The Regulation of Prostitution: Avoiding the Morality Traps

The Regulation of Prostitution: Avoiding the Morality Traps* Frances M. Shaver Department of Sociology and Anthropology Concordia University Abstract — There are three types of sexual moralism in evidence in the discussions regarding the regulation ofprostitution: the overt moral fervour of the Victorian crusaders, the more covert moralism of contemporary crusaders (residents) and legislators, and the principled moralism of contemporary radical feminism. It is maintained—using arguments and evidence from the author's own and other Canadian research—that each type has contributed heavily to the failure to adequately evaluate the nature of sex work. As a consequence, our ability to develop appropriate social and legal policies has been severely restricted. It is argued that the key to appropriate social and legal reform lies in recognizing four points: prostitution per se is not different from other work; prostitution as currently practised is different; the evaluation of commercial sex must be conducted in the broader context of human sexuality; and it is essential to focus on the specificity of women, rather than the specificity of prostitution. Resume —Trois types de moralisme sexuel se degagent des discussions portant sur la reglementation de la prostitution: I'evidente ferveur morale des croises de I'epoque victorienne, le moralisme plus discret des croises (residents) et des legislateurs contemporains et, enfin, le moralisme de principe du feminisme radical contemporain. L'auteure maintient—en s'appuyant sur des arguments et des preuves tires tant de ses propres recherches que de celles d'autres chercheurs canadiens—que I'incapacite a evaluer adequatement la nature du travail sexuel est pour une large part attribuable a chacun de ces types de moralisme sexuel. Consequemment, notre habilete a developper des politiques sociales et legislatives appropriees est severement restreinte. L 'auteure pretend que la cle des reformes sociales I would like to thank John Lowman, Bill Reimer and two anonymous reviewers for their comments to earlier versions of this paper. Thanks are due as well to my research assistants—Julia Vickers, Nadine Perkins, Sheryl Dubois, and Mary Perri—who contributed at different stages to its development. The research for this paper is supported in part by grants fromm SSHRC, FCAR and Concordia University. 123 CJLS/RCDS Vol. 9 #1 (Spring/printemps 1994) et legislatives reside dans la reconnaissance de quatre enonces: (]) la prostitution comme telle ne se distingue pas des autres formes de travail; (2) la prostitution telle que pratiquee actuellement s'en distingue; (3) revaluation de la sexualite commerciale doit sefaire dans le contexte plus large de la sexualite humaine; et, (4) il est essentiel de se concentrer sur la specificite desfemmes plutot que sur la specificite de la prostitution. Introduction Canada has had laws prohibiting prostitution-related activities for well over 200 years. One of the earliest was contained in the Nova Scotia Act of 1759. Since then, three types of provisions have been implemented: gender-specific legislation that is sexist in nature, gender-specific legislation that is protectionist/affirmative, and gender-neutral legislation. These latter two regulatory procedures parallel perspectives espoused by result-equality and liberal feminists respectively. My objectives for this paper are twofold: to illustrate the extent to which legal reform has failed and to explore some of the reasons why. I argue that the latest schemes fail in part because both the rhetoric of the debate and the laws—though altered in important ways from those considered a century ago—are still infused with sexual moralism. Three types of sexual moralism are in evidence—some more easily recognizable than others. The overt moral fervour of the Victorian crusaders is the easiest to identify. Both it and its capacity for obscuring the issues has been well documented.1 The more covert moralism of contemporary crusaders (residents) and legislators— hidden as it is behind the "nuisance" rhetoric and the gender-neutral statutes in the Criminal Code—is much more difficult to recognize. This is also the case for the principled moralism of contemporary radical feminism, veiled as it is in the classification of behaviours that serve to perpetuate women's social and sexual subordination. Their capacity for clouding the issues, however, still contributes heavily to the failure of recent social and legal policy related to prostitution. There is no point in introducing more reforms until we identify the flaws in the principled moralism inherent in radical feminism and expose the covert moralism in arguments where it is claimed there is none. The key to avoiding the traps and advancing the prostitution debate is grounded in an evaluation of these moralist underpinnings and a clear specification of an alternate approach. I begin, therefore, with a description of the critical transformations in Canadian rhetoric and law that have occurred over the last While describing the evolution of Canadian prostitution law from 1867 to 1917, McLaren does a thorough job of demonstrating that the predominance of rhetoric and the tendency of social purity crusaders to avoid the discussion of social data shrouded the extent ofthe problem they were fighting. See J. P. S. McLaren, "Chasing The Social Evil: Moral Fervour and the Evolution of Canada's Prostitution Laws, 1867-1917" (1986) 1 Canadian Journal of Law and Society 125. 124 The Regulation of Prostitution: Avoiding the Morality Traps / Shaver century. My first goal is to underscore the extent to which these three legal policies failed to resolve the problems associated with prostitution. My second is to identify the extent to which this failure is embedded in various forms of sexual moralism. Whether it be overt, covert, or principled, moralism adversely affects our ability to adequately evaluate the nature of sex work. As a consequence, our ability to develop appropriate social and legal policies is severely restricted. Since child prostitution raises different and additional problems, I restrict the discussion to adult prostitution. In addressing the issues in this article, I begin from my own experiences as community worker, government employee, and university researcher. My connection with prostitutes and prostitution goes back to 1967-1969 when I was employed as a community worker for an inner city church. An important part of my job included visits to the city and provincial jails where I met and talked with many women who worked as prostitutes. Because of this connection I agreed years later to conduct background research for Prostitution in Canada,1 a publication of the Canadian Advisory Council on the Status of Women. My views of the practice of prostitution changed considerably as I began to discover the heterogeneity in sex work and the experiences of sex workers. Since leaving the CACSW, I have gone on to critique the charges many feminists make against prostitution on the grounds that their claims are not adequately supported3.1 am currently conducting empirically grounded research with female, male, and transgender prostitutes in San Francisco and Montreal.4 My findings from these experiences indicate that what is morally troubling about sex work lies more in 2. Canadian Advisory Council on the Status of Women, Prostitution in Canada (Ottawa: CACSW, 1984). 3. F. M. Shaver, "A Critique of the Feminist Charges Against Prostitution" (1988) 4:1 Atlantis 82. 4. The overall objective of this research is to investigate the relative importance of gender and job on the objective and subjective work experiences of sex workers. Data are being collected in two stages. During the initial stage, interviews with three types of street prostitutes (male, female, and transgender) were carried out in two different field settings: the San Francisco sample (collected in 1990) includes 146 prostitutes; the Montreal sample (collected in 1991) includes 80. Interviews lasted from 30 to 90 minutes and were, for the most part, conducted during their working hours on the street or over coffee in a local restaurant. Martin Weinberg (Indiana University) was responsible for the research in San Francisco and I for the work in Montreal. The data base includes information on socio-economic background, job history, and future plans, work activity and job hazards, enjoyment of sex on and off the job, and their relations with others on and off the job. Stage two, which began this summer (1993), involves the collection of data from a sample of sex workers and a matched sample of workers in a non-sexually oriented service industry {e.g. hospital attendants). The analysis of these data will permit a stronger test of the independent effect gender and job have on variations in work experiences. 