other criminal activities.

Since the 1890s, legal repression made it more difficult to operate brothels, and street-based prostitution became more common. Levels of prostitution increased during the FIRST WORLD WAR when there was little employment for women, and decreased during the SECOND WORLD WAR, perhaps as a result of the greater economic opportunities for women in war-related industries. Immediately following the war, the level of prostitution continued to fall and the off-street trade became much more decentralized.

Brothels (sometimes organized as massage parlours) and escort services - which take place at the customer's hotel or residence (out-call) or at the escort's residence (in-call) - still exist today, but street-based prostitution is the most visible form and receives the most attention. Yet in Canada as elsewhere, street-based prostitution represents only a small proportion of the sex industry (recent Canadian estimates range from 5% to 20%).

Legislation and Enforcement
Prostitution itself has never been a crime in Canada but various activities relating to the exchange have always been prohibited. Currently these include: 1) procuring or living on the avails of prostitution; 2) owning, operating, or occupying a bawdy house; 3) all forms of public communication for the purpose of prostitution; 4) knowingly transporting another to a bawdy house; and 5) purchasing sexual services from someone less than 18 years of age. Statutes prohibiting some of these activities have been in place in Canada for over 250 years. One of the earliest--contained in the Nova Scotia Act of 1759 authorizing justices of the peace to commit disorderly persons, vagabonds and persons of lewd behaviour to a house of correction - was designed to make the status of being a prostitute or streetwalker an offense. In comparison to the criminalization of the NONMEDICAL USE OF DRUGS which occurred in 1908, the criminalization of prostitution has a relatively long and varied history. Social and legal responses to it fall into five clearly distinct periods: pre-confederation (1759-1867), Victorian (1867-circa 1920), post-Victorian (1920-1970), rise of sex work advocacy (circa 1970-1990), and contemporary (circa 1990-present).

Pre-confederation (1759 - 1867)
Legislation controlling prostitution prior to 1867 was in the form of vagrancy laws designed to remove indigents and other undesirables from the streets. The earliest prohibitions made the status of being a prostitute or streetwalker an offense. Disruptive or annoying behaviour was not a prerequisite to detention and once the status was established, conviction would follow more or less automatically. Both prostitutes and those who ran or frequented common bawdy houses were dubbed vagrants and were liable to prosecution under the law. From all accounts, enforcement during this period was sporadic and capricious. Prostitution was likely to be tolerated in port cities such as Halifax and on the western frontier but repressed when it was seen as a direct threat to respectable members of the population. Regardless of where and when the laws were enforced, the focus of attention during this early period of Canadian history was the prosecution of women working as prostitutes.

Victorian (1867 - circa 1920)
After Confederation, more complex provisions designed to protect women and children from procurers, pimps and brothel keepers were introduced. In 1867 the new federal government enacted provisions prohibiting the defilement of women under the age of 21. In 1869 the existing vagrancy provisions were consolidated and expanded to embrace men found to be living on the avails of prostitution. The penalties were increased in 1874 and in 1886 when the bawdy-house provisions were re-enacted. When the CRIMINAL CODE was finalized in 1892, the vagrancy provisions outlawing street walking and bawdy houses were incorporated along with additional offenses directed at bawdy house operators and procurers of women "for unlawful carnal connection." Provision was also made for securing a search warrant when there was reason to suspect women or girls were being concealed or lured into prostitution. Over the next 28 years, the laws relating to procuring and living on the avails continued to be refined: definitions were enlarged and penalties strengthened. The bawdy house provisions were also refined but much less extensively.

Some argue that these changes came in response to the initiatives of members of the national TEMPERANCE and Protestant church organizations who created and maintained a climate in which the evils of white slavery were very much in the public imagination. The reformers' objectives were to abolish the "social evil" by punishing exploiters and rescuing women and children from sexual exploitation in general, and white slavery in particular. Regardless of the reason, amendments addressing these concerns are clearly reflected in the laws of this period. Unfortunately the determination to punish exploiters and rescue women and children did not carry over into practice. During the years immediately before and after the enactment of the Criminal Code, there are no entries for either defilement or procuring, or for the nuisance offence of keeping a bawdy house. Convictions for the vagrancy offenses increased only slightly and after 1895--the first year a gender breakdown became available--the entries show that more convictions were registered against women than men. Conviction rates for bawdy house offenses increased as well, but once again the convictions of women significantly outnumbered those of men. Convictions for procuring were infrequent. After 1911 when they became numerous enough to warrant reporting, the number never exceeded more than 66 convictions per year for all of Canada. These figures are insignificant compared to the fervour to abolish white slavery and the trafficking of women and children.

