Opinion: The case for treating the sex trade as an industry

It's not a question of whether we want prostitution in Canada. The issue is what kind of sex trade we ought to have.

Whether prostitution is really the oldest profession of all is debatable, but there’s no denying that it is a profession.

Whether we like it or not, there is a market value on sex in every human society, and there have always been people who make their living in that market. And in Canada, it’s perfectly legal to exchange money for sex. All our prohibitions are technical — no advertising, no operating a brothel, no pimping.

The effect has been to drive the sex market deeper into the shadows of Canadian society, which is exactly where most would prefer it stayed — all the better to go on ignoring it.

But that’s not going to be possible anymore. Ontario Superior Court Justice Susan Himel ruled last month that Canada’s prostitution laws have made the profession unconscionably dangerous. As such, she ruled that these laws violate the charter right to security of the person. The federal government quickly announced its intention to appeal, fuelled by the naive indignation of ministers claiming that the laws protect prostitutes.

So the debate has begun, and the early salvos have been highly emotional and based largely on morality. The argument boils roughly down to a question of what’s worse — a society that allows people to openly sell their bodies, or one that tolerates the ugly conditions and dangers that face prostitutes under our current legal framework.

Judging from the blog posts and web comments that spewed forth in the wake of the ruling, it seems most people consider that an easy question to answer, and regard those on the opposite side with contempt. But it’s hopeless to try to resolve these things by dueling over vice and virtue. Morality is a lousy thing to base a legal system on, because there are no universal principles. There are things I consider immoral that are perfectly legal, and there are crimes in which the moral dimension is negligible, or at least debatable. It’s true that things should not be legalized simply because there is a market demand for them — we humans have certain appetites that need to be constrained by law. But nor should things be prohibited simply because most people find them distasteful. Do we all own our bodies or not?

As we fumble around looking for the right thing to do, we need to make a distinction between things that are illegal because they are harmful, and things that are harmful because they are illegal. In the case of prostitution, the worst aspects of the business are exacerbated by the fact that it must take place in secret.

Prostitutes call themselves “sex trade workers” for a reason. They are not after society’s blessing, but rather recognition of the fact that theirs is an industry — one that ought to be sanctioned and regulated rather than ignored and reviled.

It’s not a question of whether we want a sex trade in Canada. We have one. Always have and always will. The issue is what kind of sex trade we ought to have, and whether we have the stomach to take control of it. Right now, the trade is largely controlled by thugs and lowlifes who prey on the vulnerable. It need not be that way.

It’s true that there is no jurisdiction where the sex trade works perfectly. Whether it’s Nevada or Amsterdam or New Zealand, lift rocks and you’ll find cockroaches. But frankly, the same could be said of virtually every industry in every nation on earth. (Anybody want to stand up and argue for the fundamental virtue of the financial industry? How about mining? Entertainment?) There are, however, important insights that can be drawn from experience in places where the sex trade has been legalized and regulated.

In Nevada, for instance, brothels are secluded away from residential neighbourhoods. Prostitutes are tested weekly for STDs, monthly for HIV, and condoms are mandatory. Working conditions are monitored by state labour authorities. Perhaps most important, when customers get out of line or abusive, working girls call the police. Right now in Canada, none of the above protections exist and, as the Robert Pickton case amply demonstrates, the consequences for women who ply the sex trade in the shadows of society can be truly horrific.

In a perfect world, perhaps there would be no market for sexual services. Everyone would have the companionship and gratification they crave, and women would all have better options. But here and now, the best we can do is face the world as it is and try to make it better. That means acknowledging that the laws governing the market for sex have created a horrendously unsafe working environment, where organized crime gets wealthy off the flesh of desperate women.

Legalize. Regulate. Tax. And strike a blow against the exploiters of the shadow economy.