125 CJLS/RCDS Vol. 9 #1 (Spring/printemps 1994) our response to it, and to sexuality in general, than to the commercialization of sex per se.5 As a consequence, I want to situate prostitution (sex work) in the broader context of human sexual relationships. My starting point—shared by others6—is that there is a great deal of variation in sexual relations and that this variation springs from two sources: the variety of sexual and erotic activities that are possible, and the different contexts in which these activities can take place. The acts in question include popular notions of what it means to "have sex" (coitus, oral sex, anal sex); activities generally referred to as foreplay (fondling, kissing, hugging, necking); activities often judged to be "abnormal" (bondage, domination scenes); and activities often considered asexual because they do not involve physical contact (the writing of erotic letters, phone sex). The contexts in which these acts take place entail a number of relatively independent dimensions. They may be enacted, for example, between persons of the same sex or other sex, and in either the short or long term. They may be coercive or chosen; abusive and exploitive or loving and supportive; healthy or hazardous; respectful or disrespectful; commercial or non-commercial; symmetric or asymmetric. The context for our acts, therefore, represents a specific set of these relatively independent dimensions. These dimensions may be grouped in any number of ways. Some combinations have easily recognizable labels. Prostitution and sex work, for example, are labels that traditionally apply to all combinations that include the provision of sexual 5. Others concur that the strong taboos and gender stereotypes surrounding sexual matters handicap serious study into any sexual area whether it be pornography, abortion, homosexuality, AIDS, sex education, or reproductive self determination. See N. T. Boyd, "Sexuality and the State: A Comment on Moral Boundaries in the Physical Realm" (1989) 7 Canadian Journal of Family Law 353; V. Burstyn, "The Left and the Porn Wars: A Case Study in Sexual Politics" in H. Buchbinderef ai, eds., Who's on Top? The Politics of Heterosexuality (Toronto: Garamond, 1987) at 13-46; D. Lacombe, Ideology and Public Policy: The Case Against Pornography (Toronto: Garamond, 1988); R. Perkins & G. Bennett, Being a Prostitute (Sydney: George Allen & Unwin, 1985); I. L. Reiss, Journey into Sexuality: An Exploratory Voyage (Englewood Cliffs, N.J.: Prentice-Hall, 1986). This impediment also extends into the physical sciences where it can be seen in the sexually biased descriptions experts provide of sperm and eggs. For example, fertilization imagery used by biologists most often depicts the human egg as "waiting" to be fertilized and the sperm's filament as "shooting out and harpooning" the egg. This imagery continues to dominate the literature even though studies in the early 1970s revealed that the molecules released by the egg are critical to guiding and "activating" the sperm. See E. Martin, "The Egg and the Sperm: How Science Has Constructed a Romance Based on Stereotypical Male-Female Roles" (1991) 16:3 Signs: Journal of Women in Culture and Society 485. 6. P. Blumstein & P. Schwartz "Intimate Relationships and the Creation of Sexuality" in B. J. Risman & P. Schwartz, eds., Gender in Intimate Relationships (Belmont, CA: Wadsworth, 1989) at 120-29; Reiss, ibid. 126 The Regulation of Prostitution: Avoiding the Morality Traps/ Shaver services in exchange for money (i.e. that have a commercial dimension).7 Marriage, on the other hand, applies to all combinations that include legal sanction by church or state. Each of these relationships may include any of the other elements listed above: marriage may have a commercial element and prostitution a longterm component. Both may contain an exploitive or abusive element. Since the dimensions are relatively independent, marriage is not necessarily more closely related to a supportive context than prostitution is to an exploitive one. Situating prostitution in this broader context improves our ability to evaluate two questions at the heart of the prostitution debate: is sex work an acceptable profession? Will legal reform contribute effectively to the resolution of the debate? Transformations in Prostitution Regulation Gender-Specific-Sexist Legislation (Pre-Confederation) The earliest prohibitions which made the status of being a prostitute or streetwalker an offense were gender specific {i.e. directed only against women). Disruptive or annoying behaviour was not a prerequisite to detention and once the status was established, conviction would follow more or less automatically. According to McLaren, both prostitutes and those who ran or frequented common bawdyhouses were dubbed vagrants. They were seen as "social nuisances to be penalized and controlled when public concern or outrage needed to be dispelled. The purposes of the law were to get prostitutes off the streets when necessary, and to alleviate the land use conflicts and problems of public disorder associated with the operation of brothels".8 From all accounts, enforcement during pre-Confederation was sporadic and capricious. Prostitution was likely to be tolerated in port cities such as Halifax9 and on the Western frontier10 where there was a large surplus male population and repressed when it was seen as direct threat to "respectable" members of the population. Regardless of where and when the laws were enforced, however, the focus of attention was female prostitutes, whether operating on the streets or out of residences or rooms." Male frequenters (customers) were rarely harassed, 7. In some respects, this represents a very limited definition of prostitution: it excludes the activity of homemakers and other individuals who provide sexual services in exchange for goods and services. It parallels, however, the one adopted by the International Committee for Prostitutes' Rights which also stipulates that it must be entered into as a result of "individual decision". See G. Pheterson, A Vindication of the Rights of Whores (Seattle, WA: Seal, 1989) at 33. 8. Supra note 1. 9. J. Fingard cited in McLaren, ibid, at 127. 10. J. H. GRAY, Red Lights on the Prairies (Toronto: Macmillan, 1971) 11. McLaren, supra note 1; Gray, ibid. 127 CJLS/RCDS Vol. 9 #1 (Spring/printemps 1994) apparently falling outside the purview of the law as enforced because of their "uncontrollable sexual drive" and the "important social functions they provided" as husbands and fathers. These statutes and their enforcement are best described as sexist. Gender-Specific-Protectionist Legislation (Post-Confederation, Victorian) After Confederation (1867), and in response to the concerns of British reformers and their Canadian counterparts regarding the social evils of prostitution, the focus of legislation began to change and another form of gender-specific statutes were introduced, this time against male exploiters. The new Federal government immediately enacted provisions prohibiting the defilement of women under the age of 21. 