Post-Victorian (circa 1920 - 1970)
The social purity movement waned in the 1920s and the sex industry continued with little public comment for the next 50 years. There were no changes to the procuring and street prostitution sections and only minor changes to the bawdy house section. The latter took place in 1947 when the maximum sentence for keepers and inmates was increased to three years and a new offence added: knowingly transporting another to a bawdy house. The enforcement patterns in evidence during the Victorian era continued into this period. Women (not men) were criminalized for selling sexual services, convictions of women outnumbered those of men for the more serious bawdy house offenses, and conviction rates for procuring remained very small. Only with respect to the less serious bawdy house offenses did the convictions of men outnumber those of women.

Rise of Sex Work Advocacy (circa 1970 - 1990)
When public debate was rekindled in the late 1970s and early 1980s, it was prompted by growing concern about the increased visibility of street-based prostitution in residential neighbourhoods. The protests during this period recaptured the social nuisance concerns of the pre-confederation era. Citizens' groups--portraying prostitution as either an insidious source of neighbourhood decay or as a public nuisance in residential areas--lobbied municipal, provincial and federal politicians to enact more effective laws to control street-based prostitution. The solutions most groups advocated were simply aimed at strengthening the soliciting section of the criminal code. In contrast, civil libertarians, a variety of feminists' groups, and Prostitutes' Rights Organizations, supported much broader legal and social reform. In large part, their concerns echoed those manifested by the Victorian reformers. They called for the criminalization of those seen as exploiting or coercing prostitutes and a full array of social reforms to eradicate the objective conditions that force people into prostitution. In addition, they wanted the law changed so that women and men could work in the sex industry without being subject to criminal offence.

In 1983 a special committee on pornography and prostitution was appointed by the federal government to inquire into and report on these problems. They recommended strong criminal sanctions against street prostitution but otherwise embraced the need for broad social and legal reforms including the decriminalization of bawdy houses for up to four persons. Only the former were adopted by the Conservative government.

The prostitution legislation enacted during this period changed the wording of the Criminal Code in four areas.

First, street prostitution ceased to be a status offence. The vagrancy provision was repealed and replaced by a soliciting law in 1972 and then by a communicating offense in 1985. In the process, the legal understanding of the offensive behaviour (soliciting had to be "pressing or persistent") was expanded to include simple communicating and even "attempting to communicate" for the purpose of prostitution.

Second, the liability for engaging in prostitution was extended to men, both as prostitutes and as purchasers. A definitional amendment in 1983 provided that prostitute meant "a person of either sex engaging in prostitution" and the new communicating section clearly included customers. It stated that every person communicating for the purposes of engaging in prostitution or of obtaining the sexual services of a prostitute is liable.

Third, the protection of women under the procuring offence was extended to both men and women and persons of either sex could be charged with procuring and living on the avails of prostitution.

Fourth, customers of juvenile prostitutes and pimps who engage youths were singled out for more severe sentences in 1988.

Enforcing the new communicating section did not suppress the public debate. It generated criticism from lawyers, prostitutes, civil rights groups and feminists and was challenged in several provinces on several grounds, including its legality under the freedom of expression section of the CANADIAN CHARTER OF RIGHTS AND FREEDOMS. In 1990, however, the Supreme Court of Canada ruled [in R. v. Skinner] that the communication law violates the constitutional right to freedom of expression, but refused to strike it down because it found such a violation to be justified.

