The Supreme Court’s unanimous decision to end the way we
manage prostitution by ruling a charter breach provides an 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 endeavour 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 a 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 were 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 a 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 with in 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,
which 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 dialogue 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. The 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 its 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.
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