12 In 1869, the existing vagrancy provisions were consolidated and expanded to embrace males found to be living on the avails of prostitution.13 The penalties were increased in 1874. In 1892 new statutes were adopted proscribing the procurement of women for unlawful carnal connection.14 "Provision was also made for the securing of a search warrant where there was reason to suspect the harbouring of a women or girl inveigled or enticed into a house of ill fame or assignation."15 These statutes were designed to protect women and children from the wiles of the procurer, pimp, and brothel keeper. Over the next 28 years, the legislation relating to procuring and living off the avails continued to be extended and strengthened. The penalty for procuring women increased from a maximum of two years to five in 1909, and to a maximum of ten years in 1920. The penalty was expanded to include whipping on second and subsequent convictions in 1913. The definition of procuring was enlarged to include everyone who "on the arrival of any women or girl in Canada, directs her to any common bawdy-house" or who "for the purposes of gain, exercises control, direction or influence over the movements of any woman or girl in such a manner as to show that he is aiding, abetting or compelling her prostitution with any person or generally". At the same time, men charged with living off the avails of prostitution were subjected to a reverse onus clause that required them to satisfy the court that they had other means of support.16 Although the links between the initiatives of Victorian reformers and the development of national policy has not been explored in detail, McLaren argues that the national temperance, women's rights, and church organizations created and maintained a climate in which the evils of white slavery were very much in 12. Canadian Advisory Council on the Status of Women, supra note 2 at 131. 13. McLaren, supra note 1 at 131. 14. Canadian Advisory Council on the Status of Women, supra note 2 at 131; McLaren, ibid, at 136. 15. Ibid. 16. Canadian Advisory Council on the Status of Women, supra note 2 at 132. 128 The Regulation of Prostitution: Avoiding the Morality Traps / Shaver the public domain.17 The objectives of the reformers were to abolish the "social evil" by implementing legal reforms that would punish the exploiters and rescue women and children from sexual exploitation in general and white slavery in particular. Their initiatives miscarried on two levels. First, the reformists themselves failed to lobby for the removal of legislation penalising prostitutes: legislation making it impossible for them to work without being subject to criminal offense remained in place. Second, as illustrated convincingly by McLaren, the laws against the exploiters were the least often enforced by those in power. Between 1887 and 1897 there were no entries for either defilement or procuring, nor for the nuisance offense of keeping a bawdy-house. Convictions for the vagrancy offenses of keeping, frequenting, or being an inmate of a bawdy-house increased, but there was no decisive upward trend in response to the pressure to abolish the social evil.18 What does become evident after 1895—the first year a gender breakdown of the annual conviction rates for the bawdy-house offenses is available—is that a much greater number of convictions were registered against women than men: in 1895 there were 278 convictions against women and 182 against men; the gender breakdown in 1896 was 439 to 224, and in 1897 it was 519 to 336. The conviction rates for bawdy-house offenses increased after 1900. The average annual rate of conviction between 1901 and 1910 was 1741 and increased to 3868 between 1911 and 1917. However, the convictions of females significantly outnumbered those of males: between 1901 and 1910, 73% of those convicted on bawdy-house offenses were female while only 27% were male. The corresponding figures for the years 1911-1916 show some closing of the gap but the differential is still significant with 65% of the convictions accruing to women and only 35% to men.19 In 1911, when convictions for procuring became numerous enough to warrant reporting, the figures were very small: the annual rate never exceeded more than 66 convictions for all of Canada. It "vacillated between 11 and 16 a year between 1911 and 1914; it then jumped to 66 in 1915, fell to 34 in 1916 and rose again to 52 in 1917".20 These figures are insignificant in comparison to the fervour over the extent of the white slave trade. The determination to punish exploiters and rescue women and children did not carry over into practice. What did carry over was the criminalization of women selling sexual services. The social purity movement waned in the 1920s and the sex trade thrived for 50 years with little public comment.21 When the debate was rekindled in the late 17. 18. 19. 20. 21. McLaren, supra note 1 at 149. Ibid.at\42. /feW. at 141-42, 151. Ibid, at 150. J. Lowman, "Prostitution in Canada" in M. A. Jackson & C. T. Griffiths, eds., Canadian Criminology: Perspectives on Crime in Canada (Toronto: Harcourt Brace Javanovich, 1991) at 122. 129 CJLS/RCDS Vol. 9 #1 (Spring/printemps 1994) 1970s and early 1980s, it was prompted, not by the "white slave trade" or the international traffic in women, but by growing concern about the increased visibility of street prostitution in residential neighbourhoods. The rhetoric used during this period shifted into a less moralistic, more neutral expression of concern. The rationale for the suppression of prostitution 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 prostitution.22 The solutions most groups advocated were simply aimed at strengthening the soliciting section of the Criminal Code. In opposition to the limited concerns of this coalition, Prostitutes' Rights Organizations, civil libertarians, a variety of feminists' groups, and the Fraser Committee23 argued for much broader legal and social reform. In large part, their concerns duplicated those manifested by the Victorian reformers. They called for the penalization of those profiteering from the prostitution of others and a full array of social reforms to eradicate the objective conditions that force people into prostitution. In addition, they clamoured for the repeal of legislation making it impossible for a prostitute to work without being subject to criminal offense.24 Gender-Neutral Legislation (Present) The prostitution legislation enacted during this period (post-1972) 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 prerequisite to detention was expanded to include 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 includes customers. It 22. Special Committee on Pornography and Prostitution, Pornography and Prostitution in Canada (Ottawa: Minister of Supply and Services Canada, 1985) (chair: P. Fraser); Lowman, ibid.; F. Shaver, 'The Prostitution Debate" in Canadian Advisory Council on the Status of Women, Prostitution in Canada (Ottawa: CACSW, 1984) 53 at 54-56. 23. The Special Committee on Pornography and Prostitution (the Fraser Committee) was appointed in 1984. Its mandate was to describe pornography and adult prostitution and the laws regulating them in Canada, to review prostitution law in selected countries, to hold public hearings, and to recommend solutions to the various problems identified. See ibid. 24. Shaver, supra note 22; Special Committee on Pornography and Prostitution, ibid. 130 The Regulation of Prostitution: Avoiding the Morality Traps / Shaver states that every person communicating for the purposes of engaging in prostitution or of obtaining the sexual services of a prostitute is liable. Thirdly, the protection of women under the procuring offense now extends to both men and women and persons of either sex can be charged with procuring and living on the avails. Fourth, customers of juvenile prostitutes and pimps who engage youths were singled out for more severe sentences in 1988. In spite of these latter two amendments, the major focus of discourse during this period has been the nuisance of street prostitution to law-abiding citizens. The legislation was revised mainly in response to the public outcry of several lobbying groups (municipalities, concerned residents, and police). The latter group was concerned with the pragmatics of enforcing the existing law and the former two with the "cleaning up of the streets". The major targets identified are the street prostitutes (female and male) and their customers (male). Although the enactment of these gender-neutral statutes took more than a century to achieve, they fared no better when examined closely than did the application of the gender-specific-protectionist statutes described above. In 1972, when the soliciting law was enacted, the words "every person" were not universally interpreted in a gender-neutral manner. Judicial pronouncements on whether the soliciting law applied to both women and men, prostitutes and customers were many and varied and took place in the Supreme Court of Canada as well as in the Appeal Courts of British Columbia and Ontario.25 Further, even in those jurisdictions that endorsed a gender-neutral interpretation, it was rarely so enforced.26 The communicating section (which has been in effect since December 1985) was meticulously designed to be non-sexist in nature and to criminalize both prostitutes and customers. At first glance, it appears to have fared much better than the soliciting section: the enforcement patterns in evidence nationally indicate 25. There was also much discussion regarding the meaning of the term "solicits". The dialogue focused on the actions that constituted soliciting. It is not gender related and therefore is irrelevant to this discourse. For a brief discussion of the decisions taken on this issue, see Canadian Advisory Council on the Status of Women, supra note 2 at 2023 and Special Committee on Pornography and Prostitution, supra note 22 at 419-26. 