This period also heralded a change in language (from prostitution to sex work and prostitute to sex worker) as well as the rise of strong sex work advocacy groups. The Canadian Organization for the Rights of Prostitutes (CORP) began in Toronto in 1983 and the Alliance for the Safety of Prostitutes (ASP) was founded in Vancouver in the early 1980s. Both of these groups appeared before the special committee on pornography and prostitution.

Even so, contemporary enforcement practices continued to penalize women more often and more severely than men; sex workers more than customers, procurers, or pimps; and street-based prostitution more than off-street prostitution. Since levels of street-based prostitution initially plummeted and then quickly rebounded to previous and even higher levels, questions about the effectiveness of the communicating legislation remained.

Contemporary (circa 1990 - present)
Public debate continued into the 1990s and 2000s but the concerns and initiatives took on a different tone.

First, Canadian sex worker advocacy groups increased their communication with similar organizations around the world regarding a myriad of issues: quelling fears related to HIV/AIDS; developing a charter of rights for sex workers; supporting the migration of sex workers; educating their communities about sex work related issues; as well as initiating strategies for decriminalizing sex work and making sex work safer.

Second, there was a marked increase in empirically grounded research about sex work from a work perspective. In addition to highlighting the diversity in the industry, this work highlighted sex workers' vulnerability to assault; substandard and unsafe work conditions; the absence of appropriate health and adequate social services; their marginalization or exclusion from mainstream social and community institutions, and the strategies they use to maximize their own safety, security and well-being.

Third, various levels of government began revisiting the issue, however most met with little success. The Inter-governmental (Federal/Provincial/Territorial) working group - set up in 1992 to discuss options for dealing with prostitution, including the involvement of youth - provided in-principle support for social and diversion programming, but could not agree on recommendations for changes to the law (F/P/T, 1998). Nevertheless, the procuring and living on the avails sections were amended in 1997 to discourage the exploitation of youth and trafficking for the purposes of prostitution.

The Federation of Canadian Municipalities also met to discuss a similar set of issues. Following these discussions, several municipalities set up licensing for escorts and dancers (with all its attendant problems), while others began utilizing municipal bylaws such as loitering and jaywalking to control street-based sex workers.

In spite of these initiatives, or perhaps because of them, violence against sex workers increased dramatically in the 1990s, especially against street-based workers. This went on for several years until media attention on the large number of women from Downtown Eastside Vancouver who were reported missing or murdered spawned initiatives to more adequately assess the situation. Key among these initiatives was the subcommittee struck (in February 2003) by The Standing Committee on Justice and Human Rights to review the solicitation laws in order to improve the safety of sex workers and communities overall, and to recommend changes that would reduce the exploitation of and violence against sex workers.

In response to this initiative, the Canadian HIV/AIDS Legal Network held a two-day consultation with researchers, activists, sex workers and their advocacy groups to develop recommendations regarding sex work, Canadian Criminal law, and HIV/AIDS.

In another key initiative, Pivot, a Vancouver advocacy group for marginalized populations, including sex workers, released a report charging that the harms experienced by sex workers make the laws surrounding the criminalization of sex work unconstitutional. The report recommended the repeal of these laws to improve the safety of sex workers.

This context created opportunities for maximising safety, security and the well-being of sex workers including two new charter challenges. The BC challenge, spear-headed by the Downtown Eastside Sex Workers United Against Violence with the support of Pivot, alleged that several sections of the Criminal Code infringe the equality, liberty, security and expression rights of sex workers. It was initially dismissed in 2008 for lack of standing, since no member of the group was currently charged with a federal prostitution-related offense. In the fall of 2010 the BC Court of Appeal granted the group public interest standing and ruled that the constitutional challenge could proceed.

The Ontario challenge - arguing that sections of the Criminal Code prevent prostitutes from operating in a safe and secure environment--was upheld. In 2010, Superior Court Judge Himel released her report. In it she concurred with the three applicants that laws that prevent keeping a common bawdy-house, living on the avails of prostitution, and communicating for the purpose of prostitution violate individual Charter rights to freedom of expression and security of the person, and cannot be saved by the reasonable limits clause. Based on the evidence before her, she argued that the Criminal Code provisions are endangering sex workers lives, stating: "these laws, individually and together, force prostitutes to choose between their liberty interest and their right to security of the person" (Bedford v. Canada). The decision was immediately appealed and heard in 2011. The judgment on the appeal is not yet available nor will it be resolved until it and the BC challenge reach the Supreme Court of Canada.

