Wednesday, December 25, 2013

Law, Legislation and Civil Liberty – Prostitution – Opportunity for a new perspective

The Supreme Court’s unanimous decision to end the way we manage prostitution by ruling a charter breach provides opportunity for Canadian leadership to take a new approach to the immediate challenge of prostitution and the more general challenge of managing the balance of law and morality. The issue of prostitution is the perfect lens by which to view moral issues as they relate to legislation and liberty. In part, one must assume, that the Supreme Court of Canada’s (SCC) recent actions are due to the realization that criminalizing personal choice is generating a circumstance where the exploited are more readily exploitable and the marginalized are more marginalized.

In the contemplation of crafting legislation one needs to clear the mind of old bias' and endeavor to ask – what are the outcomes we want in this instance? As Stephen Covey counsels us, begin with the end in mind. The next question is, do the outcomes we are seeking have a chance of landing on the map of reality, and is there a path from here to there? Prostitution, the world’s oldest profession, is here to stay – that much we all can be certain of – eradication is no option, so managing its presence is required.

The challenge with discussing subjects like prostitution, as with all questions of morality, is that people react to them, kind of a “yuk factor” takes hold. If you've read the story of Joshua in the Old Testament, a key component of Joshua’s success was the cooperation of prostitute in housing and protecting his scouts. The scouts having been protected and housed by the prostitute instructed her to hang a scarlet scarf on the front of her house, the army was informed. When Joshua’s army took Jericho the entire population, some 15,000 people, were “put to the sword”, the only ones spared where the prostitute and her family. It is hard to imagine what brought this woman to the “business” of prostitution or how she managed the profession in those times – the important thing to remember here is that, though likely marginalized she - “immoral and all” - saved the lives of all her love one’s, an act worthy of respect. I offer this as a means by which to elevate the reader’s view of people in this line of work.

In contemplating prostitution one needs to remember that the “exploited” should never be punished, very few little girls when questioned say they want to grow up to be street workers that sleep with men in risky circumstances – most people find their way to prostitution, due in large measure, to need for money – the fact they got to that point is a failure of society as a whole in conjunction with the individual – a circumstance that warrants mitigation as opposed to punishment. Criminalizing prostitution pushes the activities of the vulnerable (mostly women) further out of sight of authorities and more into the influence of the exploiters. 
   
There are women, well informed, well-educated, that choose to enter into the “sex trade” for their own reasons – there are men who choose to use these women’s services for their own reasons. If their actions are carried out in private, with private arrangements and in way that has no effect on anyone else, on what basis can the state intervene. You can disagree with their chosen interface on a moral basis, but how can you justify state intervention. Moral matters, matters of faith and religion, are matters to be dealt within civil society. You have the right to advertise your view, to speak your view – the state has no basis to intervene save to manage externalities that arise from such arrangements. People who hold the moral view that this sort of interface is unholy have the right to life absent influence from it, that is an imperative. So it is right and proper for the state to say scantily clad women are disallowed from soliciting the public to engage in sexual actions in exchange for money – clearly there are a number of undesirable effects that can flow from this practice. As Mr. Trudeau said, the government has no place in the bedrooms of the nation; it is fundamental to a free society that people can educate themselves and make choices, different choices; however, the various sectors of society must conduct themselves in a manner that permits the other sectors to function “unaffected”.  

The dialog in the press around prostitution is clouding the issue with ancillary issues like; human trafficking (which is often related to sex), abuse to women (it is often the case women in the sex trade are abused, it is not necessarily the case), exploitation of women (it is often the case women in the sex trade are being exploited – they are nearly always exploited because of the lack of proper resources – how else can you be exploited), the extortion by males of sexual services (there are laws against violence and intimation to be used here). The involvement of the state in the past in the suppression of “voluntary” prostitution is purely a matter of the state imposing a moral position and this imposition has served to frustrate a constructive approach to the issue – it has been the imposition of a moral with grossly immoral outcomes.

In the legislation of morality, in the case of prostitution, the state has forced women into a circumstance where when they are threatened or abused they have no redress via official channels. The solution offered is to make being a “John” punishable or criminal. It is appropriated to punish violence, extortion, exploitation – it is a gross misdirection of state power to criminalize a contractual arrangement between two free, voluntary and informed people – it is inconsistent to permit people to engage each other absent pecuniary elements and to criminalize relations with pecuniary elements. The criminalization of the “Johns” is offered as a solution only because it is seen as an expeditious means by which to manage the negative externalities flowing from the sex trade as it has been practiced in the past under poor legislation. The criminalizing of Johns has no grounding in law, reason or humanitarian concern.  

So where does the solution lie, given 2000 years, or more, of persecuting women and having no effect on curtailing the practice of prostitution – perhaps – in light of our advancements in technology and health, we should consider another tack. We have developed, or allowed to evolve, a moral complex intended to improve human life – this moral complex as it has found expression in legislation related to prostitution has effected harm. Solution lies in removing government from the personal lives of people and concerning government with the public square. If we permit the sex trade to operate within the law and isolate it from those who are offended by it, we will have generated a circumstance the permits women to seek help when they need it from people in the governance complex – from there if people want to leave the trade there is official help, if they choose to stay it is of their own free will and they will have channels to health advice and the full protection of the law.

All people deserve to be educated and permitted to make choices, the government is there to facilitate effective human interaction, the government is not, and never should be, the enforcement arm for theological concern. I find accord with much of the moral complex that flows from the Christian teaching, Jesus never marginalized or punished or judged harshly and nor should we. The moral complex that has evolved around human sexual relations found it origins at a time when health issues related to human sexuality and contraception where without understanding; we have progressed to the point where these things can be managed to a greater degree, our attitude and management of matters related to sexuality need to advance as well.