26. The sexist enforcement of the soliciting provision has been well documented. See Canadian Advisory Council on the Status of Women, ibid.; Canada, House of Commons, Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, No. 86, 90, 91 (May and June 1982) including submissions from the National Action Committee on the Status of Women, the National Association of Women and the Law, the Canadian Association of Elizabeth Fry Societies and the Vancouver Coalition for Non-Sexist Criminal Code; Special Committee on Pornography and Prostitution, ibid.; i. Lowman, "Notions of Formal Equality Before the Law: The Experience of Street Prostitutes and their Customers" (1990) 1:2 The Journal of Human Justice 55; J. Ridington & B. Findlay, Pornography and Prostitution (Vancouver: Vancouver Status of Women, 1981). 131 CJLS/RCDS Vol. 9 #1 (Spring/printemps 1994) that the communicating section did significantly change the proportion of women and men charged. Up to 1977, when the soliciting law was in place and actively being applied,27 many more females than males were charged: at its worst the average ratio is almost 7 females to every male, at its best it is 3.4 females to every male. After 1985, when the communicating section was introduced, the proportions are much closer to parity (1.1 women to 1.0 men), indicating a huge increase in communicating charges involving customers, at least at the aggregate level28 (cf. Table 1). Table 1 Adults Charged with Prostitution Offenses in Canada by Gender and Year (1974-1990) Bawdy House Other* Procuring Year 1974 1975 1976 1977 1978 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 Female 416 620 543 639 478 428 421 471 266 470 507 473 440 407 373 345 314 Male 295 378 544 526 265 209 247 681 125 200 336 241 316 372 214 255 168 Female 81 33 17 15 21 20 18 3 34 31 22 24 67 103 162 22 52 Male 66 62 54 52 56 57 60 32 76 72 88 84 111 208 130 137 125 Female 1,885 1,719 1,478 1,273 368 473 521 377 127 70 18 69 3,356 4,428 4,910 4,910 5,157 Male 269 256 303 380 644 125 262 270 56 59 37 60 2,512 4,760 4,835 4,019 4,651 Source: Canadian Crime Statistics Catalogue No. 85-205. * Includes soliciting and transporting up to and including 1985, and communicating and transporting after 1985. A small number of charges relating to living on the avails are included with both the soliciting and communicating charges. 27. In 1978, an Appeal Court decision established that prostitutes could not be convicted of soliciting unless their behaviour was "pressing and persistent"; simply approaching a customer and mentioning a price was no longer deemed sufficient to warrant arrest. As a result of this decision, the law fell into disuse. See Lowman, supra note 21 at 118. 28. These figures are somewhat deceiving—an unknown but small number of men were charged with transporting and living on the avails—but they do not taint the conclusion. Since the error serves to overestimate the number of "customers" charged and decrease the size of the gender-gap reflected in the ratio, it provides a stronger test of the hypothesis. 132 The Regulation of Prostitution: Avoiding the Morality Traps / Shaver Nevertheless, a closer look at the city-based data sets gathered for the Justice Department during the three years following the enactment of the communicating section tells a slightly different story. First, data from nine of the ten Canadian cities studied indicate that more prostitutes than customers are charged29 and that their sentences are more severe.30 Even first offender prostitutes received more severe sentences than first offender customers in Vancouver and Toronto,31 although this did not appear to take place in Montreal. Second, male prostitutes appear to be under-represented in the charge statistics in four out of five major Canadian cities.32 Third, enforcement patterns also differentiate between customers, some appear to be more at risk than others. Data from Vancouver indicate that the weight of the law falls primarily on lower-class men: 83 (91%) of the 91 men charged under the communicating section came from the generally lower-class east side of Vancouver.33 These enforcement patterns, in contrast to the aggregate data on soliciting and communicating in evidence nationally (cf. Table 1), indicate that except for procuring—which continues to have a low annual conviction rate—prostitution remains a predominately female crime and the control of street prostitution the most pressing issue. Clearly, legal reform on its own does not hold the key to change. The genderspecific-protectionist legislation enacted after Confederation and the genderneutral provisions developed post-1972 failed to be enforced in the manner outlined in the statutes. What is reflected in the enforcement of the law during each of these periods is the gender-specific-sexist legislation of the preConfederation era. In short, regardless of the type of reform implemented, the law in practise continues to accept the "truth" of the popular stereotype about prostitution: female prostitutes create the disruption, women do not choose it, and wives' reluctance (or their unavailability) serves to maintain it.34 To overcome this bias it is necessary to deal with the sexual moralism which lies behind its application and enforcement. 29. Canada, Department of Justice, Street Prostitution: Assessing the Law Synthesis Report (Ottawa: Department of Justice, 1989) at 41. 30. Ibid, at 60. 31. Ibid, at 61. 32. Male prostitutes were under-represented in Calgary, Toronto, Halifax and Vancouver. Montrdal was the exception. See ibid, at 42-44. Once arrested, however, Toronto data show that there are no significant di fferences i n rates of detention and sentenci ng of male and female prostitutes. See P. J. Carrington & S. Moyer, "A Comparison of the Treatment of Prostitutes and their Customers by the Police and Courts in Toronto, 198687" (Paper presented at the Canadian Sociology and Anthropology Association Annual Meeting, Kingston University, Kinston, Ontario, 1991).[unpublished] at 8-12. 33. Lowman, supra note 26 at 69-72. 34. C. Smart, Feminism and the Power of the Law (London: Routledge, 1989) at 56. 