The latest data available from Crime Statistics in Canada indicates a decrease in the total number of reported prostitution offences from 10 434 in 1990 to 3 093 in 2007. This represents a drop of 70%. Yet, the pattern has not changed: the vast majority of these offences are for street-based prostitution (well over 80% in all but one year) and most of the enforcement, especially with respect to the bawdy-house section, focuses on the sex workers and not their clients.

The Participants
Most prostitution studies focus on the women who work the street, ignoring men who do sex work, men who purchase their services, pimps and the off-street sex industry. Yet field studies show that women represent only a very small proportion of the individuals involved (conservative estimates based on the ratio of female to male sex workers and the average number of clients served each week indicate that less than 5% of those involved in communicating for the purpose of prostitution are women). Police and court-room statistics as well as clinical and social agency samples suggest that most street-based sex workers are young, single, female, addicted, undereducated, from backgrounds with a history of poverty and abuse, and controlled by pimps. These impressions are only partially corroborated by the field studies conducted for the special committee on pornography and prostitution. Most are female and most--regardless of gender--are young (the average age varied from 22 to 25) and began their careers between the ages of 16 and 20. Most are single but between 30% and 70% of the women have children and are supporting them financially (depending upon the region).

The data regarding drug use vary substantially by region and gender. It is highest in the Atlantic Provinces, lowest in Québec, and appears to be a problem for the men more than the women. Levels of educational attainment seem low and poverty and abuse levels appear high, but they have yet to be adequately compared with the rates in the general population.

Findings from all the field studies clearly indicate that many women work for themselves: 62% in Vancouver, 50% in Toronto, and 69% in Montréal claimed that they worked for themselves. The presence and influence of pimps was more extensive in the Maritimes and on the Prairies. Although a recent study indicates that Maritime women are more likely to report that they work for themselves, contemporary sex work studies on the whole do not undermine the diversity reflected in these demographic patterns.

There is general agreement that prostitution is a hazardous business. Those involved in the selling are at risk - the women more so than the men - from physical assault, sexual assault, theft and sexually transmitted diseases. There is little consensus, however, as to why they are at risk. Some argue that it is inherent in the job itself; others insist the danger is inherent in its illegality; still others argue that it is dangerous simply because women are at risk in our society.

Research on child and adolescent prostitution is limited but public concern over the number of youth involved in prostitution is growing. There is a general consensus that it represents a serious problem but some dispute the numbers of youth involved. Unofficial estimates suggest that a significant number of the prostitutes who work the streets and other public places are juveniles. Police statistics indicate otherwise: fewer than 5% of those charged with prostitution activities are youth, and of those over 80% are young women.

These findings do not challenge the integrity of the more traditional databases. They simply indicate that the traditional data must be combined with field samples in order to provide a more representative portrait of the situation. The lack of information on customers, pimps and the industry itself underscores the need for more studies on these topics.

Legal Policy Options
Strategies to regulate prostitution and its attendant problems fall under four basic systems of control: criminalization, abolitionism, legalization, or decriminalization.

Abolitionism, legalization and decriminalization are different strategies for making various combinations of adult sex work activities legal.

Criminalization
Criminalization, or prohibition as it was called in the 19th century, uses criminal law to control prostitution and related activities. Victorian prohibitionists argued that prostitution should be eradicated, and wanted to use criminal law to root out all forms of prostitution activities. Today, most advocates of the criminalization approach are simply interested in strengthening criminal law with regard to street activities and youth prostitution.

Abolitionism
Abolitionism frees prostitutes from criminal sanction but maintains specific laws criminalizing those seen as exploiting or coercing them. Prostitutes are viewed as victims rather than criminals. The goal is to protect them while working toward the final abolition of prostitution by punishing the exploiters and reintegrating prostitutes back into "legitimate" society. This is reminiscent of the approach advocated, but not practised, by Victorian reformers. A form of abolitionism--criminalizing the purchase but not the sale of sexual services, is practised in several Nordic countries. It is often referred to as the Swedish Model since it was first introduced in Sweden in 1999.

