Look, but don’t touch: Unjust Canadian Prostitution Laws

For my first blog post or “musing,” I decided to approach the subject of the recent challenges to the Canadian laws surrounding prostitution. I felt this subject matter fit most appropriately with the literature we have been discussing over the course of this past week. Furthermore, I feel the manner in which the Canadian Criminal Justice System has approached the issues surrounding prostitution, could and should be considered unjust and intolerable when draped across the landscapes laid out by scholars such as Fuller.

To begin, we first must understand what exactly I am referencing when I speak of the recent challenges to “prostitution laws.” Recently, a group of Vancouver, BC Sex Workers have successfully won the right to appeal the laws surrounding prostitution (Moore, 2012). Importantly, we should note that while the act of prostitution is not, in itself, illegal, many (if not all) other activities surrounding are; including, but not limited to, “keeping a common bawdy house, communicating for the purposes of prostitution or living off the avails of prostitution” (Moore, 2012, Vancouver Sun).

One may ask how this particular case relates to this week’s Food for Thought:

Is there a law or legal regime that you consider to be ‘immoral, unjust, and intolerable’? What makes it so? Provide an explanation of how this law or legal regime could be challenged using the work of Fuller or Finnis.

To understand how we could consider Canadian prostitution laws unjust or intolerable we must look at and understand Fuller’s definition of what makes a legal system or law unjust/invalid.

When looking at the positioning of Lon Fuller’s work, we see an individual who is concerned with the understandings and real-world applications of laws and legal systems. This is illustrated in a fictitious story Fuller wrote regarding a king (Rex) and King Rex’s (failed) quest to write and enact the “perfect” legal system (Pavlich, 2011).

Rather than explain the entirety of story within this blog, I will point to a few pieces of Fuller’s criteria (explained in the tale of King Rex) that directly relate to our topic of Canadian Prostitution Laws.  Fuller suggests that in order for laws to be considered just (or simply qualify as legally binding rules of conduct) they must not be contradictory in nature, they must be understood by those they apply to, and they must be in line with real world practices (Pavlich 2011).

Interestingly, when deciding the merit of the sex-workers constitutional challenge, the Supreme Court looked at three criteria to determine the legitimacy of the challenge (MacKinnon, 2012). This suggests the practiced method of categorically tallying the merits and validity of the law is both common practice and encouraged.

These points, as illustrated in Fuller’s work, exemplify the exact nature of the Canadian Prostitution laws that I find to be so unjust and intolerable.

Firstly, one simply needs to look at the Canadian Criminal Code to see the hypocrisy in permitting certain behaviour but prohibiting everything else that surrounds it; this is the first flagrant infraction relating to Fuller’s principles of non-contradiction. As this is so blatantly hypocritical, I feel no further elaboration is needed.

Secondly, we must understand that while the act of prostitution is legal within Canada, a significant portion of Canadians are most likely not aware of this. This was demonstrated in our CRIMINOLOGY class, as a significant portion of students (approximately 1/3) declared that they themselves were not aware of this. This lack of knowledge is the second infraction of Fuller’s criteria; laws are to be known and understood by those they apply to (in this case, citizens of Canada).

Finally, we must recognize and understand the reality we live in. As we live in a world that is becoming overburdened with rules and regulations, those that we place in charge of managing conduct (the police as well as the rest of the Canadian Criminal Justice System) are becoming overwhelmed with responsibilities; including the monitoring, arresting and processing of those that break the laws surrounding prostitution. However, legality and reality do not connect with respect to prostitution in Canada. As discussed and illustrated in class, many officers chose to exercise discretion with regards to enforcement of prostitution laws; this ranges anywhere from “checking-in” on Sex Workers to ensure their safety, to full arrest and processing). Because of this seemingly arbitrary enforcement action, we must include it as the third and finally infraction relating to Fuller’s criteria; laws must be in line with real world practices.

Undoubtedly, over the course of this first musing we have seen how many of Lon Fuller’s eight criteria for just, tolerable laws have not been followed in relation to Canadian Prostitution laws and because of this, it is easy for one to see why I have chosen this particular law, or laws, as the subject of analysis.

In closing I feel it is important to note that although I personally do not agree (morally) with the acts of prostitution, I feel the laws we currently have in place are “out of touch” with reality and need to be revisited (amended) in order to better serve all those affected by them. In addition to this post, I have included the several links to two different articles as well as a video relating to the recent legal challenges, enjoy!

Article: Vancouver Sex Workers Can Challenge Prostitution Laws

http://www.cbc.ca/news/politics/story/2012/09/21/pol-sex-trade-workers-supreme-court-standing-decision.html

Article: Sex-Trade Workers Group Wins Bid for Court Challenge

http://www.vancouversun.com        /news/Vancouver+workers+have+standing+challenge+prostitution+laws+high/7278681/story.html

Video: Rethinking Prostitution in Canada

References

MacKinnon, L. (2012). Sex-trade workers group wins bid for court challenge. CBCnews.

Retrieved from   http://www.cbc.ca/news/politics/story/2012/09/21/pol-sex-trade-

workers-supreme-court-standing-decision.html

Moore, D. (2012). Vancouver sex workers can challenge prostitution laws: high court. The

Vancouver Sun. Retrieved from

http://www.vancouversun.com/news/Vancouver+workers+have+standing+challenge+pro

stitution+laws+high/7278681/story.html

Pavlich, G. (2011). Law and Society Redefined. Ontario, Canada: Oxford.

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2 Comments

Filed under Musing

2 responses to “Look, but don’t touch: Unjust Canadian Prostitution Laws

  1. sgahunia

    I love your title!

  2. This is definitely an unfolding story, and an excellent topic for analysis.

    You have presented an effective critique of current Canadian prostitution laws, based on Fuller’s framework. For more on the story of King Rex, see http://www.scribd.com/doc/19455269/8FULLER-Eight-Ways-to-Fail-to-Make-Law .

    I concur that the selective nature of the current prohibitions regarding sex work mean that the legal regime fails the test of non-contradiction – and, as you say, borders on hypocrisy. However, I *do* think that further elaboration on this point would be helpful. As you note, there is considerable confusion regarding the precise nature of the law in this area, and it would be interesting to juxtapose the permitted and the proscribed.

    What would have to happen in order to bring the criminal legal regime surrounding sex work in line with Fuller’s theory of the internal morality of law as craft? When I think about the case currently before the court, I am reminded of Fuller’s allegory of King Rex. The disastrous attempts at lawmaking made by Rex were the product of successive attempts at reform – each of which seemed to compound the underlying problems. This sort of piecemeal lawmaking gives rise to ponderous, contradictory, and incoherent systems of law. Can a Supreme Court ruling address the problems in a way that Fuller would find adequate, or is there a need for ground-up law reform?

    Great post!