133 CJLS/RCDS Vol. 901 (Spring/printemps 1994) Sexual moralism appears in at least three general forms. A form of covert moralism is in evidence in the rhetoric used by residents, legislators, and the public at large to define prostitution and argue nuisance. What I refer to as principled sexual moralism is conspicuous in the arguments of radical feminists and left regulationists that relegate prostitution to the dark side of the service industry and foster definitions of "appropriate" sexuality. The overt moralism of the Victorian feminists, so clearly documented by McLaren,35 is much less evident in the more neutral discourse of the contemporary debates and so will not be addressed. Sexual Moralism in Rhetoric and Law If covert moralism were nonexistent, prostitution would refer to the buying and selling of sexual services and apply to both sexes regardless of their role in the exchange. Most dictionaries, however, still define prostitute as "a woman who has promiscuous sexual intercourse for payment" and prostitution as "the act, practice or profession of offering the body for sexual relations for money".36 Similar attitudes are reflected by my students. They are somewhat more open-minded regarding the sex of the prostitute (mentioning both men and women), but over the last three years, 58% to 69% of the 200 students I polled when teaching the Social Construction of Sexuality focused on the seller when defining prostitution. A small minority specified that sexual services were being sold, but the majority stipulated that prostitution involved the selling of one's "body". Covert moralism also lies at the heart of the charge that street prostitution is a nuisance. One form is imbedded in the conflict over land-use; another in the rejection of sex as recreation. Brannigan and Fleishman37 present arguments that the nuisance rhetoric surrounding these issues is a screen for suppressing immoral sexual activity. The discourse over "public" nuisance implies a broadly based consensus over the peace that is disturbed. However, practically all the concern arises over the competing interests of those who would conduct prostitution—a legal activity—and those who would conduct other more traditional businesses, or whose residential land-use base is the site of the prostitution business. Concerns over morality are more prominently intertwined with land-use conflicts when it is argued that legitimate activities and persons will be smeared by contiguity to immoral activities: "What will our children and/or our customers think?". Brannigan and Fleishman conclude that prostitution causes "nuisance" not through immodest soliciting, or noisome traffic from clients but "through its proximity to communities 35. McLaren, supra note 1. 36. These definitions were taken from the 1972 Larousse Illustrated International Dictionary. The revised and updated 1987 version provides the same two definitions. 37. A. Brannigan & J. Fleishman, "Juvenile Prostitution and Mental Health: Policing Deliquency or Treating Pathology?" (1989) 4 Canadian Journal of Law and Society 77. 134 The Regulation of Prostitution: Avoiding the Morality Traps / Shaver which reject the public acknowledgement that sex is recreation, that sex is entertainment, and that it can be had commercially, anonymously and promiscuously".38 If prostitution were seen to cause a nuisance simply through immodest soliciting, the drug trade, and noisome traffic, these activities would be the ones singled out for proscription under the law. That they have not been so identified is clear from the way in which the communication law has been enforced. Principled moralism is most evident when examining the sexual conservatism of radical feminists such as Pateman,39 Overall,40 and MacKinnon41 and left regulationists such as Matthews42 and Boyd.43 The former usually demonstrate that prostitute women are like other women {i.e. they are not "bad girls")44 and then contend that prostitution is not like other work. When developing their arguments, several points are typically made: it is bodies, not services, that are being sold; sex workers must distance or alienate themselves from their work; buying and selling are inherent in sex work in a way that is not inherent in other work; it is the only asymmetric service industry (women sell, men buy), and individual women who choose to work in the sex industry harm the collectivity of women. The left regulationists limit their denouncement of prostitution to the operation of large-scale commercial operations—small business entrepreneurships are deemed viable. Each of these claims will be examined below. Pateman, in an attempt to identify what is wrong with prostitution, insists that bodies not services are being sold. Since the majority of prostitutes are women 38. Ibid, at 90. 39. C. Pateman, The Sexual Contract (Stanford: Stanford University Press, 1988). 40. C. Overall, "What's Wrong With Prostitution? Evaluating Sex Work" (1992) 17:4 Signs: Journal of Women in Culture and Society 705. 41. C. A. MacKinnon,7btvarrfaFe/«mw/r/ieoryo///!e5to/e(Harvard:HarvardUniversity Press, 1989). 42. R. Matthews, "Beyond Wolfenden? Prostitution, Politics and the Law" in R. Matthews & J. Young, eds., Confronting Crime (London: Sage, 1986). 43. Boyd, supra note 5. 44. Canadian feminists challenged the notion of prostitutes as "bad girls" by providing clear evidence that they are women struggling to maintain their socio-economic independence in a male-dominated world. For discussions of this work, see Canada, House of Commons, Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, supra note 26; Canadian Advisory Council on the Status of Women, "On Pornography and Prostitution: A Brief Presented to the Special Committee on Pornography and Prostitution (Ottawa: Canadian Advisory Council on the Status of Women" 1984) [unpublished]; National Action Committee on the Status of Women, "Prostitution: A Brief Presented to the Special Committee on Pornography and Prostitution" (Toronto, 1984); Special Committee on Pornography and Prostitution, supra note 22. 135 CJLS/RCDS Vol. 9#1 (Spring/printemps 1994) and since women under patriarchy are not "individuals" with full ownership of the property in their persons, they cannot do otherwise.45 Further, she argues, the bodies of prostitutes when sold are put to very different use than the bodies of professional athletes when sold. "Owners of baseball teams have command over the use of their players' bodies, but the bodies are not directly used sexually by those who have contracted them."46 Therefore, she concludes, prostitution cannot be defended on the grounds that prostitutes are workers in exactly the same sense as other wage labourers. However, other than to declare that "prostitution affirms the law of male sexright",47 she provides no clear rationale or empirical evidence to support her claim that selling women's bodies for sex is different than selling them for other purposes. It is simply "different" because the "integral connection between sexuality and sense of the self means that, for self protection, a prostitute must distance herself from her sexual use".48 Prostitutes do, indeed, adopt such techniques. The women especially employ numerous routines to maintain the impersonal, nonsexual nature of their involvement in the service exchange. Several are documented in the Montreal interviews. One technique involves detached concern: they set the price, name the location, wash the client, position the condom, and limit the exchange to the service named during the initial negotiation.49 Another involves the minimalization of body contact during sexual intercourse. In one case a woman described how, during intercourse in the "missionary position", she places her hands on the client's shoulders and uses her arms to prevent him from lowering the top part of his body on to hers. In another case a woman described how she places a square of cloth with a hole in the centre between herself and the client. Yet another technique involves image management. Dirty work (anal sex, unsafe sex, domination scenes) is differentiated from clean work (oral sex and coitus with condoms), and dishonourable workers (those who steal, use drugs, lower or raise their prices) from honourable ones. Their organizations (COYOTE, POWER, CORP)50 try to construct images more conducive to the notion of sex as work than sex as sin.51 Distancing strategies, however, are not unique to sex work. Doctors, nurses, hospital attendants, masseurs, morticians, social workers, psychologists, flight 45. 46. 47. 48. 49. Pateman, supra note 39 at 2091. Ibid, at 206. Ibid, at 208. Ibid, at 207. Others report similar findings. See Perkins & Bennett, supra note 5; E. McLeod, Working Women: Prostitution Now (London: Croom, 1982); M. Stein, Lovers, Friends, Slaves (New York: Berkley Medallion, 1974). 50. POWER (Prostitutes and Other Women for Equal Rights); CORP (Canadian Organization for the Rights of Prostitutes); COYOTE (Call Off Your Old Tired Ethics). 51. V. Jennes, "From Sex as Sin to Sex as Work" (1990) 37:3 Social Problems 403. 