Legalization
Under legalization, sometimes known as regulation, prostitutes and prostitution activities are regulated while using the criminal law. Practices may include the licensing of prostitutes, compulsory medical examinations, zoning (confinement to certain areas) and the registration of bawdy houses through the criminal justice system. Early proponents of regulation argued that prostitution resulted from the different sexual needs of men and women. They claimed that prostitution should be recognized as a necessary social evil and regulated to contain its worst side effects; eg, the spread of SEXUALLY TRANSMITTED DISEASE and the traffic in women. Contemporary supporters of legalization are less concerned with the social evil and more concerned with the nuisance aspects of street prostitution, since attempts to suppress it have failed. Legalization is practised in several countries.

Decriminalization
Decriminalization involves the repeal of all existing laws including the offenses dealing with the exploitation or coercion of prostitutes. Sex work is considered to be a personal choice and hence a private matter between consenting adults. Proponents of this system argue that individuals and activities can be regulated without using criminal law and that the specialized protection under abolitionism reinforces the marginalized position of sex workers. Their aim is to ensure that those abusing sex workers are penalized under the appropriate sections of the criminal code (eg, kidnapping, physical assault, sexual assault, extortion, theft) and to increase the chances of women and men leaving the profession should they so wish. Proponents seek to affirm the rightful place of sex workers in the community by erasing the legal distinction between them and the rest of society and recognize labour rights and responsibilities. Sex work was decriminalized in New Zealand with the passage of the Prostitution Reform Act in 2003. It removed the offences of soliciting (i.e., street-based prostitution), brothel keeping, procurement of sex workers over the age of 18, and living on the earnings derived from prostitution.

There is general agreement that the status quo of prostitution in Canada is problematic but there is no consensus regarding what should be done. The majority of researchers conclude that it ought to be decriminalized, as do sex worker advocacy groups and some feminists. Others, including some feminists who view it as an exploitative and unacceptable part of society, are urging the government to adopt the Swedish model. Public attitudes are divided but many favour a strategy that will make some activities legal. In contrast, the current Conservative government favours a criminalization approach and is in favour of stronger sanctions: as reflected in their rejection of the recommendations from the 2006 parliamentary committee for reform and their appeal against the Ontario Charter Challenge It is clear that sex work will continue to be a controversial issue in Canada for years to come.

Author FRANCES M. SHAVER

Suggested Reading
Abel, G., L. Fitzgerald, & C. Healy with A. Taylor (eds), Taking the Crime out of Sex Work: New Zealand sex workers' fight for decriminalisation. Bristol: The Policy Press (2010); Benoit, C. and F.M. Shaver (eds), Special Issue of the Canadian Review of Sociology and Anthropology: Casting a Critical Lens on the Sex Industry in Canada vol 43,3 (2006); Canadian HIV/AIDS Legal Network, Sex, work, rights: Changing Canada's criminal laws to protect sex workers' health and human rights (2005); James H. Gray, Red Lights on the Prairies (1971); Jeffrey, L.A. & G. MacDonald, Work, Stigma, and Resistance: Sex Workers in the Maritimes Talk Back. UBC Press (2006); P. Fraser et al, Pornography and Prostitution in Canada, vol II, Report of the Special Committee on Pornography and Prostitution (1985); John P.S. McLaren, "Chasing the social evil: Moral fervour and the evolution of Canada's prostitution laws, 1867-1917, Canadian Journal of Law and Society I (1986); E. McLeod, Women Working: Prostitution Now (1982); Pivot Legal Society Sex Work Subcommittee, Voices for dignity: A call to end the harms caused by Canada's sex trade laws (2004); Report of the House of Commons Subcommittee on Solicitation Laws, The Challenge of Change: A Study of Canada's Criminal Prostitution Laws (2006).

Links to Other Sites
You and the law - Community Legal Information on the Web
An extensive listing of websites providing general legal information that may be of interest to Canadians. From University of Toronto’s Bora Laskin Law Library.