In 2001, the German parliament almost totally deregulated prostitution. The majority, left-wing coalition of Social Democrats and the Green Party trumpeted the new law as a reform that would end prudishness about “sex work” and bring the business into the open so prostitutes could bargain for higher pay and claim social insurance.
Things haven’t quite gone according to plan. Large brothels have popped up in various cities, packed with women and girls lured by human traffickers from poverty-stricken Eastern Europe and handed over to pimps upon arrival.
Sex tourists from around the globe flock to German establishments that offer unlimited sex for a “flat rate” of 100 euros (about $135) or, sometimes, “gang-bang” parties, according to extensive exposés of what some in the German press call “modern slavery.” Meanwhile, there has been no increase in prostitutes signing up for social benefits.
Amid a growing backlash from women’s rights advocates, Chancellor Angela Merkel is promising tougher rules. A likely reform is the elimination of flat-rate brothels, though how that would be enforced is anyone’s guess.
Now the Supreme Court of Canada is trying its hand at prostitution reform. The justices unanimously struck down the country’s prostitution laws and ordered parliament to rewrite them within a year. Will this experiment end better than Germany’s, or will it confirm that there’s something inherently exploitative about prostitution that neither market forces nor enlightened legislators and judges can eradicate?
Prior to the court’s ruling, Canadian law took a characteristically middle-of-the-road approach. Performing sex acts for money was not a crime. But it was illegal to solicit customers, operate a brothel or live off the “avails” of prostitution — Canadian for pimping. Basically, prostitution was permitted but contained.
To the Supreme Court, however, this “arbitrary” scheme “imposed dangerous conditions” by preventing prostitutes from working indoors, from hiring drivers, receptionists or bodyguards, and from talking to would-be clients ahead of time to screen out potential abusers.
The imposition of these risks was out of proportion to any social benefit, thus violating Canada’s 1982 Charter of Rights, the court ruled.
In contrast to the knee-jerk libertarianism that informed the 2001 German law, the Canadian court professed its intent to protect the vulnerable. It was not in denial about the fact that poverty, addiction or other problems leave “many prostitutes . . . no meaningful choice” about selling their bodies. And the justices had a point when they called out parliament for letting people sell themselves but not necessarily as safely as possible.
One obvious remedy — banning prostitution — was never on the court’s agenda, however. That’s because the plaintiffs in the case were self-styled sex workers who claimed theirs is a profession like any other and were trying to use the case to eliminate limitations that the law had placed on it.
So the court ordered parliament to make life safer for prostitutes without offering any ideas for how to do that.
Allowing prostitutes to hire “drivers” or “bodyguards” would mean de facto legalization of pimping, as Canada’s prosecutors unsuccessfully argued. Citing the notorious case of serial killer Robert Pickton, who preyed on prostitutes in British Columbia, the court implied that repealing existing laws could be justified if doing so saved “one” woman. What are the justices going to say the first time a prostitute gets killed by her driver?
As for brothels, they may be safe havens, as the court claims. Then again, they may be virtual prisons, as with some in Germany.
For all of its confusion, the Canadian ruling may have done a service: reminding us that modern norms about sex and the law push in potentially conflicting directions.
We want maximum privacy; the state has no business telling consenting adults what they can and can’t do with their own bodies in their own homes. On the other hand, we want gender equality and maximum protection of vulnerable individuals, especially children.
The German experience demonstrates that outright legalization of prostitution strikes the wrong balance. Yet German-style deregulation is what Canada will get unless parliament acts by the court’s deadline.
Prime Minister Stephen Harper’s government should learn from Germany’s experience and that of other countries, including Sweden. There, what’s illegal is buying sex — so the burden of law enforcement falls on customers (mostly men), not prostitutes (mostly women).
Since Sweden passed that rule in 1999, human trafficking and prostitution have declined in that country. In November, Harper’s party called for a “plan to target the purchasers of sex and human trafficking markets,” which sounds very much like the Swedish approach — and a promise that a lawsuit intended to legitimize sex work will end up doing the opposite.