136 The Regulation of Prostitution: Avoiding the Morality Traps / Shaver attendants, and employees in many other "respectable" occupations also must distance themselves from the bodies and personal lives of the clients with whom they work. This professional distancing is often required as a form of emotional protection while on the job; in other cases it is integral to a code of professional ethics. Further, we often assume that the adoption of such strategies serves to differentiate the better employees from the mediocre ones.52 Why then, is it necessary to assume that prostitutes who use such techniques/routines are not only worse at their job, but are also more at risk than others who do the same? Nor am I convinced that the bodies of prostitutes are necessarily more disadvantaged than the bodies of professional sportswomen and sportsmen. Owners of baseball teams may not use the bodies of the players sexually but they do have greater command over the use of their players bodies than a client has over the "use" of a prostitute's body. Ball-club owners contract in the long term, clients in the very short term (15-20 minutes on average). Owners buy and sell players with little regard for their family situations and expect them to relocate when sold. Clients contract for a very limited set of services (a hand-job, a blow-job or a straight lay) and have little claim, if any, over where the exchange will take place and no control at all over where the prostitute and her or his family will live. Overall, who also examines the "wrongness" in sex work, takes a different tack than Pateman, evaluating it first under capitalism and then under patriarchy. She starts from the premise that prostitutes sell their services (not their bodies) and concedes that some do so by choice. Thereafter she argues that the danger, coercion, and lack of reciprocity involved are neither essential nor unique to sex work. In opposition to Pateman, Overall concludes that prostitution under capitalism is no better or worse than any other form of paid labour.53 Prostitution under patriarchy, however, is a different matter. Overall makes two points. First, it is different when considered in the context of patriarchy because it is one of the only asymmetrically gendered service industries: women sell and men buy. Unlike other forms of labour mostly performed by women, prostitution is dependent "both for its value and for its very existence upon the cultural construction of gender roles in terms of dominance and submission".54 This argument is similar to Pateman's regarding male sex-right. Both insist that prostitution would never develop as an "equal opportunity service" outside patriarchy since it is grounded in the inegalitarian structures within patriarchy. Second, it is different because sex work (prostitution) under patriarchy varies in a crucial way from other forms of women's labour.55 Unlike Pateman, Overall 52. A. R. Hochschild, 77ie Managed Heart: Commercialization ofHuman Feeling (Berkeley: University of California Press,1985). 53. Overall, supra note 40 at 709-15. 54. Ibid, at 719. 55. Ibid, at 716. 137 CJLS/RCDS Vol. 9 #1 (Spring/printemps 1994) provides an explanation. While women's work of cooking, child care, or nursing is often commoditized, these forms of labor can and do also exist independently of any form of commercialization or exchange. Prostitution, by contrast, is defined in terms of buying and selling, or more generally, in terms of an asymmetrical relationship of exchange in which the sex worker provides sexual services and the customer supplies recompense for those services, usually in the form of money, but sometimes also in the form of food, lodging, clothing, or "luxuries".56 In short, prostitution is different "because buying and selling are inherent in sex work in a way that they are not inherent in the work of growing and preparing food, caring for children, or nursing the ill".57 There are three problems with Overall's account. The first revolves around her contention that prostitution is an asymmetrical service industry that is dependent "for its very existence" upon the dominant and submissive construction of male and female gender roles under patriarchy. This assertion conceals three important gender differences on the supply side. One, men do sex work: estimates of the men involved in street prostitution alone vary from 10% to 25%. 58 Two, female prostitutes earn substantially more that do male hustlers. The average weekly earnings of the female street prostitutes we interviewed in Montreal was $18002000 compared to $600-800 for men.59 Three, male hustlers run less risk from onthe-job hazards than do either women or transgender prostitutes. They report fewer rapes and fewer beatings than either of the other two groups and are less likely to be arrested for prostitution-related offenses.60 When they are assaulted it is more likely to be related to their alleged homosexuality than their involvement in sex work.61 Gender differences prevail with respect to the pimp factor as 56. 57. 58. 59. Ibid. Ibid, atlll. Supra note 29 at 41-42. F. M. Shaver, "The Gendered Management of Sex Work." (Paper presented at the CSAA Annual Meeting, Learned Societies, Carleton University, 1993). These estimates are based on the average number of customers women and men see per week and the type of services usually provided. Female and male prostitutes interviewed in Montreal in 1991 serviced an average 28.5 and 14.5 customers per week respectively. On the average women charged $48 for oral sex, $95 for coitus, and $130 for a combination of both. About half their clients simply wanted oral sex; the rest were divided between the other two services. The men charged less on the average ($40 for oral sex and $74 for anal sex) and the sexual service they provided was typically limited to oral sex. 60. Perkins & Bennett, supra note 5 at 238-41; Shaver, ibid. 61. Perkins & Bennett, ibid, at 240. 138 The Regulation of Prostitution: Avoiding the Morality Traps / Shaver well—the most oft cited source of violence and abuse—they are rarely if even involved in homosexual prostitution.62 Disregard for these supply-side differences reinforces the view that prostitution is a gender-specific issue and implies that gender relations within prostitution are worse than in other situations. While I do not wish to make light of the violence experienced by prostitute women, we must acknowledge the large number of women outside prostitution who are involved in abusive relationships: one in ten women in Canada are battered by the men with whom they live. Such findings, coupled with the gender variations in job hazards, suggest that the risks are gender-based rather than work-based. Failing to recognize the gendered income disparity on the supply-side obscures the fact that sex work is a reflection of the socio-economic disparity between women and men, and the current underevaluation of almost all of the work done by women. Other than modelling, prostitution is probably the only occupation in which women earn more than men. While I tend to agree that prostitution "in its present form" is a reflection of patriarchal social relations—it is both sexist (women dominate the supply side and men the demand side) and highly problematic (the conditions of work, especially of street prostitutes, are deplorable)—the asymmetry is tied to current market conditions and not prostitution per se. Consequently, I fail to see that sex work would cease to exist outside patriarchy. It is just as likely that the conditions for both workers and clients would simply improve or, at the very least would reflect the social relations in the new order, whatever they may be. The second problem with Overall's account is that she enshrines sex work as unique by definition alone: sex work entails "a sexual event or relationship ... for the sake of material gain".63 It seems just as reasonable to assume that sex work— call it "lover care" or "relational labour"—exists within relationships that are independent of any form of commercialization or material gain. A developing industry attests to the fact that some couples spend a great deal of time trying to achieve meaningful sexuality in their relationships. There is a plethora of marriage and relationship manuals and a growing number of marriage and sexuality counsellors. Such products and professions challenge a definition of sex work that labels it as inherently different from other forms of work and restricts it to a patriarchal market place. Sex work can be paid or unpaid just as can the work of cooking, child care, and nursing. Finally, even if sex work were, as Overall argues, inherently different from other forms of work, she has failed to address the issue of why this renders it inappropriate, or makes it wrong. She must demonstrate that the difference alone 62. SpecialCommitteeonPornographyandProstitution,j«pranote22at379;G. A. Forbes, Street Prostitution in Vancouver's West End (Vancouver: Vancouver Police Department, 1977); J. Lowman, "Prostitution in Canada" (1985) 13:4 Resources for Feminist Research 35 at 35-36; Perkins & Bennett, ibid.; Shaver, supra note 59. 63. Overall, supra note 40 at 717. 139 CJLS/RCDS Vol. 9 #1 (Spring/printemps 1994) is unacceptable in order for it to be deemed wrong. The data presented above regarding the gender differences in the experience of job hazards clearly indicate that a good deal of what is "bad" about the job—especially the work of street prostitutes—is linked to the gender of the worker rather than the commercialization of sex. Most of the problems that remain are tied to the stigma attached to the work and its para-legal status, rather than to the work itself. Imbedded in the claims of principled moralism, is the notion that two factors differentiate prostitution from other forms of sexual relations: the exchange of money for sex and multiple partners. Tabet64 challenges these assertions, including my own regarding the existence of non-material sexual relationships, by demonstrating that all sexual relationships involve some form of compensation and that many involve multiple partners. The exchange of money for sex and multiple partners are, therefore, insufficient to differentiate prostitution from other forms of sexual relations. What did serve to differentiate it from other forms of sexual exchange in the societies she studied were the occasions when women ceased to be objects of exchange between men (i.e. when they stepped outside the rules of exchange and presented themselves as subjects): "ce n'est ni la remuneration donnee a la femme (ou a son maitre) pour le service sexuel, si repandue soit-elle, ni la promiscuite, mais bien plutot l'usage de la sexualite des femmes hors et a l'encontre des structures de 1'echange des femmes."65 In other words, it is when women take charge of their own lives—when they cease to be victims—that they are most likely to be stigmatized for their sexual activities. What we have here is a description, not a judgement call. And it is an accurate one. Many prostitutes (sex workers) are self-employed. Findings from the field studies conducted for the Justice Department in the early 1980s indicate that many women work for themselves: 62% in Vancouver,66 50% in Toronto,67 and 69% in Montreal68 claimed they worked for themselves. The incidence of self-employment was smaller in the Maritimes69 and on the Prairies70 but still in evidence. Data from the early 1990s continue to suggest that the majority of female sex workers are self-employed.71 Self- employment is argued to be even 64. 65. 66. 67. 68. 69. 70. 71. P. Tabet, "Du don au tarif" (1987) 490:1 Les temps modernes 453. Ibid, at 45^6. Lowman, supra note 22 at 134. J. Fleishman, A Report on Prostitution in Ontario (Ottawa: Department of Justice Canada, 1984) at 54. R. Gemme, N. Payment & L. Malenfant, Street Prostitution: Assessing the Impact of the Law: Montreal (Ottawa: Department of Justice Canada, 1989) at 127. N. Crook, A Report on Prostitution in the Atlantic Provinces (Ottawa: Department of Justice Canada, 1984) at 74. M. Lautt, A Report on Prostitution in the Prairies (Ottawa: Department of Justice Canada, 1984) at 95. Estimates by CORP indicate that 60% of the street prostitutes in Toronto work for themselves. Reported in "Fighting the Myths of Prostitution" The [Toronto] Globe and 140 The Regulation of Prostitution: Avoiding the Morality Traps / Shaver higher among those who work off the street.72 Furthermore, these are the very women—the ones who choose to be prostitutes—who are most likely to be treated with distain and loathing. Here I quote from a letter to the editor of a Montreal newspaper. It is written by a resident who says that her neighbourhood has "become a living hell" due to drugs and street prostitution: "As for the prostitutes who are neither on the streets nor on drugs and thus, who are prostitutes more by choice than necessity, the citizen in me tolerates them and the female in me vomits on them."73 Toleration comes easily and is at one and the same time a manifestation and a reinforcement of prostitutes' powerlessness. Like disdain, it is reserved for those one considers "less than equal, morally inferior, and weak; those equal to oneself, one accepts and respects".74 Certainly a good many people, including feminists, find it easier to think of prostitutes as victims.75 This is one reason for the maintenance of the popular stereotype. Another reason for the maintenance lies in the arguments of Pateman,76 Overall,77 and MacKinnon.78 What they find unacceptable about prostitutes and prostitution appears to be that an individual woman would choose it when (in their minds) such a choice seriously harms the collectivity. If this is the case, what they have done in order to acknowledge prostitutes is to construct them as victims. What they have done to denigrate prostitution is to argue that it reinforces male sex right. In the process, prostitutes are held responsible for prostitution. As mentioned above, assertions regarding appropriate sexual behaviour are more explicit in the writings of radical feminists than in the denials of covert moralists. Pateman's arguments in particular imply that women who choose to sell their bodies are behaving inappropriately: the sale publicly affirms the law of male sex-right, and men gain public acknowledgement as women's sexual masters.79 72. 73. 74. 75. 76. 77. 78. 79. Mail (24 February 1992) A2. The data we gathered while interviewing street prostitutes in Montreal in 1991 indicate that 50% of the women are self-employed. See Shaver, supra note 59. Private conversation with N. J. Almodovar, author of Cop to Call Girl (New York: Simon & Schuster, 1993) and Director of COYOTE, Hollywood, CA. [Montreal] Mirror, 8-15 July 1993. Liazos cited in Dominelli, "Power and the Powerless: Prostitution and the Reinforcement of Submissive Feminity (1986) 34:1 Sociological Review 65. For examples in support of this argument, see Shaver, supra note 3; Pheterson, supra note 7 at 192-97; Almodovar, supra note 72 at 301-10; L. Bell, ed., Good Girls/Bad Girls: Sex Trade Workers and Feminists Face to Face (Toronto: The Women's Press, 1987). Pateman, supra note 39. Overall, supra note 40. MacKinnon, supra note 41. Pateman, supra note 39 at 208. 141 CJLS/RCDS Vol. 9#1 (Spring/printemps 1994) A closer examination of the conditions of the exchange tend to belie this charge. First, as mentioned earlier, the exchange is very limited. Second, there are important gender differences regarding the way street prostitutes manage sexual relations with their clients. Women are more careful to point out that the service they provide is very limited—a hand-job, a blow-job, straight sex (coitus), or halfand-half (a combination of fellatio and coitus)—and the majority insist on using condoms. Their objective is to complete the sexual transaction within 20-30 minutes at most. The more personal touches—kissing, hugging, hand-holding, prolonged eye contact, the touching and stroking of breasts—are rarely a part of their repertoire. Male hustlers, on the other hand, tend to engage in and enjoy a greater variety of services than do female prostitutes and they negotiate lengthier time periods.80 Such differences indicate that male clients have a much more limited access to women's bodies than to men's. Finally, the validity of Pateman's charge is undermined by the fact that prostitutes are the one group of women who disavow male sex-right by insisting upon payment (access to their bodies is not free). MacKinnon seems to go one step further. She argues that sexuality of any kind is a social construct of male power:81 in other words, it is organized to require sex inequality for excitement and satisfaction.82 Such claims suggest that all forms of heterosexual behaviour are inappropriate, not just commercial ones. With respect to prostitutes, such theorizing discredits the experiences of the women involved and may in fact serve to disempower them. If MacKinnon is simply saying, however, that it is sex under patriarchy that is the problem, then it is just as likely that commercial sex will improve under different conditions as will non-commercial sex. Prostitution, therefore, is not destined to become obsolete. Left regulationists scrutinized the conditions of the sex trade somewhat more attentively. Some questioned the extent of the exploitation and corruption involved in prostitution by examining more closely the forces—both economic and interpersonal—that pressure women into prostitution.83 Others challenged notions regarding the subjugation, subordination, and objectification of those selling sexual services.84 As a consequence of their closer look at the trade, left regulationists condone the commercialization of sex by small business entrepreneurs. The notion of prostitution as undesirable, or as different from other work, is still pervasive in this position, however. In Matthew's case, it has been narrowed to 80. McLeod, supra note 49; Perkins & Bennett, supra note 5; Shaver, supra note 59; L. A. Visano, This Idle Trade: Occupational Patterns of Male Prostitution (Concord, Ont.: VitaSana Books, 1987). 81. MacKinnon, supra note 41 at 128. 82. Ibid, at 243. 83. Matthews, supra note 42. 84. Boyd, supra note 5. 142 The Regulation of Prostitution: Avoiding the Morality Traps / Shaver the context of the commercialization of sex on a large-scale basis. He argues that legislation on brothels can and should be used to minimize the economic exploitation of the workers by placing limits on the size of the operation. "If prostitution is to be efficiently exploited, it has to be organized on a large scale basis, preferably under one roof. Only in this way can the capitalist guarantee the quality and the quantity of the service and control profits".85 In short, he argues that we discourage capitalist involvement in order to maintain worker integrity. It is an interesting argument but it is incomplete. Matthews fails to justify why prostitutes need special protection from capitalist entrepreneurs. If legislation to minimize economic exploitation is to be developed should it not apply to all workers, or at least to the most vulnerable such as garment workers, domestic workers, and farm labourers? Boyd's failure lies elsewhere. He challenges the notion that prostitutes are subordinated but continues to use language that regulates prostitutes to this position. Those who succeed are referred to as "successful" women (successful appears in quotation marks in his text) who "sell men the right to use their bodies for sex".86 Prostitutes are also referred to as women who "rent their orifices to male penises".87 The success in left regulationism is that it, along with other researchers88 and advocates for the rights of prostitutes,89 strives to effectively differentiate between the lover and the abusive business manager. The Criminal Code defines a pimp as "everyone who lives wholly or in part on the avails of prostitution of another person". On May 21, 1992, the Supreme Court of Canada upheld this provision. Although all seven justices ruled the law violates an accused's constitutional right to be presumed innocent until proven guilty, the majority (4) said the restriction was reasonable under the Charter of Rights and Freedoms. Mr. Justice Peter Cory, writing for the majority, said pimps are "parasites" who cruelly threaten, exploit and abuse, often physically, prostitutes who are a "particularly vulnerable segment of society". General claims such as this obscure the nature and source of the exploitation. They serve to maintain legislation making it impossible for prostitutes to cohabit with anyone (of either sex). More importantly, they also serve to occlude the extent to which all women in our society, not just prostitute women, are vulnerable to male violence. Battered prostitutes need protection just as do battered wives, and before either will bring charges against their abuser they need to feel safe from future attacks and reprisals. Appropriate legislation must therefore differentiate between friend and parasite, as well as create conditions 85. 86. 87. 88. 89. Matthews, supra note 42 at 208. Boyd, supra note 5 at 361. Ibid, at 358. Lowman, supra note 21; Shaver, supra note 3. Jennes, supra note 51; Pheterson, supra note 7. 143 CJLS/RCDS Vol. 9 #1 (Spring/printemps 1994) under which every abused woman is either willing to bring charges against the accused, or to stand up in court as a witness.90 Just as the focus on prostitution fails to deal adequately with the problem of economic exploitation so, too, does a focus on pimps fail to deal with the root of the problem in gender-based violence and abuse. The Key to Social and Legal Reform The key to appropriate social and legal reform lies in acknowledging the following four points. First, prostitution per se is NOT different from other work. As in other sectors of the service industry, sex workers are selling their services, not their bodies. Furthermore, the alienation they may experience on the job and the distancing techniques they adopt are not unique to prostitution. Sex work, like other kinds of work such as cooking, child care, and nursing, can be performed as a "labour of love", or as paid labour. As Tabet91 implies, female sex workers challenge, rather than affirm, male sex-right and the dominant and submissive construction of male and female gender roles. Second, prostitution aspractisedlS different from other work. Women dominate the supply side and men the demand side; other than modelling it is probably the one job where women earn more than men; it is a para-legal business (i.e. one that is legal but that cannot be practised legally); the stigma that attaches to the work and the workers is deplorable, as are many of the current market conditions. These characteristics are not the result of buying and selling sexual services, however, but of the current conditions under which it is practised. Third, the evaluation of commercial sex must be conducted in the broader context of human sexuality. As demonstrated above, the potential for abuse is not necessarily higher here than in non-commercial relationships. Failure to recognize the relative independence of the various elements that serve to define a sexual relationship increases the likelihood that abuse in non-commercial relationships will go unrecognized. It also increases the chance that abuse in commercial ones will be disregarded. The fourth and most important element in social and legal reform lies in encouraging sensitivity to the specificity of women, rather than the specificity of prostitution. Our laws must protect individuals from abuse and coercion across all types of human relationships, be they sexual or otherwise. What we must adopt is a non-criminal approach to sex work. Such an approach entails the repeal of all prostitution laws: the communicating and bawdy-house sections, the transporting provision, the procuring provisions, and the section dealing with living on the earnings of a prostitute. Once prostitution has been de-specified, the hazardous conditions can be regulated using criminal laws that are already in place {e.g. 90. Matthews, supra note 42 at 207. 91. Tabet, supra note 64. 144 The Regulation of Prostitution: Avoiding the Morality Traps / Shaver those relating to physical and sexual assault, extortion, intimidation, forceable confinement, theft). The less serious ones can be monitored by using regulations relating to work and workers that are already in place (e.g. the labour code, zoning regulations, health regulations). This will provide sex workers with legal and safe places to conduct their business and at the same time draw attention to the underlying problems. The adequate enforcement of these codes, along with the existing sections of the Criminal Code that sanction disturbing the peace and indecent acts, should also serve to protect residents. In short, I am calling for social and legal reforms that are much more integrative than they have been in the past. It is time to embrace policies designed to improve existing social relationships and equalize the distribution of power between all women and men. The liberation of prostitutes can only be achieved in conjunction with the liberation of all women. 145